Administrative Law (Ontario)(SPPA)
(01 March 2019)
Chapter 14 - Tribunal Rule-Making Authority:
- SPPA Disclosure Authority
- Comment on Jurisdiction to Make Rules for General Disclosure
It is almost universal practice in the courts and modern administrative tribunals to make rules requiring broad pre-hearing disclosure of documentary evidence between the parties (the Landlord and Tenant Board under the Residential Tenancies Act, which decides disclosure on a case-by-case basis, is a notable exception). This chapter discusses the jurisdictional basis for such rules.
2. SPPA Disclosure Authority
(a) General SPPA Authority to Order Disclosure
The SPPA provides that if a Tribunal makes s.25.1 rules addressing document disclosure then it may, at any stage prior to the completion of the hearing, "make orders" for the following [s.5.4]:
Any s.5.4 tribunal-made rules must be consistent with the above authorities [SPPA s.25.1(3)], subject only to waiver on all-party consent if such rules so allow [SPPA s.4(2)].
- the exchange of documents;
- the oral or written examination of a party; (this provision presumably provides for out-of-hearing examinations, with the taking of written transcripts - for example where a witness is not in practically available to testify in person);
- the exchange of witness statements and reports of expert witnesses;
- the provision of particulars;
'Particulars' is a concept drawn from civil litigation. A "demand for particulars" is a request by another party for a more detailed written specification of events and facts alleged than is contained in the existing pleadings or documentation.
- any other form of disclosure.
The tribunal's disclosure authority does not extend to ordering the disclosure of privileged information [SPPA s.5.4(2)] ["privilege" is discussed in Ch.6, s.2(j): "Evidence: Civil Evidence Background: Privilege"].
Case Note: (b) O'Connor Disclosure Motions?
In the case of Jocko v Criminal Injuries Compensation Board (Ont Div Ct, 2009) the court held that s.5.4 did not authorize the Criminal Injuries Compensation Board to order pre-hearing documentary disclosure from non-parties (in that case police officers), be they witnesses or not. The Board's only authority to compel documentation from non-parties lay in it's general authority to issue summons to witnesses [SPPA s.12], which could specify the documents that non-party witnesses should bring with them to the hearing.
An original attempt to persuade a tribunal (in this case the Discipline Committee of the Ontario College of Pharmacists) to compel pre-hearing disclosure of documents from third parties (ie. non-parties to the proceeding) was the subject of a judicial review application in the case of Ibrahim v Ontario College of Pharmacists (Ont Div Ct, 2011). While that case addressed the narrow issue of whether the requested records should be ordered produced within the judicial review application (which motion was dismissed), the tactic attempted by counsel at the original hearing raised the prospect of production rights established within the criminal law context being applied to administrative proceedings. The applicant argued that the Supreme Court of Canada criminal case of R v O'Connor (SCC, 1995) [paras 58-74], which held that disclosure rights under Charter s.7 to make "full answer and defence" could also be located with the common law doctrine of 'abuse of process', a principle that has broad application to all legal processes.
This opened the door to advance such pre-hearing disclosure arguments without recourse to s.7 ('life, liberty and security of the person') of the Charter (which was not applicable in Ibrahim), nor would it be in most administrative proceedings.
Keeping in mind that SPPA s.23(1) authorizes tribunals to prevent "abuses of process" in matters before it [see Ch.10, s.5: "Abuse of Process"], this approach is an interesting one that bears further consideration as to whether it can be taken from the criminal law context in which it arose, and be transferred effectively to everyday administrative proceedings.
3. Comment on Jurisdiction to Make Rules for General Disclosure
Typically, document disclosure in Tribunals is not the subject of a particular order within a proceeding but is required under the tribunal's general standing disclosure rules. As such, any Tribunal basing it's standing disclosure rules solely on SPPA s.5.4 - which only authorizes rules that then authorize a presiding tribunal to make disclosure orders - is likely to be on dubious jurisdictional grounds. Extending it to a general disclosure rule would have to rely either on the more general s.25.1 authority (which is questionable given the specificity of s.5.4), or on express provisions in the tribunal's governing statute [the tribunal's authority to order disclosure is subject to any other applicable statute or regulation: SPPA s.5.4(1.1)].