Statutory Powers Procedure Act (Ontario)(SPPA)
Chapter 7 - General SPPA Rules: Orders
- Interim and Interlocutory Orders
- Final Orders
(b) Reasons for Decision
(d) Effective Date of Service
- Costs and Interest
- Variation of Orders
This chapter discusses the general Statutory Powers Procedures Act (SPPA) rules that govern tribunals when they are making interlocutory orders, final orders and decisions, and variance of such orders.
Additional order-related rules governing costs awards [Ch.16], service of decisions [Ch.15], review of such orders [Ch.17] and orders to control process [Ch.18] may be made by a tribunal under its s.25.1 authority. These authorities are discussed in their separate chapters as noted.
2. Interim and Interlocutory Orders
In the SPPA legislation (ie. the 'administrative') context, the term 'interim' covers what are referred in the courts as both 'interim' and 'interlocutory' orders - both of which can usually be safely equated with 'temporary' orders. But in the courts the term 'interim' usually means 'until the next appearance', while 'interlocutory' means 'until the final order is issued'. The SPPA legislation uses only the single combined term of 'interim' to refer to both temporary orders.
However the court usage quite naturally has seeped into the administrative law world, so be prepared for ambiguity in the use of these terms.
The more essential distinction is that between the temporary 'interim/interlocutory' orders (on the one hand), and 'final' orders (see s.3 below) on the other hand. Final orders (on their face) finally dispose of the issues in contention in a case.
This distinction arises very often when deciding whether an order is 'appealable' (or alternatively, reviewable by judicial review). This matters because the common law has a rule that interlocutory administrative orders are not appealable or reviewable (this is called the doctrine of Prematurity (also 'Adequate Alternative Remedy'), as it is considered more efficient if the parties wait until the entire administrative proceeding is completed - ergo, 'final'. There are some exceptions, but the rule is quite strict otherwise.
In the courts, the 'final versus interlocutory' distinction is also relevant to 'what body' a review may be brought before. The choices of such an 'appeal route' in the Ontario system are typically: the Superior Court, the Divisional Court and the Court of Appeal). The courts are full of cases reflecting how notoriously difficult the 'final v interlocutory' distinction is to make with any certainty [see Final versus Interlocutory]. However, in the simpler administrative situation it's usually easier to ascertain - ie. you just wait until the tribunal hearing is 'over'.
A tribunal may make 'interim' decisions and orders, with or without conditions, and without reasons [SPPA s.16.1].
Tribunals always have jurisdiction to make interlocutory procedural orders, and they may be heard by a panel of one or more members assigned by the Chair [SPPA s.4.2(1)].
3. Final Orders
As is noted above, 'final orders' are those that, at least on their face (they may be altered by further proceedings such as variations, reconsiderations, appeals and judicial reviews), finally dispose of the issues in contention in the case.
Final decisions and orders must be in writing and, if so requested by a party, be accompanied by reasons [SPPA s.17(1).
(b) Reasons for Decision
The giving of thorough written reasons for an order is useful for a number of purposes, including both appellate review and ensuring that adjudicators are exercising the type of discipline that we are entitled to expect of them in their important roles. Busy tribunals can be tempted to resort to reasons which simply recite the legislation and state "template" fact-finding and legal conclusions. This is a problem when considering the basis for review or appeal of such decisions, and generally for the acknowledged principle that justice should be transparent.
This concern give rise to the much-litigated issue of when "reasons for decision" are adequate: Reasons for Decisions (see also: Administrative - Reasons for Decision).
For example, in Gray v Ontario (Director, ODSP) (Ont CA, 2002) the Court considered the adequacy of a tribunal's reasons where the parent statute read: "the Tribunal's decision shall include the principal findings of fact and its conclusions based on those findings". It applied statements by Estey J from the Supreme Court of Canada in the case of Re Northwestern Utilities Ltd. and City of Edmonton (SCC, 1978) regarding the importance of providing reasons for decision, as follows:
This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal and if taken, the opportunity in the reviewing or appellate tribunal of a full hearing which may well be denied where the basis of the decision has not been disclosed.Essentially then, "reasons for decision" should include fact-findings, the reasoning for the fact-findings, and a logical integration of these fact-findings into the legal rules applicable. Reasons should be adequate to expose the process of adjudication to a reviewing body or court, and - perhaps more importantly - to reveal the tribunal's thought-processes to inform arguments on appeal or judicial review.
... It is not enough to assert, or more accurately, to recite, the fact that evidence and arguments led by the parties have been considered. That much is expected in any event.
.... The failure of the Board to perform its function under s. 8 included most seriously a failure to set out "the findings of fact upon which it based its decision" so that the parties and a reviewing tribunal are unable to determine whether or not, in discharging its functions, the Board has remained within or has transgressed the boundaries of its jurisdiction established by its parent statute. The obligation imposed under s. 8 of the Act is not met by the bald assertion that, as Keith J. succinctly put it in Re Canada Metal Co. Ltd. et al. and MacFarlane (1973), 41 D.L.R. (3d) 161 at p. 171, 1 O.R. (2d) 577 at p. 587, when dealing with a similar statutory requirement, "my reasons are that I think so".
Final decisions and orders, including any reasons, shall be sent to all parties (or their representative) by mail, by email, or by fax. A tribunal may make other s.25.1 rules regarding service of decisions as long as the methods used make a "proof of receipt" available [SPPA s.18(1)] (see Ch.15: "Tribunal Rule-Making Authority: Service of Decisions").
Where the tribunal is of the opinion that the number of parties or "any other reason" makes it impractical to serve individual party with any orders, final decision or reasons for decision [as per SPPA s.18], then it may give reasonable notice of same by "public advertisement or otherwise as the tribunal may direct" [SPPA s.24(1)]. Such a Notice shall inform the parties where copies of the order, final decision or reasons for decision may be obtained [SPPA s.24(2)]. Such a procedure would be unusual (perhaps most common in municipal property cases), and the normal practice by far is individual-mailed notice.
(d) Effective Date of Service
The date on which a decision or order is deemed to have been received is important as it frequently triggers the commencement of any appeal, review or reconsideration limitation periods. But of course not all forms of service are immediate. This gives rise to the concept of 'deemed service', that is: the date at which service is deemed to have been achieved.
Mail shall be sent to the last known address and shall be deemed to have been received five days after mailing [SPPA s.18(2)]. Fax or email delivery shall be deemed to have been received the first non-holiday day after it was sent [SPPA s.18(3)]. Holidays are listed in the Small Claims Court (Ontario) Legal Guide:
Small Claims Court (Ontario): Ch.7, s.4: "Time Limits: Holidays
Where a tribunal has made rules under s.25.1 regarding alternative service of a decision, those rules govern the deemed date of receipt [SPPA s.18(4)].
Deemed date of receipt may be extended by the tribunal where a party has failed to receive the decision or order by reason of good faith "absence, accident, illness or other cause beyond the party's control" [SPPA s.18(5)].
4. Costs and Interest
It is common practice in court proceedings for the winning party to be paid 'legal costs' by the loser. While there are many variations to this principle, it normally includes at least a part of the legal fees and usually all of the disbursements incurred in the conduct of the proceeding.
However, there is no general SPPA or common law authority in an administrative tribunal to make costs orders. Such authority only exists under the SPPA where the tribunal has made rules under its SPPA s.17.1 authority (see Ch.16: "Tribunal Rule-Making Authority: Cost Awards"), and then only where the behaviour of the 'paying' party has been "unreasonable, frivolous or vexatious or a party has acted in bad faith" [SPPA s.17.1(2)].
Any prior cost rules established under other statutes (if in force at 14 February 2000) which deal with costs - in circumstances other than those for which tribunal rules have been established above - still apply [SPPA s.17.1(6)].
Money orders of the tribunal shall state the principal sum and, if interest is payable, the rate and date from which it is payable [SPPA s.17(2)]. In court judgments it is normal practice to request and be granted 'pre-judgment interest' covering the period between the commencement of the proceeding and the judgment, and - while this provision does allow tribunals to do that - they normally don't.
While generally, most tribunals do not provide for the awarding of interest in their orders - once an order is filed with a court for enforcement it attracts post-judgment interest in accordance with court rules. This is discussed in Ch.8: "Enforcement".
5. Variation of Orders
A tribunal may at any time correct a typographical error, error of calculation or similar error made in its decision or order [SPPA s.21.1]. This is a general SPPA tribunal authority.
A tribunal also has s.25.1 rule-making authority to establish more extensive rules for reviewing or 'reconsidering' its own orders. Such rules may authorize a tribunal to, within a reasonable time, "review all or part of its own decision or order", subsequent to which it "may confirm, vary, suspend or cancel the decision or order" [SPPA s.21.2(1)(2)] (see Ch.17: "Tribunal Rule-Making Authority: Review of Orders").
If any other statutory provisions (that is, other than in the SPPA) regarding variation or decisions and orders exists, they override any s.25.1 tribunal rules in the event of conflict [SPPA s.21.2(3)].