Administrative Law (Ontario) (SPPA)
(01 March 2019)
Chapter 4 - General SPPA Rules: Hearings
- Types of Hearings
(a) Oral Hearings
(b) Written Hearings
(c) Electronic Hearings
(d) No Hearing on Consent
(e) Mixed Hearings
(f) Merger of Hearings
- Notice of Hearings
(a) General Rules
(b) For Oral Hearings
(c) For Written or Electronic Hearings
(d) Alternative Notice of Hearing
- Parties and Representation
- Default Proceedings
- Control of Proceedings
- Openness of Proceedings
An "oral hearing", held in the presence of the presiding tribunal member/s and all the parties, is of course the traditional legal fact-finding process in the common law world - modelled on the courtroom "trial". For the most part, such hearings include the essential elements of a trial and at least the rudiments of courtroom evidence law.
While the oral hearing remains the dominant form of quasi-judicial administrative hearing, tribunal practice in Ontario has attempted - with limited success - to create and integrate other forms of 'hearings' into its repetoire. These can include written (paper-only) hearings and "electronic" (typically telephone) hearings. In some cases (discussed below) where the parties agree even these limited forms may be dispensed with entirely.
The law in this area speaks of "oral" hearings. While electronic hearings (typically telephone hearings) can be conducted 'orally' in the sense that people are speaking, the term "oral hearings" invariably refers to in-person, traditional hearings.
Tribunal hearing practice in Ontario has lately been heavily-influenced by wholesale case-management policies drawn from the field of business administration. These efforts are part of a recent political trend to adopt and integrate 'efficient' business models into what have been viewed as 'inefficient' legal administrative proceedings.
These policies, in my opinion, are a problem. The farther we get away from traditional sit-down, in-person oral hearings the more the rights of parties are cheapened and fobbed off with second-rate procedures. People whose sole income stream may be at issue may find that their 'appeal' is disposed of by a three-way telephone call between faceless voices using legal terms that are completely foreign to them. People of limited literacy skills may find other rights removed from them after receiving pages and pages of similarly daunting legalese to which they are expected to respond in kind. These inadequacies and problems at least become obvious in a full oral hearing, and as such subject to remedy by the presiding adjudicator.
Further, while corporations litigate months-long trials at public expense trying to make big piles of money bigger, the dispensation of essential justice to actual citizens (employees, social assistance applicants, tenants, etc) by way of phone calls and letters is just plain offensive. There is no escape from the accusation that such procedures offer only second-class justice.
Adoption of these false measures of efficiency, very much like the use of phone screening intakes in human rights and social assistance law (both thankfully since ended) has resulted in the constructive (ie. by effect) denial of access and full airing of grievances to thousands of Ontarians who have been either steered or forced into using these procedures in their attempt to vindicate their legal entitlements. What they get in place of real and time-tested common law legal process is an experience in anonymity and the clear sense that their essential rights are of only cursory importance to the larger legal system.
We are now well-advanced into this two-tiered civil justice system in Ontario, both due to use of these alternative hearing procedures and to many other procedural 'efficiency' measures discussed elsewhere in this Isthatlegal.ca Administrative Law (SPPA)(Ontario) Legal Guide. While financial limitations are undeniable constraints on any administrative operation, in my view it is far better to openly admit an inability to meet the requirements of natural justice and thus open the issue to public debate, rather than to fob people off with these far inferior processes and pretend that nothing is wrong. As the realm of administrative law grows in both size and importance of matters addressed, Ontarians deserve no less.
Where significant social rights are at stake - as they so often are nowadays in administrative law - these parties do not simply return back into some void without larger social consequences. Many of them pinball back and forth through the network of last-resort social programs available for them (welfare, hospitals, jail), often - ironically - at a public expense far greater than the "cost-savings" that these programs lay claim to. Further, counting up this increased financial expense does not even begin to speak to the huge intangible loss to individuals and society in the form of cynicism and the disrepute engendered over the justice system and larger democratic institutions.
3. Types of Hearings
(a) Oral Hearing
An "oral hearing" is defined as one "at which the parties or their representatives attend before the tribunal in person" [SPPA s.1(1)]. As is noted above, while a telephone hearing is in a sense 'oral' in that people are speaking, the term "oral hearing" is used to mean traditional in-person hearings.
The conduct of any particular oral hearing can vary greatly depending upon the tribunal involved, the nature of the evidence and the inclinations of the presiding member. However - generally - oral hearing procedure is modelled on the conduct of a civil court trial.
The following link is to sections of the Isthatlegal.ca Small Claims Court Legal Guide that deal with the "Presentation of Evidence" and "Liability and Remedy Submissions". While these passages speak of "damages awards" rather than favourable administrative declarations and orders, the general principles outlined there apply to most tribunal proceedings.
Small Claims Court (Ontario): Ch.14, s.3: Trial: Trial Sequence
(b) Written Hearings
A "written hearing" is defined as one held "by means of the exchange of documents, whether in written form or by electronic means" [SPPA s.1(1)].
The SPPA does not set out general rules for the conduct of written hearings, rather it delegates such rule-making to the tribunals themselves by virtue of SPPA s.25.1 [see Ch.10: "Tribunal Rule-Making Authority: Overview"].
(c) Electronic Hearings
An "electronic hearing" is defined as one held "by conference telephone or some other form of electronic technology allowing persons to hear one another".
The SPPA does not set out general rules for the conduct of electronic hearings, rather delegating such rule-making to the tribunals themselves under s.25.1 SPPA [see Ch.10: "Tribunal Rule-Making Authority: Overview"].
(d) No Hearing on Consent
Unless barred by another Act or regulation, as a general SPPA rule a hearing may be dispensed with entirely if the parties so consent [SPPA s.4.1].
Presumably such a proceeding would be decided on the written pleadings (initiating documents) held in the tribunal file at that time. Inviting any additional documentation risks converting the procedure into a "written hearing" as discussed above.
(e) Mixed Hearings
Assuming that Tribunal rules are established under s.25.1 SPPA for the conduct of written or electronic hearings then a tribunal may "hold any combination of written, electronic and oral hearings" [SPPA s.5.2.1].
(f) Merger of Hearings
It is a general principle of adjudication that efficiency within and amongst proceedings should be achieved wherever fair and possible. One aspect of this principle is that, where fair and possible, a multiplicity of proceedings involving the same facts or issues is to be avoided [Courts of Justice Act s.138], and that parties should not be allowed to split their case into more than one proceeding.
Similarly, it is a general SPPA rule that where two or more proceedings involve the same or similar issues of fact, law or policy then the tribunal has discretion to [SPPA s.9.1(1)]:
Consent of the parties as required above can be dispensed with if another Act or regulation otherwise gives the tribunal authority to merge the proceedings or any part of them, or to hear the proceedings at the same time [SPPA s.9.1(4)].
- merge the proceedings or any part of them, with the consent of the parties;
- hear the proceedings at the same time, with the consent of the parties;
- hear the proceedings one immediately after the other; or
- stay (suspend) one or more of the proceedings until after the determination of another one of them.
Where two proceedings are heard at the same time, evidence admitted in one of them may be used in the other, if the parties to the other proceeding so consent [SPPA s.9.1(5)].
The discretionary merger authority set out above does not apply where a proceeding is governed by the "Consolidated Hearings Act" [SPPA s.9.1(2)]. This is a broad statute sometimes used in municipal and environmental cases where hearings regarding numerous approvals or authorizations are required. It is beyond the scope of this present Legal Guide to discuss the Consolidated Hearings Act in any depth.
There is also a partial exception to this discretionary merger authority where another Act or regulation requires that the proceeding be heard in private or when the tribunal has ordered the hearing closed to the public for reasons of public security or unwarranted exposure of private financial or personal matters [see s.9 below: "Openness of Proceedings" - in particular the discussion of SPPA s.9(1)]. Where this exception applies the tribunal does not have the discretion to merge the proceedings or any part of them, or to hear the proceedings at the same time [SPPA s.9.1(3)].
4. Notice of Hearings
(a) General Rules
Of course, parties to a proceeding are entitled to a Notice of Hearing.
Regardless of the type of hearing being conducted, it is a general SPPA rule that "reasonable notice" (ie. adequate time to prepare for the hearing) shall be given by the tribunal to the parties [SPPA s.6(1)]. The SPPA does not elaborate on the details of this any further, so adequate time notice must be assessed in the facts of each case. Prejudice caused by short notice can be used to argue for an adjournment (see s.8 below).
Case Note:All Notices of Hearing must "include a reference to the statutory authority under which the hearing will be held" [SPPA s.6(2)].
In the case of Ball v Kingston Area Taxi Commission (Div Ct, 2011), six days notice of hearing was held inadequate for these purposes, particularly in light of the fact that the applicant was incarcerated at the time and had sent a layperson to speak to the matter. In my experience and opinion much more than six days is required, even where the affected party is not under such obvious restrictions. This is particularly the case where parties are under pre-hearing documentary or other disclosure deadlines which are conditioned by the date of hearing (eg. the 30-days-before-hearing documentary disclosure duties before the Social Benefits Tribunal).
(b) For Oral Hearings
A Notice of Hearing for an oral hearing must include:
- "the time, place and purpose of the hearing"; and
- "a statement that if the party notified does not attend at the hearing, the tribunal may proceed in the party's absence and the party will not be entitled to any further notice in the proceeding." [SPPA s.6(3)]
Case Note: (c) For Written or Electronic Hearings
In Law Society of Upper Canada v Igbinosun (Ont CA, 2009) the court upheld an earlier Divisional Court ruling that a Law Society Hearing Panel had breached natural justice by failing to grant the appellant an adjournment when he had retained new counsel and, when subsequently proceeding in his absence, by failing to provide him with adequate Notice of the potential sanctions he might face. The Court of Appeal held that, since the adjournment refusal was unreasonable, the SPPA s.6(3)(a) requirement that the Notice state the "purpose of the hearing" was not avoided by the SPPA s.7(1) default provision that excused notice where the party did not attend the hearing.
Where tribunals have made rules under s.25.1 SPPA which govern procedures for written or electronic hearings, specific Notice of Hearing requirements should exist for such hearings.
Notices for written hearings are essentially schedules for the exchange of documents.
(d) Alternative Notice of Hearing
Where the tribunal is of the opinion that the number of parties or "any other reason" makes it impractical to serve individual parties with Notices of Hearing, then it may give reasonable notice by "public advertisement or otherwise as the tribunal may direct" [SPPA s.24(1)]. Such a procedure is more commonly used in municipal property issues regarding use of public lands, though the normal practice by far is individual notice.
5. Parties and Representation
The "parties" to a proceeding are typically those entitled to full participation on an equal basis with other parties (ie. receipt of documents, adducing of evidence, making of legal submissions, etc).
Party status is usually self-evident from the context of any particular proceeding, and it includes those directly effected by the exercise of the statutory power of decision that is at issue. Normally party-status is established either by [SPPA s.5]:
- the parent statute of the tribunal; or
- the common law (which essentially allows the presiding member to admit as parties those whose interests are effected by the exercise of the statutory power of decision).
All parties to a proceeding are entitled to representation [SPPA s.10], which normally includes both representation by a lawyer or by a paralegal (by virtue of the Access to Justice Act, 2006 paralegals came under Law Society licencing).
Additionally, the Law Society Act and By-Laws allows some non-licensees to represent parties in some legal proceedings, typically when their normal business activities naturally involve them in such proceedings (eg. union or employer officials, corporation directors, etc) - but also, in some circumstances: friends, neighbours and family members. These exemptions are listed at this link (you should check them carefully before attempting to act in this capacity):
Law Society By-law 4, s.30: Providing Class P1 Legal Services without a Licence
However the Tribunal may "exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser." [SPPA s.23(3)].
Sternberg v Ontario Racing Commission (Div Ct, 2008)
In this case, the applicant lawyer sought to quash a decision that he be barred from appearing before the Commission until he apologized for alleged misconduct. The court application was grounded in bias as the Commission panel making the misconduct finding included two of the original members whom he is alleged to have offended, and because the reasons in the contempt decision were prepared before the hearing was conducted (and as well mistated the fact that he had not apologized).
The application was allowed for these reasons, and additionally because the 'misconduct' hearing was essentially a contempt hearing, which jurisdiction resides with the Divisional Court [SPPA s.13(1)(c)] and - at least with respect to professional discipline, the Law Society - not the Commission. As well, the applicant was denied the oppourtunity to make submissions as to penalty.
Thomson v Sisters of St. Joseph (Div Ct, 2010)
This is an interesting struggle by a tenant and his unlicensed representatives (that is, he attempted to rely on legal representation from non-Law Society members - ie. people who were not licensed lawyers or paralegals). At the Board level, extended proceedings against the tenant for non-payment of rent were disputed by him under the (vindicated) argument that past Notices of Rent Increase were illegal and thus void, raising directly the issue of 'just what was the rent due anyway'.
The landlord sought by motion to remove the tenant's unlicensed representative under SPPA s.23(3). At the hearing of that motion the tenant attended with a new unauthorized representative, and the LL sought on the spot to amend their motion to exclude that representative, which the Board did. As a result of that the tenant asked for an adjournment to find new counsel, which was denied. The tenant then walked out of the hearing and, absent any contrary evidence, the LL's application to evict was granted.
The court held that the refusal to grant to adjournment was a denial of natural justice and granted the appeal, ordering a new hearing on all issues.
6. Default Proceedings
Failure of a party to attend at an oral hearing for which Notice of Hearing has been given may result in the hearing proceeding without them, and that party receiving no further notices in the proceeding [SPPA s.7(1)].
Similar default proceedings exist for written and electronic hearings [see Ch.11: "Tribunal Rule-Making Authority: Written and Electronic Hearings"].
7. Control of Proceedings
Tribunals may make such orders and give such directions at an oral or electronic hearing as it considers necessary "for the maintenance of order at the hearing". On a failure to obey or comply with such orders or directions by any person (thus including both parties and witnesses), the tribunal may call "for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose" [SPPA s.9(2)].
Obviously use of such assistance is rare, but it is not uncommon for modern administrative tribunals to employ security personnel in their offices, sometimes closely in relation to hearings.
As noted above [s.4], it is a general SPPA rule that tribunals shall give "reasonable notice" (ie. notice with adequate time to allow a party to prepare for the hearing) of a hearing to the parties [SPPA s.6(1)].
However, it is also a general SPPA rule (applicable to all types of hearings) that the tribunal may adjourn the hearing either "of its own motion" or "where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held" [SPPA s.21].
It is common for tribunals to unilaterally reschedule hearings due to their own administrative needs or member availability. Typically such adjournments will be made to dates far enough ahead so that the parties once again have "reasonable notice" to arrange their other affairs, witnesses and such (ie. bumping dates backward or forward a few days will normally only be done on consent of all the parties).
Depending on the rules and informal practice of the tribunal you are dealing with - and the inclination of other parties' and their representative - it is common for parties to themselves initiate adjournments without the need for an attendence or other formal procedure to decide. Parties will typically telephone and/or send a letter to all other parties (unless they are noted in default: see s.6 above) explaining the reason for the adjournment and suggesting alternative dates. Brief written consents are then prepared expressing consent to the adjournment and a range of other mutually-available dates (they need not be too formal - sometimes a signed hand-note stating "approved" in the margin of an adjournment request letter is adequate). The consent documents are then provided to the tribunal as early as possible before the scheduled hearing date, and the typical result (unless the present hearing date is looming close) is that the Tribunal will administratively change the date. Where present dates are close it is typical practice to require the requesting party to speak to the adjournment request as a preliminary matter at the hearing (a risky prospect unless one is prepared to proceed).
That said, several tribunals now have established specific 'Practice Directions' which set out their policies and procedures for adjournment requests. The website of the Tribunal you are dealing with should be checked for just such a policy.
Adjournment requests made without prior notice at the date of hearing should only be based on exigent and unforeseeable circumstances such as the unavailability of a witness or party, illness, illiteracy, absence of translator, late retention of representative, or emergencies.
Of course, parties on their own (ie. with all-party consent) do not have a general authority to reschedule hearings as a matter of right. It is still for the tribunal to approve any adjournments.
9. Openness of Proceedings
The general SPPA rule is that an oral hearing is open to the public. The tribunal may vary from this rule if it is of the opinion that [SPPA s.9(1)]:
The SPPA is silent on the use of electronic media in tribunal hearings, and general public access to tribunal files (it addresses this only re written hearings: see Ch.11: "Tribunal Rule-Making Authority: Written and Electronic Hearings"). If the issue arises, a party may wish to have regard for comparison to specific court rules which address these issues. They are discussed in the Small Claims Court program at the following link:
- "matters involving public security may be disclosed", or
- "intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public."
Small Claims Court (Ontario): Ch.14, s.4(e): Trial: Trial Issues