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Administrative Law (Ontario)(SPPA)
(01 January 2015)

Chapter 9 - General SPPA Rules: Appeals and Judicial Reviews


  1. Overview
  2. Appeal Procedures
    (a) Overview
    (b) Timeline for Commencing an Appeal
  3. Stays Pending Appeal
    (a) Overview
    (b) Stay Procedures
    (c) Stay Pending Further Administrative-Level Reviews or Reconsiderations
  4. 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
  5. Standard of Review
    (a) Overview
    (b) Dunsmuir v New Brunswick (SCC, 2008)
---------------------------------------
Caution:
At the point of considering an appeal or judicial review, unrepresented parties should immediately consider retaining a lawyer if they can. Appeal filing deadlines need to be adhered to [30 days is typical for an appeal (shorter if leave to appeal is required), and six months is a standard for judicial reviews] promptly and procedures are very specialized and cumbersome. In past, legal aid certificates (for private lawyers) were generally available for administrative tribunal appeals, but it appears likely that with recent (2011) cut-backs that all people unable to afford a lawyer will have to go through the legal clinic system to get legal representation for such cases.

As well, before commencing a court appeal or judicial review, parties should also carefully review the general SPPA rules discussed in Ch.7, s.5 ["Orders: Variation of Orders"] and any review or reconsideration powers made under the tribunal's parent statute or under SPPA s.25.1 authority [see Ch.17: "Review of Orders"]. With judicial reviews (though not appeals) the courts apply a legal doctrine of "prematurity. Prematurity doctrine generally (but not always: Ellis-Don v Ontario [2001] 1 SCR 221) requires that all available review or reconsideration processes be exhausted before they will consider the merits of a judicial review case. Cases can be dismissed if they do not do this.

Another aspect of the doctrine of "prematurity", mentioned above, is that courts will not generally consider an appeal or judicial review until a decision is "final" (ie. purports on its face to finally dispose of a party's right in the proceeding) as opposed to interlocutory (typically procedural orders). For example, a party's chances of appealing or judicially reviewing something like a refusal to grant an adjournment are next to nil. Normally the courts want the appellant to complete their hearing to the point of getting a final order (and thus a full documentary and evidence record) and then, if that was against them, to appeal on whatever grounds they had - including the adjournment refusal.

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 - were 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.

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 28 OR (3d) 402 (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 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 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, the Divisional Court has posted a useful Appeal Information Package on it's website, explaining most of these procedures to the public:

Guide to Appeals in the Divisional Court

(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 RCP 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 does not allow the extension of a timeline that has been created by statute. If there is no statutory extension right, then the appeal may be 'dead in the water', and the only court recourse the party may have lies in judicial review.
Case Note:
In Jones v. Matthews [2012 ONSC 6447 (CanLII)], the court applied the following generally-accepted criteria in considering whether to exercise it's discretion to extend the time for commencing an appeal of a decision of the Landlord and Tenant Board under the RTA:
[10] Assuming the court has the ability to extend time, Ms. Sirvinskaite acknowledges various factors must be considered by the Court:

(a) Has the appellant maintained a firm intention to appeal within the statutory period?

(b) Has the appellant provided a reasonable explanation for the delay?

(c) Is there prejudice to the respondent in granting the extension?

(d) Is there so little merit in the proposed appeal that the court should reasonably deny the appellant the opportunity to appeal?
In my opinion, the court here had no legal jurisdiction to extend time in this case, since the 30-day limitation period was statutory rather than made under the Rules of Civil Procedure (which allow such extensions under R3.02) and the RTA has no extension provision. However the court avoided that issue since it found no grounds for extending on this standard test. This might be confusing for readers, but courts sometimes focus on just one issue of several in order to decide a case expeditiously, rendering the resolution of remaining issues pointless. Had the jurisdictional issue (re the extension) been considered here in Jones I think it would have gone against the appellants and their only proper recourse would have been to commence a judicial review.

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 or review is resolved? What if the order requires specific behaviour or actions from a party?

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)]. However, that 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 rule of 'stay on appeal' will be located in the tribunal's parent statute.

As well, no SPPA-s.25(1) stay will operate 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).
Case Note:
In the Divisional Court residential tenancy case of D’Amico v Hitti [2012 ONSC 4467 (CanLII)] the Matlow J faced a non-payment of rent appeal by a tenant that had not paid rent since moving into the premises, and who failed to appear at the appeal hearing. Citing this as an example of several similar cases that had come before him recently, the judge took it on himself to criticize the automatic stay provisions that applied to such cases by virtue of SPPA s.25(1), and suggested that imposing a leave to appeal requirement in such appeals might be appropriate. The case attracted media attention on Matlow J's policy change suggestion: Case highlights flaws in landlord, tenant rules: Toronto Star, 31 August 2012.

My view is that a leave requirement would be quite disproportionate and inefficient to address the problem the court identified here. Leave motions are as much paperwork as a full appeal, and often these days are treated by the appeal courts as de facto summary appeals - forcing the parties to unnecesssarily address the leave criteria as well as the merits of the case. The problem identified by the judge here is unique to non-payment of rent cases and could be addressed by a requirement that the tenant be required to deposit the Board-ordered arrears and ongoing rent with the court in order to maintain their right of appeal.

Very similar requirements are already in place at the Board level, where failure to make such 'catch-up' payments is fatal to the tenant's defence: see Ch.7: Non-Payment of Rent Terminations. In fact, if the Board at the early application stage of this case had simply required that the catch-up payment at that point be made by certified cheque or money order - rather than personal cheque - this situation would never have gotten anywhere near this far. It plainly had authority to demand verification of actual payment by virtue of the RTA s.74(2) requirement that it be 'satisfied' that payment had been made. With respect, I view the imposition of a leave to appeal requirement as excessive and unnecessary to the situations being targetted.
(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.

Court rules governing stays are located at Rule 63 of the:

Rules of Civil Procedure
Case Note:
The Divisional Court in Ramlochan v D’Souza, 2012 ONSC 4251 (CanLII) considered just such an application to lift a statutory stay where a landlord faced an appeal by tenants who had been ordered by the L&T Board to leave the premises, and where the issue was complicated by the assertion by the tenants of an Agreement of Purchase and Sale. The court, in applying the interim injunction principle of 'balance of convenience', noted that the burden of convincing the court to lift a statutory stay lay on the party seeking it, and that - in the circumstances of this case - there was no compelling reason to change the status quo created by the automatic stay.
(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', 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. In fact, judicial review is widely-used to challenge practically any form of government action or decision, even if it is not quasi-judicial 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"].

For the reasons explained in the 'Caution' at the beginning of this chapter, those remedies - if there are any - should almost always be attempted before judicial review is commenced. Failure to do so may result in the judicial review application being dismissed on grounds of 'prematurity'.
Case Note:
The Divisional Court case of Martinez v. Toronto Police Services Board(CanLII) [2012 ONSC 2893], emanated from police discipline hearings in relation to their conduct during the G20 demonstrations in June 2010. The officers moved to judicially review the decision of the Toronto Police Services Board to exercise it's statutory discretion under s.83(17) of the Police Services Act to serve notices of hearing more than six months after the day on which the Office of the Independent Police Review Director (“OIPRD”) decided to retain a public complaint for investigation.

No evidence was adduced as to prejudice caused by the delay, but in any event the application was dismissed as premature in light of the parties' as-yet unused abuse of process s.23(1) SPPA remedy, which could be applied at the administrative proceedings level to relieve against prejudice caused by the delay.
(c) Procedures

If those other administative-level processes are unavailable, or tried but are unsuccessful, the parties can then bring an "Application for Judicial Review" under the Judicial Review Procedures Act (JRPA) to the Ontario Divisional Court.

Court procedures for judicial review applications are found at Rule 68 of the:

Rules of Civil Procedure

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.

(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

There is no set statutory limitation period on how long a party has to commence a judicial review, but courts may dismiss such an application if they view it's commencement as being unduly tardy (under a doctrine called "laches"). As a general practice the Divisional Court views six months as being late, beyond which the applicant must justify the delay.


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', 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 appeal 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'.

In legal terms you will hear deference being discussed in terms of the two standards of review of 'correctness' (on the one hand) and then 'reasonableness' (on the other hand). '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 below. 'Reasonableness' means that the reviewing court will respect (and thus preserve) the finding of the tribunal below unless it found 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.

For many years the higher courts have espoused varying forms and varieties of these 'standards of review', but recently the Supreme Court of Canada has attempted to pronounce authoritatively on them, as is next explained.

(b) Dunsmuir v New Brunswick (SCC, 2008)

The 2008 Dunsmuir v New Brunswick 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.

Generally, decisions requiring some discretion from the decision-maker, the making of fact-findings, findings of mixed fact and law (such as where found facts are applied to a legal test and a result dictated), and those lying at the core of a tribunal's specialized expertise will be accorded high levels of 'deference' or lenience by a reviewing court (and thus will be examined on a 'reasonableness' standard). As the court put it:
... reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
On the other hand, questions of pure law (such as statutory interpretation) and jurisdiction will be reviewed on a more stringent standard of 'correctness'.

Lastly, issues of fairness or natural justice (procedural fairness) are by their nature not subject to deference, and are generally assessed as to whether the conduct challenged was simply 'right or wrong' (which in practice amounts to a 'correctness' standard).
Case Note:
In First Ontario Realty Corp Ltd v Deng (Ont CA, 2011), which was a Residential Tenancies Act (RTA) case, the Court of Appeal considered an appeal from a Divisional Court judgment which reversed an earlier Landlord and Tenant Board order granting a tenant request for a rent reduction based on a reduction in "common recreational facilities" by the landlord. The Divisional Court (below) decided, applying a standard of correctness, that an external area of land around the buildings only fit the 'common recreational facilities' definition if it was specifically landscaped for recreational purposes.

However, applying the case of Dunsmuir v New Brunswick (SCC, 2008), the Court of Appeal held that the proper manner of proceeding in such appeal cases was to consider each issue separately as to it's applicable standard of review - and not to apply one global standard to them all [appeals under RTA s.210(1) are on a question of law alone]. Dunsmuir holds that pure questions of law and jurisdiction should be subjected to a standard of correctness, while issues of fact-finding and mixed facts and law - particularly where they are close to the specialized expertise of the tribunal, should be subjected to the more deferential standard of 'reasonableness'.

Applying those principles to this case the court held that the Divisional Court erred in applying a standard of correctness to the determination of whether the land in question met the definition of "common recreational facilites". As a question of mixed fact and law close to the expertise of the tribunal this issue should have been considered on the standard of reasonableness. On this standard the Court of Appeal found that the Board's conclusion respecting the status of the subject land was reasonable.

However, the court did find that the Board's approach to the degree of loss of services and the resultant rent reduction amount was not reasonable, and on that basis upheld the result at the Divisional Court against the tenants.

The case illustrates well how review of tribunal decisions is not, as has commonly been the practice in past, to be subject to an undifferentiated standard across the entire case (ie. either 'correctness' or 'reasonableness' across the board). Instead, different standards of review will apply to each of the separate issues raised on appeal or judicial review:
[18] Although the Divisional Court relied upon the fact that previous courts had consistently applied the standard of correctness to decisions of the Board on questions of law, decisions prior to Dunsmuir may be of limited assistance. .....

[19] It is important to identify the category of question under review. A tribunal may attract different standards of review, depending on the issue involved.

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