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

Chapter 11 - Tribunal Rule-Making Authority:
Written and Electronic Hearings


  1. Overview
  2. Written Hearings
    (a) Overview
    (b) S.25.1 Rule-Making Authority (Written Hearings)
    (c) Notice of Hearing (Written hearings)
    (d) Default Proceedings (Written Hearings)
  3. Electronic Hearings
    (a) Overview (Electronic Hearings)
    (b) S.25.1 Rule-Making Authority (Electronic Hearings)
    (c) Notice of Hearing (Electronic hearings)
    (d) Default Proceedings (Electronic Hearings)
    (e) Control of Proceedings (Electronic Hearings)
  4. Openness of Proceedings: Written and Electronic Hearings
  5. Comment
------------------------------

1. Overview

By far, the majority of tribunal hearings in Ontario are conducted by way of oral hearing. Typical oral hearing conduct and procedure is discussed in Ch.4 "Hearings" under the general Statutory Powers Procedures Act (SPPA) rules (that discussion further references the Small Claims Court procedures for hearings, as oral hearing conduct is so similar to civil trial conduct).

However the SPPA also allows tribunals the right to conduct hearings in written and electronic (usually telephone) form [SPPA 25.1], simply by passing rules for just that purpose. In some circumstances these forms of hearing are useful but (as discussed below) in my opinion they carry a great potential for the degradation of natural justice when used as a means to achieve administrative "efficiency" or cost-cutting.


2. Written Hearings

(a) Overview

A "written hearing" is defined in the SPPA as one held "by means of the exchange of documents, whether in written form or by electronic means" (eg. e-mail).

(b) S.25.1 Rule-Making Authority (Written Hearings)

The SPPA creates authority for written hearings by tribunals if they make rules dealing with them [SPPA s.5.1(1), 25.1]. Such rules must be consistent with the following principles:
  • the tribunal must decline to hold a hearing in writing "if a party satisfies the tribunal that there is good reason for not doing so" [SPPA s.5.1(2)].

    The basis for such exceptions is not made any clearer than this, but logically might include illiteracy of a party, language problems - or, most commonly, the need for the tribunal to make in-person credibility findings, and for other parties to cross-examine witnesses. However where the issue is solely procedural, a party is not entitled to try to avoid a written hearing on this basis [SPPA s.5.1(2.1)].

  • all the parties are entitled to receive every document that the tribunal receives in the proceeding [SPPA s.5.1(3)].
Case Note:
In Riad v Health Professions Appeal and Review Board, 2012 ONSC 2728 (CanLII) the applicant initially laid a complaint against a psychiatrist, which the Board - considering the report of a complaint committee - ultimately dismissed. The issue on judicial review was not the merits of that dismissal but rather that of the tribunal's decision to hold a written hearing rather than an oral hearing. That application was dismissed when the court found that the applicant, despite a strong insistence on his right to an oral hearing, and an obvious desire to cross-examine the doctor, failed to advance any reasons for his insistence. His wanting to cross-examine the doctor (the classic reason for an oral hearing) was not sufficient reason in this case since such cross-examination before the Board was expressly prohibited by the Health Professions Procedural Code [s.33(2)(e)].
(c) Notice of Hearing (Written hearings)

A Notice of Hearing for a written hearing must include [SPPA s.6(4)]:
  • the date and purpose of the hearing, and details about the manner in which the hearing will be held (typically these are timelines for the exchange of documents);

  • a statement that a written hearing may be avoided if a party satisfies the tribunal "that there is good reason for not holding a written hearing (in which case the tribunal is required to hold it as an electronic or oral hearing) and an indication of the procedure to be followed for that purpose";

    As discussed immeditely above, you can expect this statement to be absent if the hearing relates only to procedural matters.

  • a statement that if the party notified does not participate in the hearing in accordance with the Notice - nor move to avoid a written hearing [as in (b) above] - then the tribunal may proceed without the party's participation and the party will not be entitled to any further notice in the proceeding.
(d) Default Proceedings (Written Hearings)

Failure of a party to participate in a written hearing for which Notice of Hearing has been given - or to move to avoid the written hearing for good reason [see (b) above], may result in the hearing proceeding without them, with the defaulting party receiving no further notices in the proceeding [SPPA s.7(2)]. This rule is similar to one applied in civil lawsuits when a party fails to file a Defence.


3. Electronic Hearings

(a) Overview (Electronic Hearings)

An "electronic hearing" is defined in the SPPA as one held "by conference telephone or some other form of electronic technology allowing persons to hear one another". The most common of course are telephone hearings.

(b) S.25.1 Rule-Making Authority (Electronic Hearings)

The SPPA gives tribunals authority to conduct electronic hearings if they make rules governing their conduct [SPPA s.5.2(1), 25.1]. Such rules must be consistent with the following principles:
  • the tribunal must decline to hold an electronic hearing "if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice" [SPPA s.5.2(2)].

    The basis for such an exception is not made clearer than that, but logically might include unavailability of adequate telephone services by a party, impaired hearing and/or speech, and the need for in-person credibility findings and cross-examination.

  • where the issue is procedural alone, a party is not entitled to try to avoid the electronic hearing [SPPA s.5.2(3)].

  • all the parties and the members of the tribunal participating in the hearing must be able to hear one another and any witnesses throughout the hearing [SPPA s.5.2(4)].
(c) Notice of Hearing (Electronic hearings)

A Notice of Hearing for an electronic hearing must include:
  • the time and purpose of the hearing, and details about the manner in which the hearing will be held;

  • a statement that the only purpose of the hearing is to deal with procedural matters, if that is so;

  • unless the electronic hearing deals with procedural matters only, a statement that an electronic hearing may be avoided if a party satisfies the tribunal that "holding the hearing as an electronic hearing is likely to cause the party significant prejudice, require the tribunal to hold the hearing as an oral hearing, and an indication of the procedure to be followed for that purpose";

  • a statement that if the party notified does not participate in the hearing in accordance with the Notice - nor move to avoid an electronic hearing [as in (b) above] - then the tribunal may proceed without the party's participation and the defaulting party will not be entitled to any further notice in the proceeding [SPPA s.6(5)].
(d) Default Proceedings (Electronic Hearings)

Failure of a party to participate in an electronic hearing for which Notice of Hearing has been given, or to move to avoid the electronic hearing as "likely to cause the party significant prejudice" [as in (b) above], may result in the hearing proceeding without them, and that party receiving no further notices in the proceeding [SPPA s.7(3)]. This is similar to default proceedings in civil lawsuits where a party fails to file a Defence.

(e) Control of Proceedings (Electronic Hearings)

Tribunals may make such orders and give such directions at an electronic hearing as it considers necessary "for the maintenance of order at the hearing" [SPPA s.9(2)].

On failure by any person (thus covering both parties and witnesses) to obey or comply with such orders or directions, the tribunal may call "for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose" [SPPA s.9(2)].


4. Openness of Proceedings: Written and Electronic Hearings

When a written hearing is to be held, the public is generally entitled to "reasonable access to the documents submitted" [SPPA s.9(1.1). When an electronic hearing is to be held, it shall generally be open to the public unless the tribunal is of the opinion that it is not practical to do so [SPPA s.9(1.2)].

A tribunal may also vary from these general openness rules if it is of the opinion that [SPPA s.9(1)(1.1)(1.2)]:
  • "matters involving public security may be disclosed", or

  • "intimate financial or personal [author: eg. medical] matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public".
The SPPA is silent on the use of electronic media in tribunal hearings, and general public access to tribunal files (it addresses this only re written hearings). If the issue arises, a party may wish to have regard for comparison to specific court rules which address these issues. These are discussed at this Isthatlegal.ca link:

Small Claims Court (Ontario): Ch.14, s.4: Trial: Trial Issues


5. Comment

Where, as is usually the case, a party has a need to call testimonial evidence to establish the credibility of their case, the use of written or telephone hearings in administrative proceedings can result in a serious degradation of natural justice. It is integral to the use of testimony in fact-finding that the adjudicator and all parties are able to view the demeanour and expression of witnesses first-hand, and to test their credibility by cross-examination.

Further, while written hearings are justifiable where solely legal issues are in dispute, it is my opinion that the holding of anything short of a full oral hearing in the important areas that modern administrative tribunals govern is a profound degradation of both the rights and the respect accorded parties that must, of necessity, have recourse to these administrative regimes (see that discussion in Ch.10, s.5 "Abuse of Process").

As a practical matter, the most predominant 'alternative' procedure that will be accorded to parties are electronic (read 'telephone') hearings. While convenient from the perspective of the tribunal members and counsel conducting them - ie. those who are culturally familiar with these processes, and while cost-saving (at least from the micro-economic perspective of the tribunal), these procedures take no account of the situation of the average administrative-litigant. That litigant, already starting from a position of unfamiliarity with the law and intimidation of legal process - is now channelled into an adjudication process that strips them of all sensory inputs respecting the process except one: voice. Further, even voice - that sole remaining sensory attachment to the process that they have - is degraded as the party struggles to identify just 'who is saying what'.

For all the respect and consideration these people are accorded they may as well be at the bottom of a well, arguing with faceless voices in the daylight above to grant them justice.
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