Administrative Law (Ontario)(SPPA) Guide
(15 July 2020)
Chapter 12 - Tribunal Rule-Making Authority:
Alternative Dispute Resolution (ADR)
- Tribunal Rule-Making Authority (ADR)
- Pre-existing ADR Procedures Grandparented
1. Tribunal Rule-Making Authority (ADR)
A tribunal has authority under s.25.1 of the Statutory Powers Procedures Act (SPPA) to make rules regarding alternative dispute resolution (ADR) for the purpose of resolving proceedings or issues within them. ADR can include "mediation, conciliation, negotiation or any other means of facilitating the resolution of issues in dispute" [SPPA 4.8(1,2)].
The following are terms which tribunals must abide by when making s.25.1 rules regarding ADR:
By my reading the SPPA is ambiguous on the issue of mandatory participation in ADR. Section 4.8(1)(b) allows a Tribunal which has made ADR rules under s.25.1 to conduct such proceedings only if "all parties consent to participating in the alternative dispute resolution mechanism", while s.4.8(4) reads:
- ADR may cover all or part of the issues in the proceeding [SPPA s.4.8(1)];
- ADR rules must include guidelines dealing with when an ADR settlement must be reviewed and approved by the tribunal, and addressing the requirements of any law requiring an order of the tribunal to implement the settlement [SPPA s.4.8(3)].
s.48(4)The referred-to sub-section [4.8(3)] addresses any need to confirm ADR resolutions by formal orders of the Tribunal. I welcome anyone's explanation of these apparently conflicting provisions.
A rule under subsection (3) may provide that participation in an alternative dispute resolution mechanism is mandatory or that it is mandatory in certain specified circumstances.
2. Pre-existing ADR Procedures Grandparented
As well, any ADR provisions grounded in other statutes that apply to the proceeding still apply, if the other statutes were in force at 14 February 2000. This provision is meant to 'grandfather' in any pre-existing ADR tribunal procedures (until they are amended or repealed), but to require use of the SPPA rule-making provisions when subsequent ADR rules are created [SPPA s.4.8(6)].
Mediators may be anyone so appointed, including tribunal members - but such tribunal members may not subsequently hear the matter, unless the parties so consent [SPPA s.4.8(5)].
No one appointed in ADR to facilitate settlement of a proceeding may be compelled to testify or produce documents with respect to matters that came to their knowledge in the course of their ADR duties. The prohibition on such settlement-related testimony applies both to proceedings to which the ADR applies and to any other administrative or civil court proceedings [SPPA s.4.9(1)]. Similarly, no notes or records kept by such a person are admissible in any adminstrative or civil court proceeding [SPPA s.4.9(2)].
These rules are consistent with the common law principle of 'negotiation privilege' that exists in civil litigation. They are intended to allow parties to speak freely during such negotiations without having anything they say, or documents that they produce for negotiation purposes, used in evidence later at the full hearing.