Statutory Powers Procedure Act (Ontario)(SPPA)
Chapter 10 - Tribunal Rule-Making Authority: Overview
- Tribunal Rule-Making Authority (s.25.1 SPPA)
- Specific Rules Authorized
- Time Frames Must be Established
- Tribunal Rules Publically-Available
This chapter deals with the authority that tribunals governed under the Statutory Powers Procedures Act (SPPA) have under SPPA s.25.1 (and other procedure-specific SPPA provisions) to create rules which govern their own procedures. However it does not discuss or explain the specific rules which any tribunal may have made under this authority - those may be located at the website of the tribunal that you are involved with. Put another way, this chapter is this about the 'meta-rules' that govern a tribunal when it is making rules governing it's own conduct - ie. it's about 'rules for rule-making'.
1. Tribunal Rule-Making Authority (s.25.1 SPPA)
Tribunals to which the Statutory Powers Procedures Act (SPPA) applies (see Ch.2: "When the SPPA Applies") have a general power to make rules "governing the practice and procedure before it" [SPPA s.25.1(1), 25.0.1], as long as such rules are consistent with the SPPA and other related statutes, particularly the parent statute of the tribunal involved [SPPA s.25.1(3)]. An extended discussion of situations where s.25.1 tribunal rules (and other rules) conflict with other Acts and subordinate rules is located in Ch.1, s.4: "Tribunals and Their Rules: Conflict Between Rules".
These rules require no further authorization other than that of the tribunal and are effective once made - in fact they are effective by the act of their being made. They are not Regulations and as such do not require additional cabinet or Ministerial approval: SPPA s.25.1(5)] .
The SPPA and rules made under s.25.1 [and 17.1 (costs)] shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits" [SPPA s.2]. This principle has been endorsed by the courts in the leading Court of Appeal case of MTHA v Godwin (Ont CA, 2002) (see Ch.1 "Tribunals and Their Rules"), where these rule-making authorities were interpreted - and thus applied - quite broadly by the courts (and thus the tribunals that they governed).
When dealing comprehensively with any specific tribunal, it is key to determine whether the tribunal has made any s.25.1 rules, and if so to obtain and review them - although any rule made by a tribunal under s.25.1 of the SPPA may be waived as those rules themselves provide [SPPA s.4(2)].
2. Specific Rules Authorized
These s.25.1 rules may be of "general or particular application" [SPPA s.25.1(2)], allowing the tribunal to make different sets of rules for different categories of case. This suggestion is reinforced by SPPA s.4.7, which provides that a tribunal making its own rules under s.25.1 may establish different procedural guidelines for different categories of hearings that come before it, or for hearings that arise in differing circumstances.
This means that a tribunal doesn't have to have one s.25.1 rule regarding any specific procedure (eg. alternative dispute resolution, costs, disclosure orders etc), but may make different rules regarding different classes of case before it - as long as they each comply with these SPPA 'meta-rules'.
3. Time Frames Must be Established
Interestingly, all tribunals "shall establish guidelines setting out the usual time frame for completing proceedings that come before the tribunal and for completing the procedural steps within those proceedings" [SPPA s.16.2]. This is a not a s.25.1 authority, but it is mandatory - meaning that the tribunal must implement such guidelines.
Chronic delay is an issue that has periodically plagued tribunals in Ontario, either institutionally, or by the lethargy or illness of individual members. Such situations are difficult for parties and advocates to address when they occur due to the very real possibility of offending, and thus biasing, the adjudicator upon whom one relies for a ruling. It is therefore unfortunate that this provision only requires that tribunals create 'guidelines', which by their nature are suggestive only. If there was a requirement that actual s.25.1-type timeline rules be created then lateness could have some enforceable consequences.
The Supreme Court of Canada has recently ruled on administrative delay (unsatisfactorily in my view): Administrative - Delay - Abrametz. Later (post-Abrametz) cases are considered here: Administrative - Delay - Post-Abrametz.
4. Tribunal Rules Publically-Available
Section 25.1-made rules shall be made available to the public in both French and English [SPPA s.25.1(4)]. Indeed, any "rules or guidelines established under this or any other Act" shall be made available for examination by the public [SPPA s.27]. Copies of such rules are generally publically available in print form on request or posted on tribunal websites.