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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Statutory Powers Procedure Act (Ontario)(SPPA)
Legal Guide

Chapter 2 - When the SPPA Applies
(15 July 2020)

  1. Overview
  2. Duty to Hold Hearing
  3. Statutory Power of Decision
  4. Exceptions to SPPA Application

1. Overview

As noted in Ch.1, the Statutory Powers Procedures Act (SPPA) is a generic procedural statute for most administrative tribunals in Ontario. It can be viewed as a sort of 'minimum standard' for procedural compliance by administrative Tribunals.

However this does not mean that the SPPA applies to all tribunal proceedings. Rather, the SPPA only applies to impose procedural duties on Tribunals where the law (by either statute or common law) imposes a duty on the tribunal to hold a "hearing" into the issue of concern.

Further, due to the operation of exceptions (commonly located in the parent statutes), the application of the SPPA may be fully or partially excepted in any of numerous ways. For instance, it is common for a parent statute to suspend the operation of the SPPA for minor procedures peripheral to its primary hearing function - even if they require a form of ancillary hearing.

2. Duty to Hold Hearing

The SPPA applies where:
Subject to subsection (2) [SS: a list of express exceptions to the SPPA], 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.
Note that under s.3(1) a hearing duty may be imposed on a tribunal by "Act or otherwise by law". This means that examining the parent statute alone is not always conclusive as to whether a hearing is required, and thus where the SPPA applies. Sometimes the courts will impose a common law requirement to hold a hearing where they think it is necessary to serve the interests of 'natural justice' [for more on this see Ch.1, s.5: "Tribunals and their Rules: Natural Justice and Fairness: The Baker Test"].

Historically judges have tended to use this common law power whenever property or licence rights were seriously effected by government actions, but today judicial "natural justice" or "fairness" intervention can be used to argue for the imposition of a hearing requirement where situations of employment, housing and other important rights are at stake.

3. Statutory Power of Decision

Note further that while hearings may be required either under a statute or under common law, the SPPA only applies where the decision involved is a statutory one:
"statutory power of decision" means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not;

"licence" includes any permit, certificate, approval, registration or similar form of permission required by law;
Necessarily then, a "statutory power of decision" is one assigned to the Ontario government or - more often - some delegate or agent of the government (of which there are many, such as ministries and a wide range of functionaries).

4. Exceptions to SPPA Application

Obviously, the SPPA does not apply where the law does not impose a hearing duty, or where there is no "statutory power of decision" being exercised [such as (increasingly rare) exercises of Crown prerogative authority, a subject beyond the scope of this program].

However the SPPA also respects several substantial pre-existing procedural regimes. Section 3(2) of the SPPA exempts from it's application processes of: the legislative assembly (ie. Ontario parliament), the courts of Ontario, arbitration under the Arbitrations Act 1991 or the Ontario Labour Relations Act 1995, coroner's inquests, commissions under the Public Inquiries Act 2009 and government investigations conducted in order to make advisory reports.

Further, the SPPA does not apply to a tribunal that has independent (ie. non-SPPA) authority to "make regulations, rules or by-laws in so far as its power to make regulations, rules and by-laws is concerned".

For more on the conflict between rules and rule-making authority, see the Ch.1, s.4 discussion "Tribunals and Their Rules: Conflict Between Rules".


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