On June 21, 2022, the Workers’ Compensation Section held a symposium in honour of Ron Ellis. Ron has made an outstanding contribution to our area of law, both as founding Chair of the then Workers’ Compensation Appeals Tribunal and in his extensive academic and advocacy work since then. Our Section’s award for Excellence is fittingly named after Ron.
The Symposium was attended by around 150 people, over 50 of them in person and 100 virtually. This showed the high level of interest in the event, which was one of the best attended which we have ever sponsored.
The Co-Chairs were Julia Noble of WSIAT and Alec Farquhar of Inclusive Design for Employment Access. We were privileged to hear from a wide range of presenters representing all the phases of Ron’s distinguished career.
Opening remarks by Rosemarie McCutcheon
Rosemarie McCutcheon opened the symposium. This was very fitting, given her role as Ron’s successor as Chair of the Tribunal as well as her earlier career in progressively senior positions in the Tribunal. She and everyone at the Tribunal lives within a framework still much marked by Ron’s vision of excellence and integrity in carrying out the role of a neutral adjudicator of vital issues for workers and employers. Rosemarie ended her remarks by thanking Ron for “setting the gold standard to which we aspire."
Before the Tribunal
Professor Mary-Jane Mossman summarized Ron’s impressive career prior to WCAT. This was new information for many in attendance. This included his initial training in engineering, the shift to law, his time as an employer side labour lawyer and his important work as Director of Parkdale Community Legal Services associated with Osgoode Hall Law School. Ron was also Director of Education for the Law Society of Upper Canada and had a similar position for the Federation of Law Societies of Canada. Ron was also a labour arbitrator. Looking back on all this, those attending could see the various experiences that contributed to Ron’s success at WCAT, especially the combination of senior experience at the heart of the legal profession with frontline contact with some of the most vulnerable Ontarians.
Mary-Jane also served as Ron’s thesis advisor at Osgoode more recently. His dissertation there became his book, Unjust by Design. Mary-Jane cited Ursula Franklin’s concept of the “expectation of a principled forum of process” as a foundational one for Ron. This does not mean that the claimant or appellant will always be successful, but that the process provides the full opportunity to advance their case as well as the assurance that the evidence and arguments will be fairly, properly and independently evaluated. Mary-Jane closed by stating that Ron “has gratified all of us while astonishing the world”.
Establishing the Tribunal
A series of presenters spoke to the establishment of the Tribunal. Starting with Ron’s appointment in 1984 and then mainly in 1985 and afterwards, they were given the rare privilege of creating a new public institution from the ground up. These presenters gave us a vivid appreciation of the intensive work and thought that was required.
Jim Thomas was the first Alternate Chair of WCAT. He joined Ron in the very early days. From his own prior legal practice, he knew that there was a clear need for an independent tribunal for workers’ compensation. Jim described the Town Halls that Ron held with stakeholders and representatives, to help build consensus and collegiality. Ron took the same approach within the Tribunal, fostering an environment of collegiality. The Tribunal developed a way to publish its decisions while maintaining confidentiality of the parties involved. They tackled the challenging issue of chronic pain head on. According to Jim, getting the right answer was the singular objective.
Maureen Kenny spoke from the perspective of Tribunal Counsel, which was involved with the many areas of process and guidance to the parties that the Tribunal had to address during the start-up and early years.
Zeynep Onen spoke to the pre-hearing process, which was ground-breaking in its commitment to getting the case ready for the adjudicators and helping ensure a high quality adjudicative process. This was a novel concept at the time. This meant that if necessary, additional information would be sought out. There has been significant uptake for this process since then from many other tribunals. Some of what WCAT developed has literally taken root in the Canadian administrative justice system.
Carole Prest spoke about the role of Counsel to the Chair. This role, then virtually unique to WCAT, had a major responsibility for the Tribunal’s Code of Conduct; ensuring the quality of decisions; as well as training and orienting adjudicators. The result of all this has been a formidable body of jurisprudence of very high quality, providing transparency on the overall approach of the Tribunal and the basis of the decisions being made.
John Moore, long-time Vice-Chair at WCAT and WSIAT, commented on the Tribunal’s high degree of innovation, its willingness to do what had not been done before. In John’s view, Ron created a masterwork of administrative justice. Visionary but also pragmatic.
I believe that for many attendees at the Symposium, the presentation on the creation and early years of development of WCAT was a lesson in the practical implementation of an ambitious vision for access to justice and integrity in adjudication. It gave me a great sense of pride in our area of law and the role that so many of us have had in the evolution of the Tribunal. And seeing how well it has stood the test of time.
Decision 915 was one of Ron Ellis’ crowning achievements. It was the result of his leading case strategy as applied to one of the toughest issues then facing Ontario’s workers’ compensation system – chronic pain. And Ron himself chaired the panel.
Carol Zimmerman provided an overview of the leading case strategy that resulted in Decision 915. There was an impressive commitment of the tripartite adjudication model, with a special panel of two representatives from each side; and a high level of support from Tribunal Counsel for a rigorous exploration of the related medical research and how the then Workers’ Compensation Board was viewing it. Carol documented the long term impact of this decision, including at the Supreme Court of Canada, around chronic pain.
Brian Cook, who was a worker member on the Decision 915 panel and went on to become a Vice-Chair at WCAT/WSIAT and at the Human Rights Tribunal of Ontario, spoke to the role played by Decision 915’s process and outcome in establishing the integrity of the Tribunal and its profile in the employer and worker communities. Brian provided important background on the vital importance of Decision 915 as one of literally thousands of pension appeals underway at the time.
Dan Revington spoke from the perspective of an employer side representative in Decision 915. Dan later became a distinguished General Counsel to the Tribunal.
Richard Fink also spoke from the employer perspective, drawing attention to the doors that Decision 915 opened to the recognition and response by WCB/WSIB to chronic pain and related conditions, especially through the Functional Restoration Program. Richard commented on the more recent decline in recognition of chronic pain conditions and the loss of the system’s capacity to help a significant proportion of these workers return to function and employment.
John McKinnon presented from the worker perspective, and the vital role of the injured worker who was at the centre of Decision 915 – an ordinary frontline industrial worker who played his own role in history. John also recognized the importance of Ron’s earlier work on his own career – John was a student at Parkdale while Ron was Director and later was in the Bar Admission Course when Ron was Director there!
Mary Tzaferis was also a worker representative in Decision 915, later becoming a worker member of the Tribunal. For Mary, the role of the worker and his representative were also very important. She had been very involved in the injured worker movement and saw the Tribunal’s process as finally providing an opportunity for those voices to be heard in an effective forum
Garth Dee spoke as Tribunal Counsel for Decision 915. He has gone on to become a Vice-Chair at WSIAT. Garth presented on the important role of Tribunal Counsel in supporting a complex, large scale hearing process with multiple players and the need for transparent framing of the issues and process as the process evolved.
After the Tribunal
The final section of the Symposium addressed Ron’s academic achievements, and his continuing contributions to the promotion of excellence in administrative justice in Canada.
The first presenter was Paul Daly, University Research Chair in Administrative Law & Governance, University of Ottawa. Paul focused on Ron’s ground-breaking book, Unjust by Design, which framed in stark and deeply researched terms the structural fact that Canada’s administrative tribunals exist in a constantly vulnerable situation, unfortunately often seen as appropriate places for politically motivated appointments and where adjudicators have every reason to believe that there may be negative repercussions if they make decisions which upset the current government. Paul gave high praise to Ron’s book and to Ron as “an engaged citizen” overall , including his recent work with Tribunal Watch Ontario developing model legislation and his proposal for an Adjudicative Justice Council.
Paul Aterman, Chair of the Social Security Tribunal of Canada, presented on Ron’s continuing impact on adjudicative tribunals. This came from his work as Chair of WCAT as well as his foundational work establishing the Council of Canadian Administrative Tribunals. These are all relatively little known organizations, yet they have played a vital role in advancing the cause of excellence and independence in adjudicative tribunals.
The symposium closed with a series of video clips of people speaking from Ron’s long history in the legal and tribunal world. This included Mary Mckenzie, who worked closely with Ron on a challenge around re-appointment to tribunals, a vital area where unfortunately politics often intrudes or where arbitrary decisions are not unusual. And also included Court of Appeal Justice Lorne Sossin and Deputy Attorney General David Corbett, who previously served as Chair of WSIAT.
We then had the benefit of Ron’s own remarks. These were a typical combination of analysis, vision and humour. It allowed Ron to reflect on his long career of service, his writings and the values that he has espoused, sometimes under the most difficult of circumstances. He felt that his work had stood the test of time, and that the key issues which he addressed were still very relevant today. Ron’s view of his legacy is the identification of the structural norms with which our system of tribunals would have to comply if it were to become what it should be.
Those who were able to attend in person then had the opportunity to share further reminiscences with Ron and with each other. We met many of Ron’s family members and Ron acknowledged in particular the vital role of Ruth Ellis, his wife - and advisor and editor.
Throughout the event, I was struck as much by the intangible aspect of Ron’s impact as by the impressive career that he has forged. These intangibles stem from his personal strengths and his deep commitment to a robust and grounded vision of the rule of law linked strongly to access to justice. We can’t have the one without the other.
Please join me in celebrating the invaluable and rich contribution of this great Canadian, Ron Ellis.
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