- Necessary Terminology
- Constitution of Panels
- Incapacity of Members
Tribunals are central to the Statutory Powers Procedures Act (SPPA) regime, and to administrative law generally. They are of course the adjudicative bodies that preside over individual cases, and their roles, powers and responsibilities are referred to again and again in both the SPPA and the parent legislation governing any regulatory regime.
That said, Tribunals in reality and practice have clear dual aspects to their personality that are unacknowledged both in law and in most peoples' minds, including in my opinion most lawyers' minds. This is the distinction between the 'presiding' tribunal and the 'managing' tribunal.
'Presiding' tribunals are just what they sound like, the panel of Tribunal members who hear and decide individual cases. The 'managing' Tribunal on the other hand, focusses around the Chair and any of several committees that they appoint for various purposes. The SPPA, as will be seen in later chapters (Chapters 10-20) affords tribunals, unlike courts, a much more active role in rule and policy-making. It is these powers that the managing Tribunal exercises, and their intervention into the processes of presiding Tribunals can be quite startling at times.
This is a theme that runs through many of my Isthatlegal.ca Legal Guides, and it crops up in such things as reconsiderations, 'group' consultations respecting individual cases which include members not presiding at the hearing, policy positions taken on specific legal issues, and elsewhere.
It is important for those facing Tribunal hearings to recognize that it is not only the views of the presiding members that 'matter' in a case, as interpretations of rules, and larger policy objectives of the Tribunal often play a part in ultimate decision-making. This has been the case at least since the seminal Supreme Court of Canada case of IWA v Consolidated-Bathurst Packaging (SCC, 1990) which tolerated policy review of the draft decision of a presiding tribunal by Labour Board members not on the presiding panel.
What follows in this brief chapter is a review of the rudimentary constituent elements and structure of SPPA-governed Tribunals, which elements and structures may be viewed as the template model for most Tribunals, subject to variation by the parent statute of any given tribunal.
Much of the law surrounding the appointment of members to a tribunal, and to some extent their operation, has changed significantly with the passage into law in 2010 and 2011 of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA).
2. Necessary Terminology
Following is some boring but necessary terminology to understand the role of a Tribunal governed by the SPPA:
The phrase "statutory power of decision" is the same one that conditions whether any specific tribunal proceeding is governed by the SPPA. It is discussed in more detail in Ch.2: "When the SPPA Applies".
- A "tribunal", as defined in the SPPA, is one or more persons upon whom a "statutory power of decision" conferred by a statute [SPPA s.1(1)].
- A "statutory power of decision" means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not [SPPA s.1(1)];
- A license includes "any permit, certificate, approval, registration or similar form of permission required by law" [SPPA s.1(1)].
Tribunals typically - but not always - are comprised of a Chairperson, one or more vice-chairs, and members. Members of permanent tribunals are generally appointed to fixed terms and a tribunal may consist of 30 or more members - as has been the case with the busy Social Benefits Tribunal at times. In smaller situations a tribunal may be constituted on an ad hoc, case-by-case basis, such as fence-viewers under the Line Fences Act or - until recently - with the appointment of Human Rights Boards of Inquiry (the present Human Rights Tribunal of Ontario has term-appointed members).
With ATAGAA coming into force some related tribunals are now formed into 'clusters', overseen by an 'executive chair'. For instance, the following tribunals are presently included in the 'social justice' cluster [ATAGAA Reg 126/10]:
Also, as of 01 January 2019, a new body called "Tribunals Ontario" now encompasses some 19 tribunals of various sorts, including the social justice tribunals.
- Child and Family Services Review Board.
- Custody Review Board.
- Human Rights Tribunal of Ontario.
- Landlord and Tenant Board.
- Ontario Special Education Tribunal (English).
- Ontario Special Education Tribunal (French).
- Social Benefits Tribunal
ATAGAA has converted what was largely a politically-driven appointments system into one more merit-based, and at arm's length from the executive government. Appointments (though not re-appointments) are now usually advertised, resumes submitted and interviews conducted in a model much more familiar to private business hiring.
A quorum is the number of members required to formally conduct a hearing. Unless otherwise required by statute, the chair may assign a one-member panel to hear a proceeding [SPPA 4.2.1(1)], and this is very commonly done. But even where a statute requires a particular number of members to a panel, the Chair may reduce this number if all parties so consent [SPPA s.4.2.1(2)].
Procedural and interlocutory matters may be heard by a panel of any size, as the Chair assigns [SPPA s.4.2(1)]. Examples of "procedural matters" might include extending timelines for filing documents, approving alternative service methods for documents, or adding and removing parties from the proceeding. "Procedural matters" are distinct from "substantive" matters, the latter of which involve unfettered application of the basic legal 'rights' principles that govern the area of law you are involved with.
The decision of a majority of the panel members, or a unanimity in the case of a two-member panel, constitutes the tribunal's decision [SPPA s.4.2(3)].
5. Constitution of Panels
Tribunals sit in "panels", being one or more individual members assigned to hear the proceeding. If there is more than one member of the panel typically one will be appointed 'president'. The president's vote has no greater weight than that of other members, but they normally direct the procedural conduct of a hearing.
It is the practice of chairs to assume the authority to appoint specific members to specific hearings as they see fit, although this tends to be used mostly to take advantage of various member's expertise. Typically such appointments are delegated to a staff person on the basis of availability and geographic location.
As well, when assigning members to a panel, the Chair shall consider any requirement imposed by statute or regulation "that applies to the proceeding that the tribunal be representative of specific interests."[SPPA s.4.2(2)]. This can be the case with labour relations (union) panels, which often require participation by both union-side and management-side Board members.
A tribunal shall keep a "record" (ie. file) of all proceedings in which a hearing has been held, including [SPPA s.20]:
"Records" are of particular importance to facilitating the conduct of appeals or judicial reviews of Tribunal decisions, a subject discussed further in Ch.9: "Appeals and Judicial Reviews".
- the document by which the proceeding was commenced;
- notice of hearing;
- any interlocutory orders, decisions and reasons for decision (where reasons are given);
- all documentary evidence filed with the tribunal, except as use of such evidence is limited by statute (in which case presumably it should not have been admitted into evidence and should be returned as appropriate);
- the transcript, if any, of the oral evidence given at the hearing.
Case Note: Knight v. HRTO
In Knight v. HRTO (Div Ct, 2020) the Divisional Court considered the administrative duty of a tribunal under s.20 of the SPPA to supply their record to an appellate court (here on judicial review):
 This case has required a significant level of case management by Mr. Justice Corbett. Most recently, the applicant indicated that she was not satisfied that the record of proceedings prepared by the HRTO (about 1,500 pages) was complete or adequate. She has proposed supplementing that record with almost 5,000 pages of additional documentation contained in 86 bundles, organized more or less chronologically.
 In a lengthy case management endorsement of November 20, 2020, Corbett J. explained to Ms. Knight that there were only three bases on which she could persuade the court that materials not provided by the HRTO in its record of proceedings ought to be before the court on the application for judicial review. These three grounds are derived from well-established legal precedent known as the Keeprite principles, most recently confirmed by this Court in Canadian National Railway Company v. Teamsters Canada Rail Conference and Andrew Sims Q.C., 2019 ONSC 3644. The three factors are:
(a) the materials ought to have been included in the HRTO’s record of proceedings (i.e., that they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act);....
(b) although the materials are not part of the record, they are properly added to the record because of one of the narrow exceptions to the principle that the record before the Divisional Court is the official record from the tribunal below. The usual examples of materials that may be admissible on this basis are:
(i) to set out general background that would assist the court;
(ii) to show procedural defects that are not apparent from the record or the reasons – for example, a reasonable apprehension of bias or a denial of procedural fairness; or
(iii) to show a complete lack of evidence to support a material finding of fact, and
(c) materials that are properly “fresh evidence” on the application.
 At the heart of the applicant’s motion is s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, C.S. 22, as amended. Section 20 provides:
A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include, The applicant takes the position that the additional documents contained in the 86 bundles were all “evidence filed with the tribunal”. Thus, she relies upon the first ground of the Keeprite principles. The applicant does not rely on the second or third grounds under Keeprite.
(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;
(b) the notice of any hearing;
(c) any interlocutory orders made by the tribunal;
(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;
(e) the transcript, if any, of the oral evidence given at the hearing; and
(f) the decision of the tribunal and the reasons therefor, where reasons have been given.
 The applicant has misconstrued the meaning of the phrase “documentary evidence filed with the tribunal” used in s. 20(d) of the SPPA. During her oral submissions it became clear that, in the applicant’s view, anything that she sent to the registrar of the HTRO or to the Executive Chair of Social Justice Tribunals Ontario and the Executive Chair and Executive Lead of Tribunals Ontario fall within the term “documentary evidence filed with the tribunal”. This is an unreasonable and incorrect interpretation of s. 20(d).
 The key to a proper understanding of s. 20(d) is the word “evidence”. Sending documents to the registrar of the institution of the HRTO does not make those documents evidence in a hearing. Providing documents during the disclosure phase of the prehearing process does not make those documents evidence. Sending documents to the Executive Chair of Social Justice Tribunals Ontario and subsequently the Executive Chair and Executive Lead of Tribunals Ontario, in the context of complaints about the hearing vice chair, does not make those documents evidence in the hearing. Reference to a flash drive in the applicant’s “will say” statement submitted at the hearing does not make documents contained on the flash drive evidence.
7. Incapacity of Members
Tribunal decisions are often "reserved". This means that the member/s want some time to consider and write their decision after the evidence and submissions are completed. Occasionally, this creates possibilities for problems where the member dies, becomes sick, their term expires - or just gets behind in their workload. The SPPA deals with some of these situations.
Despite the expiration of the term of a member who has participated in a hearing for which no decision has yet been rendered, their terms is deemed to continue for the purpose of "participating in the decision and for no other purpose" [SPPA s.4.3]. As it is also a principle of law that only those who hear a case fully may decide it [audi alteram partem] (or at least was until Consolidated Bathurst above), the expiration (without reappointment) of the term of a member conducting a single-member hearing while evidence is still being taken, or while submissions are still being heard, may require the holding of a new hearing.
However, where the panel is comprised of more than one member - and unless the situation is dealt with specifically in another statute or regulation [SPPA s.4.4(2)] - where a member who has been hearing a proceeding becomes unable, for any reason - to continue hearing or deciding, the remaining members may complete the hearing and give a decision [SPPA 4.4(1)].