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Human Rights Law (Ontario) Law
(30 September 2009)

Chapter 7 - The Tribunal and its Powers

  1. Overview
  2. The Human Rights Tribunal of Ontario and its Structure
    (a) Overview
    (b) Members and Employees
    (c) Presiding Tribunals
  3. Tribunal Rule-Making Powers
    (a) Overview
    . Delegation of Procedural Rule-Making to the Tribunal
    . Tribunal Issued Rules and Related Documents
    . Fettering Discretion
    . Comment
    (b) Legitimate Rule-Making Authority
  4. Presiding Tribunal Procedural Discretion
    (a) Excusing Rule Non-Compliance
    (b) General and Specific Discretionary Powers
    (c) Liberal Interpretation Provisions
  5. Conflict Between Procedural Provisions
    (a) Overview
    (b) The Appropriate Hierarchy of Procedural Law
    (c) The SPPA Rule-Making Authorities and the Code
    (d) The Common Law and the Code
    (e) Plenary Legal Jurisdiction of the Tribunal
  6. Tribunal Complaint Policy

------------------------------


1. Overview

The Human Rights Tribunal of Ontario (the "Tribunal") has been given discretionary powers to a degree unprecedented amongst Ontario administrative tribunals, except perhaps by the Ontario Labour Relations Board (OLRB). This may reflect the historically-close relationship between employment and labour relations law (on the one hand), and human rights law (on the other), but for whatever reason it is a firmly established legal reality.

The breadth of these legal powers has several dimensions: broad procedural rule-making power, broad discretion to vary from the Rules, broad remedial discretion, and a broad policy mandate. Additionally it has a range of novel evidence-gathering authorities unknown to other adminstrative tribunals and a range of other unique, and even experimental powers. All of these aspects of the Human Rights Tribunal of Ontario are considered in this chapter.


2. The Human Rights Tribunal of Ontario and its Structure

(a) Overview

Under recent amendments to the Code, the Human Rights Tribunal of Ontario ("Tribunal") is legally continued from its establishment under the prior legislation [Code s.32(1)].

Although not legally distinct, a little-acknowledged practical distinction exists between any 'managing tribunal' and the various one or more member 'presiding tribunals' that hear individual applications - and the Human Rights Tribunal is no exception. Unlike courts, which have some limited administrative centralization in the chief justice (eg. scheduling, assignment of cases), tribunals additionally have openly-acknowledged and quite extensive policy and rule-making roles which center around the Chair and (usually) one or more small committees of members [Code s.33(1)].

This is a trend in law which can be traced back to the seminal Supreme Court of Canada case of International Woodworkers of America v Consolidated Bathurst (SCC, 1989). In that case the SCC (Wilson J writing) tolerated a post-hearing meeting of both presiding and non-presiding tribunal members conducted for the purpose of discussing the policy implications a particular pending ruling, despite counter-arguments that this violated the 'he who hears must decide' principle of natural justice.

Basically the court held that such post-hearing 'consultation' was acceptable as long as their was no formal influence on the decision of the presiding members, and was prepared to tolerate a lower degree of natural justice in administrative tribunals due to their "institutional constraints".

(b) Members and Employees

'Members' of the Tribunal are those charged with hearing and deciding applications (when sitting in an individual case, they are called "presiding tribunals"). They are political appointees of the executive government of the day, although formally they are appointed by the "Lieutenant Governor in Council" as a result of a "competitive process" amongst "candidates" decided in accordance with the following criteria [Code s.32(2,3)]:
  • experience, knowledge or training with respect to human
    rights law and issues;

  • aptitude for impartial adjudication; and

  • aptitude for applying the alternative adjudicative practices and
    procedures that may be set out in the Tribunal rules.
Note that these (new) Tribunal member appointment criteria start to apply to appointments as of 20 December 2006 [Code s.51].

In practice, advertisements are placed in legal and other publications, or circulated amongst the small community of adjudicators working in other tribunals - and people apply much like they would any other job. For those eventually favoured by the government further Official 'interviews' are conducted before a legislative committee and transcripts of them may usually be located with a google search on "hansard" and the name of the particular member. While these interviews can be an interesting read the res ult is almost invariably a foregone conclusion, determined by political domination of the committee by the party in power.

Terms of appointment (ie. duration), remuneration and expense allowance are set by the executive government of the day [Code s.32(4,5)]. Normally an appointment is specified as to duration when it is made.

A 'Chair'(person) shall, and one or more Vice-Chairs may, be appointed from amongst the members. One of the Vice-Chairs shall be appointed to be the "alternative chair" [Code s.32(6,7)], and they shall act as Chair in the event that the Chair is unable to act [Code s.32(8)].

The Tribunal can appoint employees under Part III of the Public Services Act of Ontario [Code s.32(9)], and these make up its administrative staff.

Members and employees are not compellable as witnesses in legal proceedings in relation to information obtained in the course of a proceeding before the Tribunal, though an exception can be made in the Rules allowing employees to be compelled (no Rules are yet made to allow this) [Code 32(11)].

(c) Presiding Tribunals

Members of a 'presiding tribunal' (called a panel) are appointed by the Chair on a case-by-case or regional basis. Panels are generally comprised of an odd number of members (ie. 1,3,5) [Code s.33(1)]. It can be otherwise but odd numbers are required to break ties. Where more than one member is sitting, one them will be designated the 'president', though their decision carries no greater weight than that of any other member [Code s.33(2)].

If an appointed panel cannot perform its powers and duties, the Chair may replace it (eg. recusals for conflict of interest, death or illness, expiry of term, etc) [Code s.33(3)].


3. Tribunal Rule-Making Powers

(a) Overview

. Delegation of Procedural Rule-Making to the Tribunal

As is the case with most of Ontario's major administrative law regimes, the substantive law of human rights is set out in a parent statute (here the Ontario Human Rights Code). However most other administrative tribunals find their day-to-day procedural rules located in Regulations, authorized in general terms by the parent statute and specifically created and passed into law by the executive government of the date (again, formally the Lieutenant-Governor in Council).

In contrast, the duty and right to make procedural rules under the Code lies with the very Tribunal that is to apply them. The range of this delegated authority, and the enthusiasm with which the Tribunal has taken it up, are unprecedented in both type and degree.

. Tribunal Issued Rules and Related Documents

In response to this broad mandate the Tribunal has created documents variously called: 'Rules', 'Policies', 'Practice Directions', 'Guides' and 'Information Bulletins' - many of which have significant functional overlap. Of these various forms, only one (Rules) are specifically authorized by the Code by that name [Code s.43(1)].

While the Tribunal ostensibly gives its Chair (through Rule 1.2) authority to "issue Practice Directions to provide further information about the Tribunal's practices or procedures", there is no Code jurisdictional authority for such publications and their legal effect is quite ambiguous. Documents like this - whatever their legal status - can (and do, to the suspiciously-minded like myself) have the practical effect of convincing parties that they are legitimate, thus allowing the Tribunal to
effectively l egislate where it has no legal authority to do so - a clear derogation from the primary role of the legislature in a democratic society. To those who think this is a counsel of paranoia, I recommend a review of the profoundly moribund history of Ontario's past human rights regimes and the role of past Commissions in that shame.

Further, while the Commission has been expressly given a 'policy' creation mandate, whereby policies "shall" be considered by the Tribunal if a party or intervenor so requests [Code ss.30 and 45.5], the Tribunal itself has been given no such mandate (nor has it allocated itself such in its Rules, however dubious that authority would be). Yet the Tribunal has already issued several publically available 'policies', which are accessible from the "Sources" link on the homepage to this Isthatlegal.ca Human Rights Law (Ontario) Legal Guide. It is a standard principle of statutory interpretation that when a law authorizes one thing specifically (ie. a grant of power to the Commission), it means to prohibit it generally to other legal entities (ie. the Tribunal).

Additional Tribunal-pubished documents such as Information Bulletins and Guides lack any jurisdictional authority whatsoever (even under the Rules) and are of even more dubious legal status, though in fairness to the Tribunal some of them can be innocuous and even useful.

Indeed, the Code has expressly enumerated the "procedures and practices" which the Tribunal "shall" follow when 'disposing' (the Code's term) of applications, and they are those "provided for in its rules or otherwise available to the Tribunal" [Code s.40]. While the authority to make and apply 'rules' [after public consultation: s.43(7)] is plain enough [Code s.43(1)], the phrase "otherwise available to the Tribunal" cannot - by any stretch of statutory interpretation - be read to authorize the several add itional forms of near-legislation (ie. information bulletins, policies, Guides and practice directions) that the Tribunal has created to codify the exercise of its Code-delegated discretion. Rather, the reference to "otherwise available" can be given obvious meaning when we take it to refer to the other common law and Statutory Powers Procedures Act (SPPA) procedural principles and rules that inform Ontario administrative law generally [see generally s.5 on the role of the SPPA].

. Fettering Discretion

The underlying problem with ancillary 'non-Rule' documents is that they can easily engage in what law calls the 'fettering' of discretion. 'Fettering' means the pre-determination of a particular use of discretion before being faced with particular case situations which call for the exercise of that discretion. Discretion is a form of delegated authority meant to give the delegate the freedom to apply it flexibly and fairly to individual case situations as they each arise before it. To set policies on how discretion should be exercised places the 'managing tribunal' in an effectively legislative role with respect to both the presiding members and the populace at large, and derogates from the authority of the individual presiding members who are the intended delegates of the authority.

. Comment

This widely unacknowledged reality accounts for much of the tension that exists today - widely across many administrative tribunals - between regular (non-management) presiding tribunal members and the more policy-oriented 'managing tribunal' (ie. the Chair and such committees as they appoint).

As past experience with the Human Rights Commission in Ontario has made glaringly clear, administration of a tribunal is a matter of critical importance to its effectiveness. Past Commission administration has effectively nullified the availability of the Code process from the citizenry at large for most of its history, in an almost pathological drive to summarily dismissal cases before they could be heard on their merits. Perhaps they were simply afraid of the day-to-day cut and thrust of litigation, or pe rhaps they feared the potential media-political fallout that individual cases could draw - but for whatever reason the productivity of the past Code system and adminstration was shamefully, almost comically, low.

Perhaps past Commissions, faced with a 'prosecution'-friendly civil standard of proof, were reticent to saddle respondents (often governments of their own stripe) with findings of 'racism' and 'sexism', labels akin to criminal conviction in terms of degree of public stigma.

The reasons for this past shame are unclear, what is however clear is that the more sedate, academic - and largely sterile - world of policy consideration has been much more suited to the comfort level of past Commission administrators.

If this inclination is continued under the newly-amended Code, the result will be the continuation of a travesty of justice and democracy that has existed for over 25 years in Ontario.

(b) Legitimate Rule-Making Authority

While the degree of procedural authority given the Tribunal is unusual in terms of delegated legislation, the Tribunal is nonetheless on solid ground when making "rules governing the practice and procedure before it" [Code s.43(1)], of both general and particular application [Code s.43(4)], as long as they are "consistent with" Part IV (Tribunal procedues) of the legislation [Code s.43(5)].

That said, and while the Code provides that any Rules made must have been the subject of public consultations, it does not specify with any greater details the nature, degree, quantity or breadth of such consultations [Code s.43(7)].

Additionally the Tribunal may legitimately make Rules which "provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial procedures" [Code s.43(2)].

Additionally [again, and as is referenced above in (a)], the "Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications" [Code s.40].

I will not here review the specific Rules made under this authority, as of course they are the subject of this entire Isthatlegal.ca Human Rights Law (Ontario) Legal Guide, and the numerous topics contained in its chapters.


4. Presiding Tribunal Procedural Discretion

(a) Excusing Rule Non-Compliance

Even within this small labyrinth of sometimes dubious and self-defined rule-type documents (ie. practice directions, information bulletins, policies, etc), the Code broadly excuses presiding Tribunals from non-compliance with its own (ie. the 'managing tribunal's') Rules, unless such non-compliance causes prejudice (unfair harm) to a party's case:
Code s.43(8)
Failure on the part of the Tribunal to comply with the practices
and procedures required by the rules or the exercise of a
discretion under the rules by the Tribunal in a particular manner
is not a ground for setting aside a decision of the Tribunal on an
application for judicial review or any other form of relief, unless
the failure or the exercise of a discretion caused a substantial
wrong which affected the final disposition of the matter.
And further:
Rule 5.1
A technical defect or irregularity is not a breach of these Rules. Where a party or other person fails to comply with these Rules, the Tribunal may relieve against the failure to comply, with or without terms, as the Tribunal considers appropriate in accordance with Rule 1.1.
Contained within Code s.43(8) is a form of 'privative clause'. These are further discussed in Ch.20: "Judicial Review".

I have no problem with granting this flexibility to presiding tribunals, as long as such discretion can be subject to accessible and robust appellate or judicial review examination when required. Sadly, this is not the case [see Ch.19: "Reconsiderations" and Ch.20: "Judicial Review"], a derogation from the principle of tribunal accountability that further emphasizes it's lack of effective governance.

(b) General and Specific Discretionary Powers

Additionally (sometimes very) broad procedural discretionary powers are located in the Rules themselves, the most broad being that:
Rule 5.2
The Tribunal may vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms as the Tribunal considers appropriate in accordance with Rule 1.1.
And additionally that:
Rule 1.5
The Tribunal may exercise any of its powers under these Rules at the request of a party or on its on initiative, except where the Rules provide otherwise.

Rule 1.6
The Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.

Rule 1.7
In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(s) make such further orders as are necessary to give effect to an order or direction under these Rules;

(t) attach terms or conditions to any order or direction;

(w) take any other action that the Tribunal determines is appropriate.
In brief, the Rules are merely guidelines, subject to variation at any time by any presiding Tribunal.

(c) Liberal Interpretation Provisions

Finally, as is common with Ontario's administrative tribunals generally, 'liberal interpretation' provisions in both the Code and the Rules round out the Tribunal's discretion over its own procedures:
Code s.41
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

- and -

Rule 1.1
These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.
Again, the result is that even the self-defined procedural Rules of the Tribunal are layered several times with additional case-by-case discretion as to their application, including some which can completely avoid the Rules themselves.


5. Conflict Between Procedural Provisions

(a) Overview

Unsurprisingly, the mashing together of legitimate procedural law (ie. the Rules) and this eclectic collection of Tribunal-issued procedural documentation can create confusion as to which governs, for they are not always consistent with one another. This is particularly the case where the Tribunal, for reasons of its own convenience or priorities, tries to bend the Code and the SPPA to its will, either through creating new authorities out of thin air, misinterpreting existing authority, or even ignoring it.

If and when such conflicts arise it is essential to have some basic understanding of the true legitimate legal hierarchy of these, and other, legal texts. I explore this next.

(b) The Appropriate Hierarchy of Procedural Law

I believe that there is an identifiable legal hierarchy amongst the various procedural laws and rules that exist, and I describe it here.

The first starting point is that the Code, unless otherwise specified, is subject to the general provisions of the Statutory Powers Procedures Act (SPPA), a generic Ontario statutemeant to set out minimum standards for our administrative tribunals:
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.
The SPPA is the main subject of my Isthatlegal.ca Administrative Law (Ontario) Legal Guide, linked below [it is important to note the primary distinction between the SPPA's 'general rules' and the 'rule-making authorities' set out in that Guide]:

Administrative Law (Ontario) Legal Guide

This offered exception has been taken up in the Code by the following provision:
Code
s.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.

s.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.
Basically then, the SPPA applies unless and until it conflicts with a (legitimate) Code (or Tribunal Rule) provision, at which point the Code-related provisions governs (it is trite law that the Rules must not conflict with the Code [Code s.43(5)]). Obviously then, the legitimacy of the Code and its subordinate procedural provisions is of primary importanc,e as it is only legitimate Code-related provisions that can lawfully trigger the Code s.42 override.

On this reasoning, only procedural provisions located within the Code itself and within its Rules can override the SPPA in the event of conflict. All other Tribunal-produced documents (ie. information bulletins, Guides, policies and Practice Directions) are overriden by the SPPA - if indeed they have any juridictional legitimacy at all [see s.3 above].

(c) The SPPA Rule-Making Authorities and the Code

The above conclusion [(b)] on the issue of legal paramountcy is sound with respect to general SPPA rules, however it can get complex in light of the SPPA's distinction between such 'general rules' and its 'rule-making authorities' (already alluded to above).

These SPPA 'rule-making authorities' are just that:
s.25.1
A tribunal may make rules governing the practice and procedure
before it.
Any administrative tribunal to which the SPPA applies (most of them, including the Human Rights Tribunal) has jurisdiction to make rules with respect to particular procedures [eg. written hearings [SPPA s.5.1(1)], electronic hearings [SPPA s.5.2(1)], costs [SPPA s.17.1]) simply by the unilateral act of making rules structuring the exercise of jurisdiction on those topics. In other words, the SPPA allows the procedures in such areas to be self-defined by the Tribunal, and the act of self-definition itself le gitimizes the Tribunal's jurisdiction in that area.

That said, a very real and unresolved legal issue arises with respect to conflict between these SPPA 'self-adopted' rules and the Code s.42 'paramountcy' provision cited above. That is: can the Tribunal legitimately adopt this SPPA-given rule-making jurisdiction in a manner that the SPPA does not condone?

On this question, note that it cannot be maintained that the Tribunal rules are ungoverned by the SPPA altogether, as the Code expressly countenances the Rules drawing upon SPPA authority:
Code s.43
The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:

...

(3) Without limiting the generality of subsection (1), the Tribunal rules may,

(a) provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial procedures;
To illustrate the potential for conflict, note how SPPA ss.5.1 (regarding written hearings) structures (and thus limits) the exercise of this rule-making authority in the following ways:
s.5.1(2)
The tribunal shall not hold a written hearing if a party satisfies the tribunal that there is good reason for not doing so.

s.5.1(2.1)
Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters.

s.5.1(3)
In a written hearing, all the parties are entitled to receive every document that the tribunal receives in the proceeding.
If the Ontario Human Rights Tribunal, through its Rules, tries to vary from or otherwise avoid these limiting conditions, does the Code s.42 paramountcy provision apply given that the rules are themselves SPPA s.25.1 generated? This issue to my knowledge is unresolved in law and it has great potential for uncertainty and jurisdictional confusion.

(d) The Common Law and the Code

As well of course, such SPPA-adopted Rules (and their exercise) are still theoretically governed by common law principles of fairness and natural justice, but the lack of robust and efficient appellate or judicial review availability [see Ch.19 "Reconsiderations" and Ch.20: "Judicial Review"] can render these essential limiting principles ineffectual against the inertial dominance of Tribunal practice and institutional mindset. There is no functional distinction between an ineffectual rule of law and an abolished one.

(e) Plenary Legal Jurisdiction of the Tribunal

Finally - against the argument that the Code and its ancillary Rules and other documents have procedural paramountcy - it can be noted that the Tribunal has 'plenary' (full) legal jurisdiction, which means that it is immune to no Canadian law, including any procedural laws and common law principles [Code s.39]:
s.39
The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.
This seemingly obvious provision is probably a result of the Tranchemontagne case [see Ch.4: "Discrimination"] and dispels doubts existing before that case that some tribunals were limited to consideration only of law contained in their parent statutes. It also supports to conclusion that the Human Rights Tribunal has jurisdiction to consider federal constitutional law [see Ch.13, s.2: "Pre-Hearing Procedures: Notice of Constitutional Question"] as it bears on both substantive and procedural Code law.


6. Tribunal Complaint Policy

The Tribunal has issued a policy regarding complaints, linked here for reference:

OHR Tribunal Public Complaints Policy

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