Marshall Law represents former adjudicator in wrongful dismissal case

As featured in the Globe and Mail

Marshall Law is representing a former adjudicator with the Landlord and Tenant Board in a wrongful dismissal case in which our client was subjected to a toxic work environment. Even judicial workplaces aren’t immune to toxicity .The Globe and Mail has written about our case, below:

Lawsuit claims internal turmoil at Ontario’s Landlord and Tenant Board

A former adjudicator with the Landlord and Tenant Board suing the Ontario government and his former supervisor for wrongful dismissal has claimed his judicial independence was undermined by a combination of a toxic workplace and micromanaging.

The claim filed in November, 2024, by Elan Shemtov offers a rare glimpse of the inner workings of one of the province’s busiest judicial workplaces.

The claim alleges that LTB vice-chair Sean Henry (a veteran lawyer and former policy adviser with the Ministry of Municipal Affairs and Housing who was appointed to the position in 2022) once screamed “that’s not how we f—ing do business around here,” at Mr. Shemtov, and on another occasion suggested he “didn’t give a rat’s ass” about a ruling in another matter.

Mr. Shemtov was appointed to a two-year term as a part-time adjudicator in February, 2023, part of a wave of adjudicators hired with the goal of taming the crippling backlog at the LTB (as of the last annual report filed by Tribunals Ontario there were still 46,632 cases in its backlog as of July, 2024).

Despite his part-time employment, Mr. Shemtov describes being scheduled to work as many as seven days a week. More than a year after he was first appointed, in May, 2024, Mr. Shemtov claims his hours were reduced to practically nothing, in what he calls a breach of his contract and a form of constructive dismissal. He’s seeking more than $860,000 in compensation and punitive damages.

“I do a lot of constructive dismissal cases. Very rarely are you going to see a case like this one where it involves an adjudicator with the tribunal system,” said Kathryn Marshall, founding partner of Marshall Law, who is representing Mr. Shemtov. According to Ms. Marshall, a key difficulty for judicial appointees who experience workplace issues is that their jobs exist in a grey area of employment law where they often don’t have formalized structures like human resources departments to mitigate disputes. “There was really no one he could go to; the person who was mistreating him was the person in charge,” she said.

None of the allegations have been proven in court, and a spokesperson for Tribunals Ontario declined to comment on the case and did not respond to questions about its internal systems or policies governing adjudicators.

In an interview with The Globe, Mr. Shemtov alleged he was the target of a campaign of retaliation after complaining to a mentor inside the LTB about Mr. Henry. He claims he began receiving dozens of “urgent” e-mails, and demands for phone calls from Mr. Henry and numerous demands to review his work.

“I had to send him every single endorsement, thousands had to be sent for review,” said Mr. Shemtov, who felt this level of oversight was onerous and specific to him. “There’s no way you can possibly do that with all the other members, do these mandatory reviews.”

In 2019, the Court of Appeal of Ontario found in Shuttleworth v. Ontariothat where an adjudicator had their ruling overridden by a superior there was a “reasonable apprehension of a lack of independence.” The court found that a lack of a formal policies and procedures governing these interactions contributed to the lack of independence for adjudicators.

Tribunals are often referred to as “quasi-judicial” bodies, but adjudicators are empowered to make binding legal decisions for parties on potentially life-altering matters such as evictions, insurance benefits and human rights protections.

According to Brian Cook, a senior member of the non-partisan group Tribunal Watch Ontario, a critical difference between tribunals and the rest of the justice system is the tenure of the appointees. Unlike judges – who can serve until the age of 75 – in Ontario tribunal adjudicators are limited to an initial term of just two years before they can be reappointed.

“Adjudicators have this very tenuous job security of one term at a time,” said Mr. Cook, who speaks from personal experience having served as vice-chair of the Human Rights Tribunal of Ontario from 2008 to 2018. “It’s a serious problem if you know that someone is watching you and may not like the decisions. It also demoralizes everyone else: ‘Why was Joe not reappointed? Maybe it was that one case?’”

Mr. Shemtov alleges Mr. Henry made statements to him such as: “You need to remember that everything you write or say really paints a bigger target on your back” or “If you want to go your own course then I’ll be honest you won’t be reappointed when that decision is made.”

Mr. Shemtov also alleges an altercation over LTB scheduling policy around so-called own-use evictions in which Mr. Henry commandeered his virtual hearing room on Zoom to call a halt to a hearing and dismiss the parties. “This was the most angry he was, ever,” said Mr. Shemtov, who said the hearing involved a landlord who had waited for a year to get an application for eviction heard. “He’s telling me ‘You have no say in policy; you cannot say any application has to be scheduled.’”

Virtual hearing rooms are treated as courtrooms under Ontario law, and while Mr. Cook said there may be legitimate situations where a vice-chair can intervene, Mr. Shemtov’s description is the equivalent of one judge barging into another judge’s hearing room to shut it down.

“I’ve never heard of anything like that happening,” Mr. Cook said. “You’re clearly not independent if that level of thing is going on.”

By Shane Dingman – orginally appeared in the Globe and Mail: https://www.theglobeandmail.com/real-estate/article-lawsuit-claims-internal-turmoil-at-landlord-and-tenant-board/