Administrative Law (Ontario) (SPPA)
(01 March 2019)
Chapter 2 - When the SPPA Applies
- Duty to Hold Hearing
- Statutory Power of Decision
- Exceptions to SPPA Application
Whether 'your' tribunal (ie. the one you are involved with at the present time) is governed by the Statutory Powers Procedures Act (SPPA) is important. I considered trying to compile a list of common administrative tribunals that are governed by the SPPA but unfortunately the answer to the question: "Is that tribunal governed by the SPPA?" is almost always "Yes, no and sometimes". For example, the Residential Tenancies Act generally adopts the SPPA and has passed extensive s.25.1 SPPA Rules, but also has several exceptions to SPPA application - none of which are simple to explain.
When I post a detailed Legal Guide on a specific tribunal regime I will explain and integrate the relationship between the SPPA and the parent legislation in that topic area, but otherwise the issue doesn't lend itself to general explanation. If I haven't done a Legal Guide in your area of concern, you will have to conduct your own assessment in light of the SPPA and the particular parent legislation involved to determine whether, and to what extent, the SPPA applies to your situation.
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:
s.3(1)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"].
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.
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.
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:
 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?
 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.] 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.] 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),  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]......
 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.
 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.
 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.
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:
s.1(1)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).
"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;
In Endicott v Independent Police Review Director 2013 [ONSC 2046 (CanLII)] the Divisional Court, in considering whether the office of the Independent Police Review Director had to provide the court with a record of it's proceedings by virtue of s.10 of the Judicial Review Procedures Act (which required just that and it was so ordered), engaged in an extensive and informative discussion of what is and isn't a "statutory power of decision" under SPPA s.1(1). Extensive case law is cited and analysed.
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 or the Ontario Labour Relations Act, 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".