- Remedies Available
- Undue Delay
Like so much administrative tribunal procedure, the concept of a "motion" is drawn from civil court practice where they are - in essence - small hearings (oral or otherwise) used (primarily) to resolve procedural questions. At their most adventuresome in the civil litigation context, they are used to argue "motions for summary judgment" and "non-suit" motions, which are truncated forms of hearing a case on its factual merits.
The SPPA makes no specific rules for the procedure to be used by tribunals on motions, and the matter is only addressed by Board Rule 5, discussed below. Given the silence of the SPPA on motions generally, it would seem that R5 is jurisdictionally well-grounded in the general rule-making authority given to
tribunals under s.25.1(1) SPPA.
3. Remedies Available
Board Rule 5 allows a party (not a "participant", see the chapter "Parties") to bring a motion "before or during the hearing" regarding:
These individual issues are addressed in topical locations elsewhere in the legal guide.
- the "jurisdiction of the Board,
- a request for an adjournment,
- party status,
- a constitutional issue,
- a significant legal issue,
- any other procedural matter."
4. Undue Delay
A respondent (ie. alleged offender) subject to long-extended proceedings may seek to have the proceeding stayed by motion to the Board - or in some cases to a court.
In Warren v CICB (Ontario) OJ #5205 (QL) (Div Ct, 2005) the Court ordered a proceeding permanently stayed (suspended) for abuse of process where it was still on-going after 10 years. The court ruled that delay alone - without "prejudice" (aka legal "harm") - would not justify such a remedy. "Prejudice" was present here in Warren due to loss of evidence related to the delay and its impact on the ability to have a fair hearing, and in the psychological impact on the respondent.
The court in Warren noted further that but for the extreme circumstances of this case the motion for dismissal for delay should have been heard by the Board itself. In most cases then the matter should be heard on motion to the Board.
Rule 5 does provide that motions may be heard either orally or electronically (ie. telephone). (see the chapter "Hearings" on analogous procedures used for oral and electronic hearings).
Otherwise however, Rule 5 remains silent on such details as: evidence to be used, Notices of Motion, filing and service requirements, and other necessary procedural issues. To fill this gap, parties may want to have recourse to practices modelled from civil litigation, well-tested as to compliance with principles of natural justice.
Readers may wish to review the motion procedures used in Small Claims Court, linked here:
Small Claims Court: Motions