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Administrative Law (Ontario)(SPPA)
(01 January 2015)

Chapter 1 - Tribunals and Their Rules

  1. Background
  2. The Statutory Powers Procedures Act
    (a) General
    (b) General SPPA Rules
    (c) Tribunal Rule-Making Authority (s.25.1 SPPA)
    (d) Godwin and the Range of the s.25.1 Rule-Making Authority
    . The Issue
    . MTHA v Godwin (Ont CA, 2002)
  3. Tribunal Rules May be From Several Sources
  4. Conflict Between Rules
    (a) Overview
    (b) SPPA versus Non-SPPA Acts (and non-SPPA Subordinate
    Legislation)
    (c) SPPA v Tribunal-Made Rules (under SPPA s.25.1)
    (d) Tribunal-Made Rules (under SPPA s.25.1) v Non-SPPA Acts (and
    non-SPPA Subordinate Legislation)
    (e) The Ontario Human Rights Code
    (f) The Canadian Charter of Rights and Freedoms
    (g) Summary
    (h) Comment
  5. Natural Justice and Fairness: The Baker Test
    (a) Overview
    (b) Baker Background
    (c) Baker Principles
    (d) Conclusion
  6. Waiver of Rules
  7. Interpretation of Rules
------------------------------
NOTE:

This chapter could easily have been named "Rules about Rules - and more Rules about those Rules, with Exceptions, Exemptions and Exceptions to Exemptions". It is not for the light-hearted.

Remember that this chapter (and this whole Legal Guide for that matter) is about both the rules which govern tribunal procedures generally - and about the rules which govern rule-making by tribunal themselves. For those who prefer just to know what the rules are that govern specific tribunals - it is best to stick to the Legal Guides on those specific topics (ie. Criminal Injuries Compensation, Human Rights Law (Ontario), Residential Landlord and Tenant Law (Ontario), etc).

1. Background

The Courts of Ontario are governed by their own specific rules, such as the "Rules of Civil Procedure" for the Superior and higher courts, and the "Rules of the Small Claims Court" for that court. The function of such rules is essential: to ensure that court proceedings are conducted in accordance with "rules of natural justice", a broad common law term really meaning that basic legal rules of fairness and even-handedness are adhered to.

The rise of numerous free-standing non-court tribunals governing specific and (largely) self-contained legal areas - such as the Landlord and Tenant Board governing residential landlord-tenant issues, or the Social Benefits Tribunal governing social assistance issues - has of course created the need for new sets of rules to govern these unique tribunal proceedings.

The Statutory Powers Procedures Act (SPPA) sets out basic 'minimum standard' procedural rules for most - but not all - of Ontario's tribunals, and as well sets out where a Tribunal may itself make rules governing it's proceedings. The SPPA itself sets out when it applies to tribunals and tribunal proceedings: ie. when the tribunal is exercising a "statutory powers of decision".

However, the "parent" statute of a tribunal (which establishes it's existence and basic function) may also establish procedural provisions effecting the tribunal and (in some cases) it may expressly exempt the tribunal from the application of the SPPA, in whole or in part. It can also happen that only some proceedings (usually minor ones) of a tribunal are exempted from the SPPA either because those proceedings do not themselves involve a "statutory power of decision" or because the parent statute specifically exempts them from the SPPA's application.


2. The Statutory Powers Procedures Act

(a) General

As noted, rules established under the SPPA fall into two main categories: general SPPA rules governing all SPPA-governed tribunals, and rules made by specific tribunals under rule-making authority granted under SPPA s.25.1.

In addition, a tribunal may make orders with respect to its own procedures and practices with respect to any particular matter before it: a broad catch-all provision that allows Tribunals hearing cases to deal with unaddressed situations that may arise before them, and even to 'break' their own rules at times [SPPA s.25.0.1].

(b) General SPPA Rules

The first category are rules that are created expressly within the Act ("general SPPA rules") and which (unless otherwise exempted) directly establish basic procedural rules for SPPA-governed tribunals regarding a range of things, such as service of documents, remedial jurisdiction of the tribunal, rules of evidence, conduct of hearings, cost rules - and much more. These rules are considered in Chapters 3-9 of this Isthatlegal.ca Legal Guide.

(c) Tribunal Rule-Making Authority (s.25.1 SPPA)

The second category are procedural and practice rules made by the tribunal under authority delegated for that purpose under the SPPA. The authority for these rules is located in a number of specific sections of the SPPA (eg. s.5.1 re written hearings, s.5.2 re electronic hearings, s.17.1 re legal costs - and several more) - but all of these specific authorities refer to and are drawn together in s.25.1 of the SPPA which authorizes a tribunal generally to make "rules governing the practice and procedure before it".

Closely related to the s.25.1 authority - and perhaps identical to it - is an additional authority set out in s.25.0.1(b).

Tribunal rules made under SPPA s.25.1 or under any other legislation must be made publically-available [SPPA s.27].

(d) Godwin and the Range of the s.25.1 Rule-Making Authority

. The Issue

An important and interesting issue is whether the general s.25.1 (and s.25.0.1) rule-making authority is limited to the specific rule-making authorities that are set out throughout the SPPA [for example, and as noted above: s.5.1, 5.2 and 17.2] - or whether it can extend beyond them to address procedural issues for which no specific rule-making authority has been given.

It is clear that if a specific provision of the SPPA authorizes rule-making by a tribunal on the topic of, say - the awarding of legal costs (s.17.1) - but on specific terms - then the tribunal cannot use its general s.25.1 authority to make rules that conflict with those specific terms [s.25.1(3)].

However, what of the situation where the specific rule-making authorities in the SPPA are silent on a procedural topic and do not set out any specific rule-making power? Is s.25.1 SPPA broad enough to authorize a tribunal in making a rule to cover a new situation? This issue came up for consideration in the Godwin case.

. MTHA v Godwin (Ont CA, 2002)

The Ontario Court of Appeal case of Metro Toronto Housing Authority v Godwin [2002] O.J. No. 2514 (QL) suggests that s.25.1 and s.25.0.1 are to be read widely to provide tribunals with broad procedural rules-making authority beyond the specific rule-making authorities otherwise set out throughout the SPPA. In Godwin the Court of Appeal endorsed the jurisdiction of the Rental Housing Tribunal to accept the evidence of 11 tenants - in a representative action involving hundreds of tenants - to stand as the evidence for the tenants' collective case, something not specifically anticipated nor allowed for in the SPPA.

While the result in Godwin turned as well on specific provisions of the Tenant Protection Act and a general procedural rule made by the Rental Housing Tribunal under that Act and the SPPA, the Court of Appeal endorsed an expansive and liberal interpretation of the procedural rule-making discretion given to an SPPA-governed tribunal:
... because the SPPA applies to certain types of hearings held by the Tribunal, including a hearing of the type initiated here, the Tribunal's power over its own procedures and processes is confirmed by s. 25.0.1 of the SPPA and the rule-making authority conferred on the Tribunal under s. 164 of the [Tenant Protection] Act and s.25.1 of the SPPA.
While each case of this nature will have to be considered in the context of the multiple layers of law and rules that it may exist within, the Godwin case suggests that the s.25.1 rule-making power (while it must be exercised in a manner consistent with the specific procedural rule-making authorities set out throughout the SPPA [SPPA s.25.1(3)]) will be interpreted as being otherwise unrestricted to those specific provisions.


3. Tribunal Rules May be From Several Sources

Rules which govern any particular tribunal procedure may be located in several different sources, including:
  • the "parent" statute of the tribunal and that statute's regulations;

  • other statutes and regulations;

  • "general" SPPA rules;

  • "s.25.1-SPPA Tribunal-made rules; and

  • common law rules of "natural justice".
This layering of source law is an unfortunate reality which has confused many, lawyers and laypersons alike, in their dealings with these tribunals, and in cases of conflict it can give rise to often-awkward issues of which of the rules is 'paramount'. This potential for conflict is considered next.


4. Conflict Between Rules

(a) Overview

The fact that procedural laws governing one situation must be drawn from multiple sources alone is confusing enough, but it can be compounded when the different sources of rules come into apparent conflict - which does happen. In that case, which has paramountcy?

A first step towards imposing order on this situation is to adopt a simple distinction between Acts (aka statutes) and "subordinate Rules" (ie. regulations, rules and by-laws made under Act authority).

Regulations, like statutes, are considered legislation but instead of being passed into law by the legislature they tend (they aren't always) to be passed into law by the executive government or cabinet of the party in power (formally the 'Lieutenant-Governor in Council').

Below that is another level, often called 'rules' which are typically Tribunal made, often under the SPPA s.25.1 powers discussed above in s.2(c).

Following are my views on how to resolve these paramountcy issues.

(b) SPPA versus Non-SPPA Acts (and non-SPPA Subordinate Legislation)

In the event of conflict between the Statutory Powers Procedures Act (only the Act - not its subordinate Rules) versus other Acts - and their subordinate Rules, then the SPPA governs - unless the other statute expressly states that it overrides the SPPA:
SPPA s.32
Unless it is expressly provided in any other Act that its provisions and regulations, rules or by-laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.
To be more specific: the general SPPA rules [ie. those which are spelled right out in the text of the SPPA (and considered in Chapters 3-9), as opposed to the rule-making authority given to tribunals by the SPPA (as considered in Chapters 10-20)] overrides non-SPPA Acts and their subordinate legislation unless expressly provided otherwise in another ACT.

Of course, that is not the end of the issue. How "express" must "express" be to override the SPPA? Sprinkled throughout all of Ontario's statutes you will find other provisions - variously worded - claiming paramountcy from time to time. Each must be assessed on its own wording, context and terms.

For example, the Human Rights Code has its own paramountcy provision which actually expands its own paramountcy over SPPA rules by allowing even Code regulations and Tribunal Rules to trump SPPA rules. It reads as follows:
Human Rights Code
42(1)
The provisions of the Statutory Powers Procedure Act apply to a proceeding before the Tribunal unless they conflict with a provision of this Act, the regulations or the Tribunal rules.

42(2)
Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the Tribunal rules prevail over the provisions of that Act with which they conflict.
Other paramountcy provisions in other statutes are different.

As well, the discussions of the "Refusal to Proceed" [Ch.19] and "Summary Dismissal for Cause" [Ch.20] s.25.1 rule-making authorities reveal grandparenting provisions which only temporarily override the SPPA - ... and so it goes on. This is not a simple topic.

(c) SPPA v Tribunal-Made Rules (under SPPA s.25.1)

Logically, when the SPPA sets out conditions on the rule-making authority of tribunals under s.25.1 and related SPPA provisions, those conditions govern what those Rules can say and the Rules cannot override them. Similarly, where the SPPA sets out general Rules directly in its provisions, tribunal-made Rules cannot override these either:
SPPA s.25.1(3)
The rules shall be consistent with this Act and with the other Acts to which they relate.
That said, the HRC s.42 quote above shows how quickly a common sense paramountcy resolution like this can be undermined, and how scattered the laws are in this very important area.

(d) Tribunal-Made Rules (under SPPA s.25.1) v Non-SPPA Acts (and non-SPPA Subordinate Legislation)

From the above it is plain that rules made by a tribunal under s.25.1 may not normally conflict with Acts. This of course would include non-SPPA Acts [SPPA s.25.1(3)]. Therefore non-SPPA Acts are normally paramount over s.25.1 SPPA Rules.

The paramountcy between rules made by a tribunal under s.25.1 SPPA and subordinate legislation made under non-SPPA Acts is a bit more obscure. In the "application" (ie. to what tribunals the SPPA 'applies') portion of the Act, we find the following: ... [the SPPA] does not apply to a proceeding .... (h) of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned [SPPA s.3(2)(h)].

In addition, the SPPA provides that the rule-making authority granted under s.25.1 SPPA does not take away from any other rule-making authority the tribunal may have under any other statutes [SPPA s.25.1(6)].

It thus appears that tribunal-made s.25.1 rules are overridden by both non-SPPA Acts (and legitimately-made non-SPPA subordinate legislation) ... unless of course, another provision like HRC s.42 crops up somewhere.

Frankly this area of law is a mess. It is in desperatel need of reform to assist Tribunals, and parties appearing before them, in the task of determining what rules they are subject to, and their legitimacy.

(e) The Ontario Human Rights Code

In Tranchemontagne v Ontario (Director, Disability Support Program) [2006 SCC 14] the court held that administrative tribunals (there the Social Benefits Tribunal) that have jurisdiction to decide questions of law thereby have jurisdiction to consider and apply the Ontario Human Rights Code, unless otherwise limited by law. This jurisdiction does not extend to tribunals having declaratory jurisdiction to declare a statutory provision of no force and effect, but only the jurisdiction to find that the Code may in the proper case, and only within that case, override another statutory provision or the common law. Additionally, where such Code jurisdiction does lie with a tribunal it does not expand it's remedial jurisdiction.

Anyone considering advancing Code arguments before any specific tribunal should be aware of any special procedural requirements for advancing such arguments. For instance, the Social Benefits Tribunal now conducts bifurcated hearings: the first for conventional legal issues and the second, if still necessary, for Code issues. Parties seeking to argue Code issues must so notify the SBT of this intention as soon as practical after the intention is formed.

(f) The Canadian Charter of Rights and Freedoms

Tribunal jurisdiction to consider the Canadian Charter of Rights and Freedoms (the "Charter") is determined in pretty well the same way as is the case with the Human Rights Code (above).

In the 2010 case of R v Conway (SCC, 2010) the Supreme Court of Canada had to decide whether the Ontario Review Board, established under the Criminal Code to decide custodial issues respecting persons declared not criminally responsible ("NCR") by the courts, was a "court of competent jurisdiction" for the purposes of considering Charter law and granting Charter remedies under s.24(1) of the Charter. The court took the oppourtunity to clarify and summarize the law respecting when any administrative tribunal could apply Charter s.24(1). The court held that the primary question was (similar to that discussed in Tranchemontagne regarding the Human Rights Code) whether the tribunal generally had jurisdiction to decide questions of law. Unless that was expressly restricted by statute, then the tribunal had Charter s.24(1) jurisdiction, but could only grant remedies within it's conventional remedial jurisdiction:
[78] The jurisprudential evolution leads to the following two observations: first, that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them. And secondly, they must act consistently with the Charter and its values when exercising their statutory functions.

.....

[82] Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function ('Dunedin').
Interestingly, for all their similarity, the Conway case (2010) made no mention of the Tranchemontagne case (2006), nor was Tranchemontagne listed as a considered case.

In Ontario it is the widespread practice in both courts and tribunals to require parties to serve and file "Notices of Constitutional Question" as soon as possible after an intention to advance such issues is formulated.

(g) Summary

The order of paramountcy of rule-sources that apply to Ontario Tribunals is:
1. General SPPA Rules (embodied in the SPPA) [SPPA s.32]
  • unless the Tribunal is excepted pursuant to s.3 SPPA, in which case 2 and 3 prevail in that order

  • unless the SPPA is 'expressly' overriden by non-SPPA Acts and subordinate Rules pursuant to the s.32 SPPA exception, in which case 2 and 3 prevail in that order
2. Non-SPPA Acts [s.25.1(3)][SPPA s.25.1(6)].

3. Non-SPPA Subordinate Rules [SPPA s.3(2)(h)].

4. s.25.1 SPPA Tribunal-Made Rules
Of course, the 'wild card' in all this is the possibility that a court, on appeal or judicial review, will impose additional or different procedural duties on a Tribunal so that the process accords with common law principles of "fairness" and "natural justice". These are considered in the s.5, following.

And lastly, if applicable, the Human Rights Code and the Charter 'dissolve all' - at least for the purposes of the case in which they are applied.

(h) Comment

Confused yet? You should be - and I'm sure more complex variations of conflict are possible which I haven't even anticipated. Anyone involved in sorting out these conflicts should review the provisions referenced carefully.

But what all of this means is that it is essential - when dealing comprehensively with any specific Tribunal - to locate and integrate all of the rule-sources that apply to any particular proceeding. Further, if any of these sources conflict with each other then their paramountcy must be established in accordance with the above priorities. Do not assume that the Tribunal's 'way of doing things' is always legitimate, as they often overstep their bounds and enter into rule-making where they lack jurisdiction.

If you have done this work then you will be best equipped (perhaps even better equipped than the tribunal member!) to understand and advocate the tribunal's authority and procedure to it.


5. Natural Justice and Fairness: The Baker Test

(a) Overview

Courts reserve the right, as an aspect of their constitutional authority to govern inferior tribunals [Constitution Act, s.96], to sometimes cut through all the confusion of statutes, regulations and rules to impose procedural requirements on Tribunals in the name of natural justice. A similar authority exists for them to require analogous (and increasingly indistinguishable) rules in purely administrative (ie. non-adjudicative) processes, there called "fairness": Nicholson v Haldimand [1981] 1 SCR 92. These rules are highly variable and hard to define, but amount to a discretion in the reviewing court to impose additional procedural requirements on a Tribunal where the court thinks they need to be there to preserve the integrity of the process.

The leading case on this issue is Baker v Canada (Minister of Citizenship and Immigration) (SCC, 1999) and it is considered in more detail in this section (below). What needs to be remembered however is that there are no hard and fast rules in this area of law, and it is only when a court tells you that 'natural justice' or 'fairness' have been violated that you know that they have.

(b) Baker Background

Mavis Baker, an illegal immigrant with Canadian-born children, was ordered deported. She sought to apply for permanent residence but wanted to avoid a rule that requires such applications to be made from outside of Canada. She applied for a statutory 'humanitarian and compassionate grounds' exemption from this rule. The application was denied by letter without reasons. Only the adjudicator's (then) unreleased notes existed to substantiate the reasons for the decision.

She applied for judicial review of the decision in federal court. The court considered whether the absence of issued and articulated reasons violated natural justice. This is frequently argued on grounds of the need for such legal processes to be transparent, and the need for any reviewing court to have a full record of what transpired at the lower level to examine it for it's reasonableness and legal correctness.

In the end, the SCC in Baker held that the availability of the adjudicator's notes, sought out and obtained by her counsel after the decision was issued, in fact constituted adequate Reasons for Decision, and the application was dismissed. That said, the court took the oppourtunity to engage in a wide-ranging revision and re-statement of the law in this area.

(c) Baker Principles

The SCC set out a broad-based test for lower courts to determine when and if additional procedural ('fairness' and 'natural justice') requirements should be imposed on administrators and Tribunals. The 'Baker test' focussed on broad principles of openness and participation, and comprised the following (non-exhaustive) elements:
  • Nature of the Decision

    'the nature of the decision being made and the process followed
    in making it';

    This is essentially a comparison of the administrative process
    being reviewed against civil court procedures, which are viewed
    as the 'gold standard' of fairess. This assessment is conducted
    in light of a comparison of the functions of the court and those
    of the administrative process being reviewed.

  • Statutory Scheme

    'the nature of the statutory scheme and the terms of the statute
    pursuant to which the body operates';

    Greater fairness will be required when the administrative
    procedure being reviewed lacks an adequate appeal process.

  • Importance of the Decision

    'the importance of the decision to the individual or individuals
    affected';

  • Legitimate Expectations

    'the legitimate expectations of the person challenging the
    decision';

    This focusses on representations made to the party by the
    Tribunal as to what degree of fairness he should expect.

  • Choice of Procedures

    'the choices of procedure made by the agency itself'.

    This factor weighs in deference to the Tribunal's manner of
    proceeding.
(d) Conclusion

The Baker case has been an authority on this issue for the last 10 years and numerous lower court decisions have considered it. It is beyond the scope of this present program to analyse it any further.

That said, it is a useful guideline for assessing when and if a Tribunal's procedural treatment of one's case is inadequate and subject to review. For more on this see Ch.9: "Appeals and Judicial Review".


6. Waiver of Rules

Any procedural rule located in the SPPA or any other statute may be waived on consent of the parties and the tribunal [SPPA s.4(1)].

Any procedural rule made by a tribunal under s.25.1 of the SPPA may be waived as those rules provide [SPPA s.4(2)].


7. Interpretation of Rules

Generally the SPPA, and any Tribunal rules made under it's s.17.1 (costs) or s.25.1-delegated rule-making authority, "shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits" [SPPA s.2] (see also the discussion of the Godwin case above).

Substantial compliance with requirements respecting the content of forms, notices or documents under this Act or any rule made under this or any other Act is sufficient. [SPPA s.28].
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