Administrative Law (Ontario)(SPPA)
(15 July 2020)
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
- Abuse of Process
This chapter deals with the authority (and sometimes duty) that tribunals governed under the Statutory Powers Procedures Act (SPPA) have under SPPA s.25.1 and other 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. As such it may be of more interest to lawyers and administrators than it is to self-represented parties.
Whether a particular tribunal has, or has not, exercised their rule-making authority in any given procedural area is always an issue to be determined early on by parties when dealing with it. Such a determination, and obtaining access to or copies of such rules (if made), is a prerequisite to any comprehensive dealing with the tribunal.
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 (see Ch.1 "Tribunals and Their Rules"), where these rule-making authorities were interpreted - and thus implemented - quite broadly by tribunals.
When dealing comprehensively with any specific tribunal, it is essential to determine whether the tribunal has made any s.25.1 rules, and if so to obtain and review them - though 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)].
In Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board (Ont Div Ct, 2013) the court quashed an application by a public interest organization to judicially review a rule made under s.25.1. The applicant argued that the rule, which allowed the tribunal to allow counsel or an advocate to testify in some circumstances, was procedurally unfair. The court quashed the application on the reasoning that each case in which the rule was applied should be assessed on it's individual circumstances and merits, as procedural unfairness could not be assumed to arise in all of them.
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.
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, and 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 rules be created then lateness could have some enforceable consequences.
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.
5. Abuse of Process
A tribunal may make orders and give directions as it considers proper to prevent "abuse of its processes" [SPPA s.23(1)]. While under a broad or literal reading this authority could extend to allow a presiding tribunal to make orders controlling the disruptive behaviour of a party or a witness, that interpretation would be redundant in the face of the express SPPA provision to that effect that applies to the control of oral and electronic hearings [SPPA s.9(2)] (this is discussed in Ch.4, s.7 "Control of Proceedings").
It seems that this abuse of process authority is more targetted at situations where the bringing of the proceeding as such falls into a broad category that courts have labelled 'abuse of process'. Such situations can include, but are not limited to:
- Competing Proceedings
Sometimes - particularly where pressured by pending limitation period expirations, and where jurisdiction between two bodies (ie. tribunals and/or courts) is unclear - parties bring dual proceedings respecting the same or similar subject-matters. This was a common problem under the pre-2008 Human Rights Code regime, where situations quite naturally had dual elements of both human rights and - variously - employment law, WSIB law, tenancy law, etc. These situations can get quite complex and, particularly where competing tribunals (or again, courts) have jurisdiction over the same or similar subject-matter but different remedial jurisdiction, have great potential for injustice.
The problem is greatly exacerbated by the fact that fair resolution of these situations calls for an overall jurisdiction over both competing proceedings, and yet the matter is only ever before one of them at any given time. However, particularly where jurisdiction turns on the nature of facts (which cannot be known before hearing) it seems much more appropriate for a tribunal to (at most) stay (suspend) the proceedings before it rather than the more irrevocable response of dismissing them.
Where parallel proceedings are brought before the same tribunal an appropriate response may be to merge or consolidate them under the general authority granted in SPPA s.25.0.1 to "make orders with respect to the procedures and practices that apply in any particular proceeding".
At least with respect to competing court proceedings, another aspect of this same problem exists in the doctrine, most vividly manifest in the Supreme Court of Canada case of Weber v Ontario Hydro (SCC, 1995), that parties are barred from bringing civil action where a 'purpose-built' (my expression) administrative tribunal exists that more specifically addresses the subject-matter of the case. This doctrine has been applied despite the inferiority of the remedial jurisdiction of the tribunal when compared with the court. In Weber a party's lawsuit for several torts that took place in a unionized labour context was dismissed in favour of the jurisdiction of a labour arbitrator.
What is neglected in the Weber doctrine is the 'ghetto-izing' of the rights of the parties who are forced into administrative proceedings which - when contrasted with the 'cadillac' plenary jurisdiction of the civil courts (where corporate and other 'moneyed' litigation predominates) - have limited remedial jurisdiction, shorter limitation periods and reduced natural justice rights. As today's Ontario administrative tribunals govern all of the areas of residential tenancies, workplace compensation for injury, employment, social assistance - to name only some, the net effect is to strip people of access to the constitutionally-mandated s.96 courts in all of those areas. This phenomenon is nothing less than the degradation and stratification of the justice rights of ordinary citizens in favour of the rights of rich persons and corporations - neither of whom are necessarily citizens, nor even Ontario-resident.
- Res Judicata
The doctrine of res judicata (already decided) is in essence the same as that of 'Competing Proceedings' (above), except that one proceeding has already been completed.
Strictly, the doctrine is a form of estoppel that provides that subject-matters already finally litigated between the same parties may not be re-litigated. It is a civil litigation doctrine originating from a time before the widespread prevalence of administrative tribunals and is too blunt a principle to apply to the many situations where there is no clear bright line between the subject-matter jurisdictions of different bodies - or where different bodies have plainly different jurisdictions over parties, remedies - and even different temporal jurisdictions (ie. limitation periods).
- Other Possible Grounds
A related doctrine is that of the 'frivolous and vexatious proceeding', which is typically applied against proceedings that are perceived as being brought solely to harass the respondent. Once again though this situation is expressly anticipated by the dismissal jurisdiction granted tribunals under SPPA 4.6(1)(a), discussed in Ch.20 "Summary Dismissal for Cause". In such cases, which are not always clear-cut, that authority - which does provide the impugned party with the right to notice of an intention to dismiss and to make submissions on the issue - should govern the situation.
The other grounds for summary dismissal for cause considered in Ch.20 are also similar in nature to abuse of process grounds, and readers interested further in these issues may want to review them.
An interesting - though only potential - expansion of the doctrine of abuse of process in the administrative law context is as a basis for pre-hearing documentary disclosure. This possibility, building on the case of R v O'Connor (SCC, 1995) is discussed in more detail in Ch.14, s.2(a): "O'Connor Disclosure Motions?".