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Statutory Powers Procedure Act (Ontario)(SPPA)
Legal Guide
Chapter 4 - General SPPA Rules: Hearings- Overview and Comment
- Types of Hearings
(a) Oral Hearings
(b) Written Hearings
(c) Electronic Hearings
(d) No Hearing on Consent
(e) Mixed Hearings
(f) Merger of Hearings
- Notice of Hearings
(a) General Rules
(b) For Oral Hearings
(c) For Written or Electronic Hearings
(d) Alternative Notice of Hearing
- Parties and Representation
(a) Parties
(b) Representation
- Default Proceedings
- Control of Proceedings
- Adjournments
- Openness of Proceedings
- Prohibitions on Photographing and Electronic Recording
1. Overview and Comment
An "oral hearing", held in the presence of the presiding tribunal member/s and all the parties, is the traditional administrative legal fact-finding process in the common law world - modelled on the courtroom "trial". For the most part, such hearings include the essential elements of a trial and at least the rudiments of courtroom evidence law. That's remained true until recently, first with a half-hearted (pre-COVID) embrace of telephone hearings and then with COVID's unwilling revolution of messy video electronics (read 'ZOOM') that many of you will be familiar with.
So while the oral hearing still remains the model for the dominant form of quasi-judicial administrative hearing, tribunal practice in Ontario has attempted - with mixed success - to create and integrate other forms of 'hearings' into its repetoire. These include the 'old' oral hearings, written (paper-only) hearings and "electronic" (typically telephone) hearings. In some cases (discussed below) where the parties agree even these limited forms may be dispensed with entirely.
Even before COVID, these policies were a problem. People have interacted 'in-person' since the species began and pretending that we can culturally shift - in such an intense and important activity as legal truth-telling - is a cruel facade. The farther we get away from traditional sit-down, in-person oral hearings the more the rights of parties are cheapened and fobbed off with second-rate, artificial procedures. People whose sole income stream may be at issue may find that their 'appeal' is disposed of by a three-way telephone call between faceless voices using legal terms that are completely foreign to them. People of limited literacy skills may find other rights removed from them after receiving pages and pages of similarly daunting e-legalese to which they are expected to respond in kind. These inadequacies and problems at least become obvious in a full oral hearing, and as such subject to the hope of remedy by the presiding adjudicator.
Further, while corporations litigate months-long trials at public expense trying to make big piles of money bigger, the dispensation of essential justice to actual citizens (employees, social assistance applicants, tenants, etc) by way of phone calls, ZOOM sessions, and letters is just plain offensive. There is no escape from the accusation that such procedures offer only second-class justice.
Adoption of these false measures of efficiency, very much like the prior use of phone screening intakes in human rights and social assistance law (both since thankfully since ended) has resulted in the constructive (ie. by effect) denial of access and full airing of grievances to thousands of Ontarians who have been either steered or forced into using these procedures in their attempt to vindicate their legal entitlements. What they get in place of real and time-tested common law legal process is an experience in anonymity and the clear sense that their essential rights are of only cursory importance to those that really run society.
We are now well-advanced into this two-tiered civil justice system in Ontario, both due to use of these alternative hearing procedures and to many other procedural 'efficiency' measures discussed elsewhere in this Isthatlegal.ca Administrative Law (SPPA)(Ontario) Legal Guide. While financial limitations are undeniable constraints on any administrative operation, in my view it is far better to openly admit an inability to meet the requirements of natural justice and thus open the issue to public debate, rather than to fob people off with these far inferior processes and pretend that nothing is wrong. As the realm of administrative law grows in both size and importance of matters addressed, Ontarians deserve no less.
Where significant social rights are at stake - as they so often are nowadays in administrative law - these parties do not simply return back into some void without larger social consequences. Many of them pinball back and forth through the network of last-resort social programs available for them (welfare, hospitals, jail), often - ironically - at a public expense far greater than the "cost-savings" that these programs lay claim to. Further, counting up this increased financial expense does not even begin to speak to the huge intangible loss to individuals and society in the form of cynicism and the disrepute engendered over the justice system and larger democratic institutions.
2. Types of Hearings
(a) Oral Hearing
An "oral hearing" is defined as one "at which the parties or their representatives attend before the tribunal in person" [SPPA s.1(1)]. So while a telephone or ZOOM hearing is in a sense 'oral' in that people are speaking, the term "oral hearing" is used to mean traditional in-person hearings.
The conduct of any particular oral hearing can vary greatly depending upon the tribunal involved, the nature of the evidence and the inclinations of the presiding member. However - generally - oral hearing procedure is essentially modelled on the traditional civil court trial.
For background, the following link is to sections of the Isthatlegal.ca Small Claims Court Legal Guide that deal with the "Presentation of Evidence" and "Liability and Remedy Submissions". While these passages speak of "damages awards" rather than favourable administrative declarations and orders, the general principles outlined there apply to most tribunal proceedings.
Small Claims Court (Ontario): Ch.14, s.3: Trial: Trial Sequence
(b) Written Hearings
A "written hearing" is defined as one held "by means of the exchange of documents, whether in written form or by electronic means" [SPPA s.1(1)].
The SPPA itself does not set out specific rules for the conduct of written hearings, rather it delegates such rule-making to the tribunals themselves by virtue of SPPA s.25.1 [see Ch.10: "Tribunal Rule-Making Authority: Overview" and Ch.11: "Tribunal Rule-Making Authority: Written and Electronic Hearings"].
(c) Electronic Hearings
An "electronic hearing" is defined as one held "by conference telephone or some other form of electronic technology allowing persons to hear one another". In practice these are either telephone or video hearings.
The SPPA itself does not set out specific rules for the conduct of electronic hearings, rather delegating such rule-making to the tribunals themselves under s.25.1 SPPA [see Ch.10: "Tribunal Rule-Making Authority: Overview" and Ch.11: "Tribunal Rule-Making Authority: Written and Electronic Hearings"].].
(d) No Hearing on Consent
Unless barred by another Act or regulation, as a general SPPA rule a hearing may be dispensed with entirely if the parties so consent [SPPA s.4.1].
(e) Mixed Hearings
Assuming that Tribunal rules are established under s.25.1 SPPA for the conduct of written or electronic hearings then a tribunal may "hold any combination of written, electronic and oral hearings" [SPPA s.5.2.1].
(f) Merger of Hearings
It is a general principle of adjudication that efficiency within and amongst separate proceedings should be achieved wherever fair and possible. One aspect of this principle is that a 'multiplicity of proceedings' involving the same facts or issues is to be avoided [Courts of Justice Act, s.138], and that parties should not be allowed to split their case unnecessarily into more than one proceeding.
Similarly, it is a general SPPA rule that where two or more proceedings involve the same or similar issues of fact, law or policy then the tribunal has discretion to [SPPA s.9.1(1)]:- merge the proceedings or any part of them, with the consent of the parties;
- hear the proceedings at the same time, with the consent of the parties;
- hear the proceedings one immediately after the other; or
- stay (suspend) one or more of the proceedings until after the determination of another one of them.
Consent of the parties as required above can be dispensed with if another Act or regulation otherwise gives the tribunal authority to merge the proceedings or any part of them, or to hear the proceedings at the same time [SPPA s.9.1(4)].
Where two proceedings are heard at the same time, evidence admitted in one of them may be used in the other, if the parties to the other proceeding so consent [SPPA s.9.1(5)].
The discretionary merger authority set out above does not apply to hearings under s.21 ["Consolidation of hearings"] of the Ontario Land Tribunal Act, 2021 [SPPA s.9.1(2)]. This provision governs a wide range of municipal, planning and environmental cases where hearings regarding numerous approvals or authorizations are required.
There is also a partial exception to this discretionary merger authority where another Act or regulation requires that the proceeding be heard in private or when the tribunal has ordered the hearing closed to the public for reasons of public security or unwarranted exposure of private financial or personal matters [see s.9 below: "Openness of Proceedings" - in particular the discussion of SPPA s.9(1)]. Where this exception applies the tribunal does not have the discretion to merge the proceedings or any part of them, or to hear the proceedings at the same time [SPPA s.9.1(3)].
3. Notice of Hearings
(a) General Rules
Of course, parties to a proceeding are entitled to a Notice of Hearing.
Regardless of the type of hearing being conducted, it is a general SPPA rule that "reasonable notice" (ie. adequate time to prepare for the hearing) shall be given by the tribunal to the parties [SPPA s.6(1)]. IMHO this is a seismic and positive common sense shift from the default rule of civil litigation that opposing parties must serve key documents upon each other, and then file affidavits of service verifying that they have.
The SPPA does not elaborate on the details of such service any further, so adequate time notice must be assessed in the facts of each case. Prejudice caused by short notice can be used to argue for an adjournment (see s.8 below).
All Notices of Hearing must "include a reference to the statutory authority under which the hearing will be held" [SPPA s.6(2)].
(b) For Oral Hearings
A Notice of Hearing for an oral hearing must include:- "the time, place and purpose of the hearing"; and
- "a statement that if the party notified does not attend at the hearing, the tribunal may proceed in the party's absence and the party will not be entitled to any further notice in the proceeding." [SPPA s.6(3)]
(c) For Written or Electronic Hearings
Where tribunals have made rules under s.25.1 SPPA which govern procedures for written or electronic hearings, specific Notice of Hearing requirements should exist for such hearings.
Practically, notices for written hearings are essentially schedules for the exchange of documents.
(d) Alternative Notice of Hearing
Where the tribunal is of the opinion that the number of parties or "any other reason" makes it impractical to serve individual parties with Notices of Hearing, then it may give reasonable notice by "public advertisement or otherwise as the tribunal may direct" [SPPA s.24(1)]. Such a procedure is more commonly used in municipal property issues regarding use of public lands, though the standard practice by far is individual notice.
4. Parties and Representation
(a) Parties
The "parties" to a proceeding are typically those entitled to full participation on an equal basis with other parties (ie. receipt of documents, adducing of evidence, making of legal submissions, etc).
Party status is usually self-evident from the context of any particular proceeding, and it includes those directly effected by the exercise of the statutory power of decision that is at issue. Normally party-status is established either by [SPPA s.5]:- the parent statute of the tribunal; or
- the common law (which essentially allows the presiding member to admit as parties those whose interests are effected by the exercise of the statutory power of decision).
(b) Representation
All parties to a proceeding are entitled to representation [SPPA s.10], which includes any Law Society of Ontario licensee - ie. a lawyer or a paralegal.
Additionally, the Law Society Act and By-Laws allows some non-licensees to represent parties in some legal proceedings, typically when their normal business activities naturally involve them in such proceedings (eg. union or employer officials, corporation directors, etc) - but also, in some circumstances: friends, neighbours and family members. These exemptions are listed at this link (you should check them carefully before attempting to act in this capacity):
Law Society By-law 4, s.30: Providing Class P1 Legal Services without a Licence
However the Tribunal may "exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser." [SPPA s.23(3)].
5. Default Proceedings
Failure of a party to attend at an oral hearing for which Notice of Hearing has been given may result in the hearing proceeding without them, and that party receiving no further notices in the proceeding [SPPA s.7(1)].
Similar default proceedings exist for written and electronic hearings [see Ch.11: "Tribunal Rule-Making Authority: Written and Electronic Hearings"].
6. Control of Proceedings
Tribunals may make such orders and give such directions at an oral or electronic hearing as it considers necessary "for the maintenance of order at the hearing". On a failure to obey or comply with such orders or directions by any person (thus including both parties and witnesses), the tribunal may call "for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose" [SPPA s.9(2)].
Obviously use of such assistance is rare, but it is not uncommon for modern administrative tribunals to employ security personnel in their offices, sometimes closely in relation to hearings.
7. Adjournments
As noted above [s.3], it is a general SPPA rule that tribunals shall give "reasonable notice" (ie. notice with adequate time to allow a party to prepare for the hearing) of a hearing to the parties [SPPA s.6(1)].
However, it is also a general SPPA rule (applicable to all types of hearings) that the tribunal may adjourn the hearing either "of its own motion" or "where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held" [SPPA s.21].
It is common for tribunals to unilaterally reschedule hearings due to their own administrative needs or member availability. Typically such adjournments will be made to dates far enough ahead so that the parties once again have "reasonable notice" to arrange their other affairs, witnesses and such (ie. bumping dates backward or forward a few days will normally only be done on consent of all the parties).
Depending on the rules and informal practice of the tribunal you are dealing with - and the inclination of other parties' and their representative - in past it has been common for parties to themselves initiate adjournments without the need for an attendence or other formal procedure to decide. Parties will typically telephone and/or send a letter to all other parties (unless they are noted in default: see s.6 above) explaining the reason for the adjournment and suggesting alternative dates. Brief written consents are then prepared expressing consent to the adjournment and a range of other mutually-available dates (they need not be too formal - sometimes a signed hand-note stating "approved" in the margin of an adjournment request letter is adequate). The consent documents are then provided to the tribunal as early as possible before the scheduled hearing date, and the typical result (unless the present hearing date is looming close) is that the Tribunal will administratively change the date. Where present dates are close it is typical practice to require the requesting party to speak to the adjournment request as a preliminary matter at the hearing (a risky prospect unless one is prepared to proceed).
That said, several tribunals now have established specific 'Practice Directions' which set out their policies and procedures for adjournment requests. The website of the Tribunal you are dealing with should be checked for just such a policy.
Adjournment requests made without prior notice at the date of hearing should only be based on exigent and unforeseeable circumstances such as the unavailability of a witness or party, illness, illiteracy, absence of translator, late retention of representative or other emergency.
Of course, parties on their own (ie. with all-party consent) do not have a general authority to reschedule hearings as a matter of right. It is still for the tribunal to approve any adjournments.
8. Openness of Proceedings
The general SPPA rule is that an oral hearing is open to the public. The tribunal may vary from this rule if it is of the opinion that [SPPA s.9(1)]:- "matters involving public security may be disclosed", or
- "intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public."
The SPPA is silent on general public access to tribunal files (it addresses this only re written hearings: see Ch.11: "Tribunal Rule-Making Authority: Written and Electronic Hearings"). If the issue arises, see these case extracts generally: Open Court Doctrine.
9. Prohibitions on Photographing and Electronic Recording
(a) General Prohibitions
. General Prohibition on Photographing and Recording
"No person shall, ... take or attempt to take a photograph, audio or video recording or other record capable of producing or transmitting visual or aural representations by electronic means or otherwise [SPPA 29(1)(a)]:. at a hearing,
. of any person entering or leaving the room in which a hearing is to be or has been convened, or
. of any person in the building in which a hearing is to be or has been convened if there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing, other than in an area of the building designated by the tribunal for the purpose and with the person’s consent." . Prohibition on Publication, Broadcasting, Reproduction or Other Dissemination
"No person shall ... publish, broadcast, reproduce or otherwise disseminate a photograph, recording or record taken in contravention" of the above [ie. 'General Prohibition on Photographing and Recording'] [SPPA 29(1)(b)].
. Prohibition of Broadcasting, Reproduction or Other Dissemination of Personal Audio Recordings
"No person shall ... broadcast, reproduce or otherwise disseminate an audio recording" made "in a manner authorized by the tribunal, by a representative, a party acting on their own behalf or a journalist, for the sole purpose of supplementing or replacing notes" [SPPA 29(1)(c), 2(b)].
(b) Exceptions
The prohibitions set out in (a) above ['General Prohibitions'] do not apply regarding the following [SPPA 29(2)]:. the "unobtrusive making of notes or sketches of events at a hearing by a person";
. "the making of an audio recording at a hearing, unobtrusively and in a manner authorized by the tribunal, by a representative, a party acting on their own behalf or a journalist, for the sole purpose of supplementing or replacing notes"; or
. such an act:- if it is required for the presentation of evidence, the making of a record or any other purpose of the hearing,
- with the consent of the parties and witnesses, or
- in connection with any ceremonial proceeding.
(c) Offence
Every person who contravenes he prohibitions set out in (a) above "is guilty of an offence and on conviction is liable to a fine of not more than $25,000" [SPPA 29(3)].
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