Administrative Law (Ontario)(SPPA)
(01 January 2015)
Chapter 7 - General SPPA Rules: Orders
- Interim and Interlocutory Orders
- Final Orders
(b) Reasons for Decision
(d) Effective Date of Service
- Costs and Interest
- Variation of Orders
- Abuse of Process
This chapter discusses the general Statutory Powers Procedures Act (SPPA) rules that govern tribunals when they are making interlocutory (usually procedural) orders, final orders and decisions, and variance of such orders.
Additional order-related rules governing costs awards [Ch.16], service of decisions [Ch.15], review of such orders [Ch.17] and orders to control process [Ch.18] may be made by a tribunal under its s.25.1 authority. These authorities are discussed in their separate chapters as noted.
2. Interim and Interlocutory Orders
'Interim' orders tend to deal temporarily with the substantive (rights) subject-matter of a case while it awaits full hearing, while 'interlocutory' orders are generally more procedural in nature. Both are distinct from final orders [see s.3 below], which on their face finally dispose of the issues in contention in a case.
A tribunal may make interim decisions and orders, with or without conditions, and without reasons [SPPA s.16.1].
Tribunals always have jurisdiction to make interlocutory procedural orders, and they may be heard by a panel of one or more members assigned by the Chair [SPPA s.4.2(1)].
In Platinum Auto Gallery Inc. v. Registrar, Motor Vehicle Dealers Act (Ont Div Ct, 2013) the court held that a tribunal's SPPA authority to make interim orders did not extend to overriding plain statutory provisions in a parent statute.
3. Final Orders
As is noted above, 'final orders' are those that, at least on their face (they may be altered by further proceedings such as variations, reconsiderations, appeals and judicial reviews), finally dispose of the issues in contention in the case.
Final decisions and orders must be in writing and, if so requested by a party, be accompanied by reasons [SPPA s.17(1).
(b) Reasons for Decision
The giving of thorough written reasons for an order is useful for a number of purposes, including both appellate review and ensuring that adjudicators are exercising the type of discipline that we are entitled to expect of them in their important roles. Busy tribunals sometimes resort to reasons which simply recite the legislation and state "template" fact-finding and legal conclusions, a practice that is epidemic amongst first-level (and purely) administrative decision-making. This is a problem when considering review or appeal of such decisions, and generally for the acknowledged principle that justice should be transparent.
This concern give rise to the much-litigated issue of when "reasons for decision" are adequate.
In Gray v Ontario (Director, ODSP)  OJ #1531 (QL) (Ont CA, 2002) the Court considered the adequacy of a tribunal's reasons where the parent statute read: "the Tribunal's decision shall include the principal findings of fact and its conclusions based on those findings". It applied statements by Estey J from the Supreme Court of Canada in the case of Re Northwestern Utilities Ltd. and City of Edmonton (1978), 89 D.L.R. (3d) 161 regarding the importance of providing reasons for decision, as follows:
This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal and if taken, the opportunity in the reviewing or appellate tribunal of a full hearing which may well be denied where the basis of the decision has not been disclosed.Essentially then, "reasons for decision" should include fact-findings, the reasoning for the fact-findings, and a logical integration of these fact-findings into the legal rules applicable. Reasons should be adequate to expose the process of adjudication to a reviewing body or court.
... It is not enough to assert, or more accurately, to recite, the fact that evidence and arguments led by the parties have been considered. That much is expected in any event.
.... The failure of the Board to perform its function under s. 8 included most seriously a failure to set out "the findings of fact upon which it based its decision" so that the parties and a reviewing tribunal are unable to determine whether or not, in discharging its functions, the Board has remained within or has transgressed the boundaries of its jurisdiction established by its parent statute. The obligation imposed under s. 8 of the Act is not met by the bald assertion that, as Keith J. succinctly put it in Re Canada Metal Co. Ltd. et al. and MacFarlane (1973), 41 D.L.R. (3d) 161 at p. 171, 1 O.R. (2d) 577 at p. 587, when dealing with a similar statutory requirement, "my reasons are that I think so".
Final decisions and orders, including any reasons, shall be sent to all parties (or their representative) by mail, by email, or by fax. A tribunal may make other s.25.1 rules regarding service of decisions as long as the methods used make a "proof of receipt" available [SPPA s.18(1)] (see Ch.15: "Tribunal Rule-Making Authority: Service of Decisions").
Where the tribunal is of the opinion that the number of parties or "any other reason" makes it impractical to serve individual party with any orders, final decision or reasons for decision [as per SPPA s.18], then it may give reasonable notice of same by "public advertisement or otherwise as the tribunal may direct" [SPPA s.24(1)]. Such a Notice shall inform the parties where copies of the order, final decision or reasons for decision may be obtained [SPPA s.24(2)]. Such a procedure would be unusual (perhaps most common in municipal property cases), and the normal practice by far is individual mailed notice.
(d) Effective Date of Service
The date on which a decision or order is deemed to have been received is important as it frequently triggers the commencement of any appeal, review or reconsideration limitation periods. But of course not all forms of service are immediate. This gives rise to the concept of 'deemed service', that is: the date at which service is deemed to have been achieved.
Mail shall be sent to the last known address and shall be deemed to have been received five days after mailing [SPPA s.18(2)]. Fax or email delivery shall be deemed to have been received the first non-holiday day after it was sent [SPPA s.18(3)]. Holidays are listed in the Small Claims Court (Ontario) Legal Guide:
Small Claims Court (Ontario): Ch.7, s.4: "Time Limits: Holidays
Where a tribunal has made rules under s.25.1 regarding alternative service of a decision, those rules govern the deemed date of receipt [SPPA s.18(4)].
Deemed date of receipt may be extended by the tribunal where a party has failed to receive the decision or order by reason of good faith "absence, accident, illness or other cause beyond the party's control" [SPPA s.18(5)].
4. Costs and Interest
It is common practice in court proceedings for the winning party to be paid 'legal costs' by the loser. While there are many variations to this principle, it normally includes at least a part of the legal fees, and usually all of the disbursements, incurred in the conduct of the proceeding.
However, there is no general SPPA or common law authority in a tribunal to make costs orders. Such authority only exists under the SPPA where the tribunal has made rules under its SPPA s.17.1 authority (see Ch.16: "Tribunal Rule-Making Authority: Cost Awards"), and then only where the behaviour of the 'paying' party has been "unreasonable, frivolous or vexatious or a party has acted in bad faith" [SPPA s.17.1(2)].
Any cost rules established under other statutes in force at 14 February 2000 which deal with costs in circumstances other than those for which tribunal rules have been established - still apply [SPPA s.17.1(6)].
Money orders of the tribunal shall state the principal sum and, if interest is payable, the rate and date from which it is payable [SPPA s.17(2)]. In court judgments it is normal practice to request and be granted 'pre-judgment interest' covered the period between the commencement of the proceeding and the judgment, and this provision allows tribunals to do that.
That said, most tribunals do not provide for the awarding of interest in their orders, even if they are 'money judgments', although once an order is filed with a court for enforcement it attracts post-judgment interest in accordance with court rules. This is discussed in Ch.8: "Enforcement".
5. Variation of Orders
A tribunal may at any time correct a typographical error, error of calculation or similar error made in its decision or order [SPPA s.21.1]. This is a general SPPA tribunal authority.
A tribunal also has s.25.1 rule-making authority to establish more extensive rules for reviewing or 'reconsidering' its own orders. Such rules may authorize a tribunal to, within a reasonable time, "review all or part of its own decision or order", subsequent to which it "may confirm, vary, suspend or cancel the decision or order" [SPPA s.21.2(1)(2)] (see Ch.17: "Tribunal Rule-Making Authority: Review of Orders").
If any other statutory provisions regarding variation or decisions and orders exists, they override any s.25.1 tribunal rules in the event of conflict [SPPA s.21.2(3)].
6. Abuse of Process
Note:Abuse of process is also discussed in Ch.10, s.5: Tribunal Rule-Making Authority: Overview: Abuse of ProcessIn addition to it's general power to make procedural rules under s.25.1 (see Ch.10: "Tribunal Rule-Making Authority: Overview"), a tribunal may make orders with respect to its own procedures and practices with respect to any particular proceeding before it [SPPA s.25.0.1].
Similarly, a tribunal may make orders and give directions as it considers proper to prevent abuse of its processes [SPPA s.23(1)]. Such concerns have traditionally involved such things as undue delay in the conduct of the proceedings, 'frivolous or vexatious' proceedings, and others issues. Most commonly though the doctrine has been applied to stay proceedings for cause-of-action estoppel (ie. where the present issues have already been litigated amongst the parties in another forum).
In Nyonzima v Human Rights Tribunal of Ontario 2012 ONSC 5120 (CanLII) the Divisional Court considered a judicial review application from an HRTO applicant whose case was not only dismissed, but held to be an abuse of process. The HRTO finding of abuse of process (rather than a simple dismissal) appears to have been motivated by a finding that the applicant had attempted to introduce forged letters into evidence. The court, citing the high level of review deference to be accorded to the HRTO both by reason of it's institutional expertise and that it was engaging largely in fact-findings in reaching it's conclusions, dismissed the judicial review.
The Divisional Court case of Martinez v. Toronto Police Services Board(CanLII) [2012 ONSC 2893], emanated from police discipline hearings in relation to their conduct during the G20 demonstrations in June 2010. The officers moved to judicially review the decision of the Toronto Police Services Board to exercise it's statutory discretion under s.83(17) of the Police Services Act to serve notices of hearing more than six months after the day on which the Office of the Independent Police Review Director (“OIPRD”) decided to retain a public complaint for investigation.
No evidence was adduced as to prejudice caused by the delay, but in any event the application was dismissed as premature in light of the parties' as-yet unused abuse of process s.23(1) SPPA remedy, which could be applied at the administrative proceedings level to relieve against prejudice caused by the delay.