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Statutory Powers Procedure Act (Ontario)(SPPA)
Legal Guide
Chapter 19 - Tribunal Rule-Making Authority: Tribunal Refusal to Process- Overview
- Comment
1. Overview
An SPPA-governed tribunal may make rules under s.25.1 respecting its (or more to the point, it's administrative staff's) refusal to process filed documents as being inadequate to commence a proceeding [SPPA s.4.5(3)]. Reasons for such refusal may include [SPPA s.4.5(1)]:- that the documents are incomplete;
- that the documents are filed late;
- non-payment of a filing fee;
- other technical defects regarding commencement of the proceeding.
Any such rules must set out the reasons on which refusal may be justified, and as well must set out "the requirements for the processing of the documents to be resumed" [SPPA s.4.5(3)].
Similarly, if and when the tribunal (or it's administrative staff) exercises their authority under such rules to decide not to process documentation seeking to commence a proceeding, then the tribunal must give notice to the party of the decision and "shall set out in the notice the reasons for the decision and the requirements for resuming the processing of the documents" (ie. how to fix the problem) [SPPA s.4.5(2)].
This s.4.5/25.1 SPPA authority does not override or diminish any similar authority to refuse to process that a tribunal may have from any other Act in force on 14 February 2000 [SPPA s.4.5(4)]. This is a "grandparenting" clause, preserving similar pre-existing authorities, but asserting the dominance of the s.25.1 SPPA rules if and when those older provisions are repealed.
2. Comment
In my opinion the authority to make rules allowing a tribunal to refuse to commence proceedings has great potential for abuse, and I have written critically of the horrors of similar 'gate-keeping' with respect to the old Ontario Human Rights Code system:
Human Rights Law (Ontario): Ch.1, s.2: Overview: The Past
An example of this abuse potential is found in the case of Ahmed v Ontario (CICB) [2008] QL #2478 (Ont Div Ct). There the court allowed a judicial review application seeking mandamus (a mandatory order against government) against the Criminal Injuries Compensation Board after it refused to issue an applicant the forms necessary to initiate an application. As the basis for its refusal, the CICB stated that: "(i)n the absence of charges, it is assumed that the [alleged assailant police] officers were acting in accordance with the commission of their duties." The court held that this position clearly contravened s.16(1) of the CVCA, which specifically provided that prosecution and/or conviction of a criminal offence was not a prerequisite to an application being granted, and further that the SPPA s.25.1-made rules, which in some cases allowed the refusal of application forms, did not extend to pre-judging the evidence.
That we have administrative tribunals in Ontario being administered by people so oblivious to the rudiments of a legal regime that they would act as the CICB did in Ahmed, should be of profound concern to us all. This degree of arrogance is of 'magna carta' magnitude.
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