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Statutory Powers Procedure Act (Ontario)(SPPA)
Legal Guide
Chapter 9 - General SPPA Rules: Appeals and Judicial Reviews- Overview
- Appeal Procedures
(a) Overview
(b) Timeline for Commencing an Appeal
- Stays Pending Appeal
(a) Overview
(b) Stay Procedures
(c) Stay Pending Further Administrative-Level Reviews or Reconsiderations
- Judicial Review
(a) Overview
(b) Prematurity
(c) Procedures
(d) Grounds for Judicial Review
(e) Stay Pending Judicial Review
(f) Timelines for Commencing a Judicial Review
- Standard of Review
(a) Overview
(b) Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019)
1. Overview
The Statutory Powers Procedures Act (SPPA) does not set out a general rule providing for court appeals from tribunal decisions. Such provisions are usually located in the parent statute of the tribunal concerned, and - where they exist - typically (but not always) provide for a statutory appeal to the Ontario Divisional Court, a branch of the Ontario Superior Court. Where no such statutory appeal right is established, then the parties' court recourse lies in judicial review.
People unfamiliar with legal appeals tend to think that the right of appeal is an automatic oppourtunity to re-present their case completely. This is rarely the case. Appeals are usually limited to legal and jurisdictional issues, with fact-findings - unless they are extremely ill-founded - being accepted as they have been made by the tribunal and only on the basis of evidence already adduced at the tribunal level (this is the general rule against 'fresh evidence'). As well, legal arguments are also generally restricted to those already advanced before the tribunal (I call this 'fresh law').
Only lawyers or parties themselves (not non-lawyer representatives such as paralegals) are allowed to act for parties in statutory appeals to the Divisional Court or in judicial reviews: Gillespie v Gotlibowicz (Ont Div Ct, 1996).
2. Appeal Procedures
(a) Overview
As noted above, the right of a party to appeal the decision or order of an administrative tribunal (if such an appeal right exists, it doesn't always), is typically set out in the parent statute of the tribunal which made the order being appealed from. Detailed appeal procedures are then set out, for the most part, in Rule 61 of the Rules of Civil Procedure (RCP or Rules).
Detailed discussion of these procedures is beyond the scope of this present Legal Guide. However there is a large Isthatlegal Civil Appeals topic.
(b) Timeline for Commencing an Appeal
Where, as is often the case for administrative tribunal decisions, the timeline for commencing an appeal is governed under RCP R61.04, it is 30 days. However readers should be very careful to check whether the timeline is established by statute, in which case the statutory timeline overrides R61.04.
But where the timeline is established under R61.04, it may be extended by the court under it's general authority to "extend or abridge" time in proper circumstances [RCP R3.02]. However, this R3.02 authority only allows for extension of time limits in the Rules of Civil Procedure, it does not allow the extension of a timeline that has been created by statute. If the time limit in your appeal is governed by statute - and there is no statutory time extension right - then a late appeal may be 'dead in the water'.
3. Stays Pending Appeal
(a) Overview
Once an unfavourable final order or decision is made by a tribunal, and the aggrieved party starts to consider challenging it by way of an appeal, the question can arise as to whether the challenged decision is enforceable while the appeal is being resolved. That is, is the tribunal order effective or not in the interim? For example, if the tribunal orders a party to pay money - can the other side start collection activity before the appeal is resolved? And what if the order requires specific behaviour or actions from a party - what then?
The SPPA provides generally that the timely filing of a statutory appeal operates as a "stay" (ie. suspension) of a tribunal order until such time as the appeal is finally resolved [SPPA s.25(1)]. In this form, where the stay is 'as-of-right', it is commonly referred to as an "automatic stay".
However, the SPPA stay rule can be excepted where "another Act or a regulation that applies to the proceeding expressly provides to the contrary" [SPPA s.25(1)(a)]. Typically any statutory exceptions to the general SPPA automatic rule of 'stay on appeal' will be located in the tribunal's parent statute.
As well - an SPPA-s.25(1) automatic stay will be avoided where a "tribunal or the court or other appellate body orders otherwise" [SPPA s.25(1)(b)] - giving both the body appealed from, and the body appealed to, discretion to override the SPPA rule (typically the discretion lies with the Tribunal until the case is first filed with the appeal court, then it shifts to that court).
(b) Stay Procedures
Where no automatic stay on appeal is established by law, parties can usually make a motion before the appeal court for a discretionary stay. The principles governing the granting of stays are largely similar to those governing the granting of interim injunctions (merits of the case, irreparable harm, balance of convenience), but are otherwise beyond the scope of this present Legal Guide (but see Stays Pending Appeal).
Court rules governing stays are located at Rule 63 of the:
Rules of Civil Procedure, R63
(c) Stay Pending Further Administrative-Level Reviews or Reconsiderations
A practical complication that can arise is where the tribunal rules allow for an administrative-level review or reconsideration process either as an option to a court appeal, or even as a precondition of it. In this case the stay issue can re-arise while those supplementary proceedings are being conducted.
One example of where this can be a problem is before the Social Benefits Tribunal (SBT), which adjudicates Ontario Works (welfare) and ODSP appeals. After decisions are issued by the SBT, a party can request to have them 'reconsidered' (aka 'reviewed'), but the issue of a stay while this process proceeds is not anticipated for in the statutes that govern the SBT. Depending on the nature of the order, this may or may not be a practical problem.
4. Judicial Review
(a) Overview
Occasionally the situation arises where there is no statutory appeal from a tribunal order or decision. In that case judicial review may be available. Judicial review (JR) is widely-used to challenge many forms of government action or decision, even if it is not quasi-judicial (ie. from a tribunal) in nature.
(b) Prematurity
Before commencing judicial review proceedings however parties should first carefully review the parent statute and regulations that they are dealing with, and the policies of the specific tribunal they are dealing with, for any available administrative-level review or reconsideration powers [made under SPPA s.25.1 authority; see Ch.7, s.5: "Variation of Orders", and Ch.17: "Review of Orders"].
Those reconsideration remedies - if there are any - should almost always be attempted before judicial review is commenced. Failure to do so will likely result in the judicial review application being dismissed on grounds of 'prematurity' [see Prematurity].
(c) Procedures
If those other administrative-level processes are unavailable, or tried but are unsuccessful, the parties may then bring an "Application for Judicial Review" under the Judicial Review Procedures Act (JRPA), normally to the Divisional Court.
Court procedures for judicial review applications are found at Rule 68 of the:
Rules of Civil Procedure, R68
In all judicial review cases it is essential to have a full familiarity with any specific statutory provisions regarding judicial review located in the parent statute, and in the Judicial Review Procedures Act ("JRPA").
Full procedures for judicial review are complex and beyond the scope of this present Legal Guide. However, there is large JR topic link here: Isthatlegal.ca Judicial Review.
(d) Grounds for Judicial Review
Grounds for a judicial reviews are typically much more limited than those provided for in statutory appeals. Successful judicial reviews tend to be grounded on fundamental errors such as jurisdiction, legal error, or breach of the principles of natural justice (procedural fairness) - any of which must be material to the result (ie. the error must have decisively-influenced the resulting order or decision against the party seeking the judicial review). Fact-findings are only rarely reversed on judicial review except where plain errors of law contributed to a wrongful fact-finding, or there was blatant disregard for key evidence. These issues are discussed more fully in s.5 below ("Standard of Review").
(e) Stay Pending Judicial Review
Further, there is no automatic stay on the filing of an Application for Judicial Review [SPPA s.25(2)]. A party seeking a stay of the order, decision or action to be reviewed would have to make a motion to the court under JRPA s.4.
(f) Timelines for Commencing a Judicial Review
As of 08 July 2020, the Judicial Review Procedures Act was amended to add a 30-day limitation period, extendable in some circumstances. This replaces the prior (and more lenient) laches doctrine, see this link:
Judicial Review - Limitation
5. Standard of Review
(a) Overview
Anyone conducting either a court appeal or a judicial review has to be familiar with the dual concepts of 'standard of review' (SOR), and the closely-related concept of 'deference'. Deference is judicial policy applied by higher courts whereby - to varying extents depending on the nature of the issue being considered (most JR cases contain multiple issues, not all of the same nature) - they will either decline to second-guess the tribunal below or - more typically - not second-guess 'too hard'.
The default 'SOR' for judicial reviews is that of 'reasonableness', which has an entire body of law behind it: Judicial Review - Standard of Review. There are exceptions to 'reasonableness' where a more lenient 'correctness' standard of review can apply (see that link).
Generally, you will hear 'deference' being discussed in terms of the three standards of review of: 'correctness', 'reasonableness' and 'palpable and overriding error'. 'Correctness' means that, with respect to the issue being considered, that the reviewing court can freely-substitute it's own view of what is right over that of the tribunal or court below. 'Reasonableness' means that the reviewing court will respect (and thus preserve) the finding of the tribunal below unless it found the procedure that reached it (or the result to be so astray as) to be unreasonable.
Obviously, this latter standard of reasonableness is quite hard to define and predict in any given circumstance. The last standard - 'palpable and overriding' error - is one that generally accords to lower body great respect for it's fact-finding position, especially credibility findings.
For many years the higher courts have espoused varying forms and varieties of these 'standards of review', and in late 2019 the Supreme Court of Canada has attempted to (again) pronounce authoritatively on them, as is next explained.
(b) Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019)
The 2019 Vavilov case is the Supreme Court of Canada's most recent definitive statement on the standard of review that will be applied in court appeals and judicial reviews. A fuller Isthatlegal.ca summary of it is located here: Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019).
Generally, decisions requiring some 'judgment' from the decision-maker, such as the making of fact-findings and findings of mixed fact and law (such as where found facts are applied to a legal test and a result generated), will be accorded high levels of 'deference' or lenience by a reviewing court - and thus will be examined on a high-threshold 'palpable and overriding error' standard.
In Vavilov the Supreme Court drew a distinction based of a (re-invigorated) respect for legislative intent. Thus, for issues of law in judicial review applications they apply a 'reasonableness' standard, while for statutory appeals they apply a 'correctness' standard.
The idea is that when the legislature sees fit to provide for a formal appeal structure that 'second-guessing' should be respected, ie. appeals are a legislative choice to second-guess and that should be fully respected. But with a judicial review - which lacks the legislative 'choice' to appeal (ie. second-guess) - a lower 'reasonableness' standard will apply, even for issues of law.
With either appeals or judicial review, issues of jurisdiction will be subject to a correctness standard, and issues of procedural fairness are said to not attract any standard of review at all (which effectively means a correctness standard as well).
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