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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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SPPA - Application of the Act [SPPA s.3(1)]

. Perron v. Guelph General Hospital

In the case of Perron v. Guelph General Hospital (Ont Div Ct, 2014) the court offered this insight into the common law requirement of a hearing which triggers application of the SPPA:
[13] Section 3(1) of the SPPA sets out the proceedings to which the SPPA applies. It provides as follows:
Subject to subsection (2) [which has no relevance to this case], this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.
[14] There is no dispute that the Board is a “tribunal” and that the Board exercised a statutory power of decision conferred by s. 36(c) of the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”) that authorized it to “revoke or suspend the appointment of or refuse to reappoint a member of the medical staff.” There is also no dispute that the PHA does not require the Board to hold a hearing. The only question in dispute is whether the Board was “otherwise by law” required to hold a hearing. If it was, the proceeding is governed by the SPPA and the provisions of s. 25(1) apply, which serve to automatically stay the Board’s decision pending appeal.

Was the Board “otherwise by law” required to hold a hearing?

[15] In the leading text, Donald J.M. Brown & John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Carswell, 2013) vol. 2, the authors discuss the “otherwise by law” criterion and state as follows, at 8-19 to 8-20:
A duty to hold a hearing may be required “otherwise by law” in four ways. It may be required by virtue of a duty to hear contained in a statute other than the agency's enabling statute. Alternatively, it may arise pursuant to delegated legislation ... In addition, it may be implied by the common law, or it may arise under the Charter. [Footnotes omitted.]
[16] In discussing the common law duty of fairness (one of the ways the duty may arise) the authors write, at 8-21 to 8-22:
However, a tribunal may attract a duty to conduct a “hearing” by creating a legitimate expectation to this effect. For example, where a tribunal publishes a statement of the procedure that it will follow before making a decision, and the published procedure has the essential indicia of a trial-type hearing, then even if the rules are not made under a delegation of statutory authority, the tribunal may nonetheless be required "otherwise by law" to hold a “hearing.” [Footnotes omitted.]
[17] The doctrine of legitimate expectations is a well-established feature of Canadian administrative law. Its key elements are set out in the following passage, taken from the majority ruling of Justice L’Heureux-Dubé, in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 26:
[T]he legitimate expectations of the person challenging the decision may also determine what the procedures of the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness … Nevertheless, the doctrine of legitimate expectation cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. [Emphasis added, Footnotes omitted].

[21] In our view, the combined effect of the By-Law and the Summary Process Agreement is that the Applicant had a legitimate expectation that he was entitled to a hearing within the meaning of s. 3(1) of the SPPA. He was entitled to know the case against him in advance; he was entitled to present evidence and that evidence was to be in the form of sworn evidence; he was entitled to cross-examine and re-examine witnesses; and he was entitled to make opening and closing statements. The fact that his rights were circumscribed does not change the “trial-like” nature of the hearing he legitimately expected and to which he was, therefore, entitled.


[23] These extracts make it clear that all of the parties to the hearing, including the Hospital, proceeded on the basis that they were engaged in a hearing under the SPPA. Before us, counsel for the Hospital admitted that this was the case. However, he submitted that he did not contemplate that by engaging in a hearing under the SPPA the automatic stay pending appeal provisions of s. 25(1) of the SPPA would apply. According to the Hospital, the provisions of s. 25(1) of the SPPA were never discussed either before or during the hearing and, thus, the Applicant could not have had a legitimate expectation that those provisions would apply if he sought to appeal the Board’s decision.

[24] This submission of the Hospital ignores the wording of ss. 25(1) and 3(1) of the SPPA. The combined effect of these provisions in the Applicant’s case is that if the Board was required by law to hold a hearing under the SPPA, the Applicant was entitled to have the decision of the Board stayed pending his appeal. In this case, the doctrine of legitimate expectations gave rise to a legal requirement to hold a hearing under the SPPA. As a result, there was no need to further specify that all of the provisions of the SPPA (including s. 25(1)) would then apply.
. Sui v. Ontario

In Sui v. Ontario (Div Court, 2022) the Divisional Court clarifies the nature of a 'statutory power' as distinct from a 'statutory power of decision':
[2] Mr Sui did not address the jurisdiction of the OCJ, or a court hearing an appeal from the OCJ. Instead, he argued that the public service member exercised a "statutory power of decision" in refusing to provide a certificate for the recording furnished for preparation of a transcript by a certified transcriptionist.

[3] Mr Sui is in error in this argument. Statutory authority is not the same thing as a statutory power of decision. All manner of tasks, from the important to the mundane, are performed by the public service pursuant to direct or indirect grants of statutory authority; only a small subset of them rise to the level of being a "statutory power of decision." Providing a recording of a court proceeding - with or without a certificate - is a matter of day-to-day public administration and is not exercise of a statutory power of decision.


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