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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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

Chapter 14 - Tribunal Rule-Making Authority: Document Disclosure

  1. Overview
  2. SPPA Disclosure Authority
  3. Comment on Jurisdiction to Make Rules for General Disclosure

1. Overview

It is almost universal practice in the courts and modern administrative tribunals to make rules requiring broad pre-hearing disclosure of documentary evidence between the parties. 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]:
  • 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.
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 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

Typically, document disclosure in Tribunals is not the subject of a particular order within a proceeding but is required under the tribunal's general standing disclosure rules. As such, any Tribunal basing it's standing 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. Extending it to a general disclosure rule 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)].


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