Statutory Powers Procedure Act (Ontario)(SPPA)
Chapter 14 - Tribunal Rule-Making Authority: Document Disclosure
- SPPA Disclosure Authority
- Comment on Jurisdiction to Make Rules for General Disclosure
It is almost universal practice in the courts to make rules (ie. rules requiring disclosure generally in all procedures, without a specific order) requiring broad pre-hearing disclosure of documentary evidence between the parties. However the SPPA [s.5.4] only expressly addresses the making of disclosure orders within administrative proceedings (ie. ordering disclosure within the current proceeding) [see s.3 below for commentary].
This chapter discusses the jurisdictional basis for such rules.
2. SPPA Disclosure Authority
The SPPA provides that if a Tribunal makes s.25.1 rules addressing document disclosure then it may, at any stage prior to the completion of the hearing, "make orders" for the following [s.5.4]:
Any s.5.4 tribunal-made rules must be consistent with the above authorities [SPPA s.25.1(3)], subject only to waiver on all-party consent if such rules so allow [SPPA s.4(2)].
- the exchange of documents;
- the oral or written examination of a party; (this provision presumably provides for out-of-hearing examinations, with the taking of written transcripts - for example where a witness is not in practically available to testify in person);
- the exchange of witness statements and reports of expert witnesses;
- the provision of particulars;
'Particulars' is a concept drawn from civil litigation. A "demand for particulars" is a request by another party for a more detailed written specification of events and facts alleged than is contained in the existing pleadings or documentation.
- any other form of disclosure.
The tribunal's disclosure authority does not extend to ordering the disclosure of privileged information [SPPA s.5.4(2)] ["privilege" is discussed in Ch.6, s.2(j): "Evidence: Civil Evidence Background: Privilege"].
3. Comment on Jurisdiction to Make Rules for General Disclosure
While the SPPA only addresses disclosure 'orders', the clear movement of administrative law is the require disclosure in all proceedings - ie. to make disclosure rules. However, any SPPA-governed tribunal basing disclosure rules solely on SPPA s.5.4 - which only authorizes rules that then authorize a presiding tribunal to make disclosure orders - is likely to be on dubious jurisdictional grounds.
Recently [June 2023] the LTB has made a new R19.7 and a complex 'Practice Direction on Evidence' which sets out just such disclosure rules, which - as far as I can see - are grounded on such dubious jurisdiction. That said, the LTB has long-needed a firm disclosure rule so we shouldn't object - it's a matter of procedural fairness: Fairness - Disclosure.
Extending this statutory authority to general disclosure rules would have to rely either on the more general s.25.1 authority (which is questionable given the specificity of s.5.4), or on express provisions in the tribunal's governing statute [the tribunal's authority to order disclosure is subject to any other applicable statute or regulation: SPPA s.5.4(1.1)].