Administrative Tribunals: Procedural Flexibility

It has been said that administrative tribunals are like Cleopatra: age cannot wither them, nor stale their infinite variety.[1] This is certainly true of Canada. A variety of adjudicative bodies can be grouped under the heading of administrative tribunals, their procedures and structures vary significantly from province to province, and the regimes for appointment and reappointment of members are also highly variable. I considered the different types of adjudicative body in a previous post: in this one I focus on procedure.

That administrative tribunals perform different functions implies that the procedures used will vary. What suits an adversarial tribunal is less likely to work for an inquisitorial or regulatory tribunal and decidedly unlikely to facilitate the efforts of a mediative tribunal. Sure enough, Canadian courts have recognized that as a matter of common law the requirements of procedural fairness will vary from tribunal to tribunal, looser at the “executive end of the spectrum” where the “primary purpose is to develop, or supervise the implementation of, particular government policies” but tighter  at the “judicial end of the spectrum” where  the primary purpose “is to adjudicate disputes through some form of hearing”.[2]

Accordingly, whereas the demands of procedural fairness press heaviest on adversarial tribunals, others have more flexibility: an inquisitorial tribunal has significant autonomy as far as the order of presentation of evidence is concerned,[3] for instance, and the requirements in relation to reasonable apprehension of bias are more relaxed for sectoral representatives who serve on regulatory tribunals.[4]

Statute law also recognizes the variability of administrative tribunals. When one turns to statutory requirements, there is again significant variability. Evidently, each and every administrative tribunal might have particular provisions relating to procedure in its parent statute. However, even framework legislation designed to deliver a degree of uniformity leaves significant scope for deviation from prescribed statutory baselines; and, as one might expect in a federation, the frameworks themselves vary significantly from province to province. (Federally, there is no framework legislation at all, with federal administrative tribunals left entirely to their own devices.)

Let us start on the east coast, with Ontario’s Statutory Powers Procedure Act.[5] Section 3(1) establishes the scope of the SPPA, applicable to “a proceeding by a tribunal in the exercise of a statutory power of decision … where the tribunal is required … to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision”. The term tribunal is also defined by reference to the concept of a “statutory power of decision”. Whether “an opportunity for a hearing” is required is determined as a matter of common law. Accordingly, any administrative tribunal in Ontario that is required to hold a hearing is subject to the SPPA. The SPPA sets out a series of baseline requirements in respect of notice (s. 6), public hearings (s. 9), representation (s. 10), admissibility of evidence (s. 15), judicial notice (s. 16) and written decisions (s. 17). However, significant discretion is built into the SPPA, expressly and implicitly. Several provisions expressly contemplate the exercise of discretion by administrative tribunals on a case-by-case basis, in relation to adjournments (s. 21) and cross examination (s. 23(2)). Other provisions contemplate administrative tribunals making their own rules of procedure to provide for more flexible forms of hearing – in writing (s. 5.1) or electronically (s. 5.2) – and less rigid approaches to disclosure (s. 5.4), costs (s. 17.1) and reconsideration of a final decision (s. 21.2(1)). Put simply, the SPPA is a template but one that allows for significant modifications by administrative tribunals to suit their own purposes.

On the west coast there is an even more permissive statute in British Columbia, the Administrative Tribunals Act.[6] For the purposes of this statute, an administrative tribunal is simply “a tribunal to which some or all of the provisions of this Act are made applicable”.[7] Section 11 vests administrative tribunals with the discretion to “make rules respecting practice and procedure to facilitate the just and timely resolution of the matters before [them]”. The Administrative Tribunals Act also contains a power to make practice directives.[8] There is even a power to make powers: a tribunal may, “to facilitate the just and timely resolution of an application” make any order “in relation to any matter that the tribunal considers necessary for purposes of controlling its own proceedings”.[9] Admittedly, there are other more prescriptive provisions relating to matters such as the compulsion of witnesses and disclosure (s. 34), the examination of witnesses (s. 38) and adjournments (s. 39), but even here the provisions vest considerable discretion in the tribunal.[10] Again, there is significant scope for the tribunal to shape its procedures to its own ends.

Amongst the provinces, it is worth considering, lastly, the Act respecting administrative justice,[11] the framework statute for the civil law province of Quebec. In civilian style, the legislation begins by prescribing general principles.[12] First, procedural fairness: “The procedures leading to an individual decision to be made by the Administration, pursuant to norms or standards prescribed by law, in respect of a citizen shall be conducted in keeping with the duty to act fairly”.[13] Second, procedures and relevant information must be communicated clearly to the citizen.[14] Then, more specifically, the citizen has a right to be given notice of adverse decisions (s. 5), to disclosure (s. 6), to make representations (s. 7) and to written reasons (s. 8). And more specifically again, in respect of administrative tribunals, adjudication must be impartial (s. 9), involve a hearing (s. 10) including meaningful participation by the parties (s. 12) and be followed by written reasons (s. 13). However, the precise specification of the content of these rights is left to administrative tribunals, who are obliged to set out “simple and flexible rules devoid of formalism, with respect, prudence and promptness, in accordance with the norms and standards of ethics and discipline governing its agents and with the requirements of good faith”.[15] Although the template differs in Quebec – following the civilian style – the ultimate result is the same: administrative tribunals have significant autonomy and flexibility in shaping their procedures. They are, all over the country, “masters in their own house”.[16]

[1] Gerard Hogan, David Gwynn Morgan and Paul Daly, Administrative Law in Ireland (Roundhall, Dublin, 2019), at para. 6-10.

[2] Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 SCR 884, at para. 21.

[3] See e.g. Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 FCR 385.

[4] See e.g. Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623.

[5] RSO 1990, c S.22.

[6] SBC 2004, c 45.

[7] Ibid, s. 1.

[8] Ibid., s. 13. Some practice directives, in relation to time limits, must be made but the tribunal “is not bound by its practice directives in the exercise of its powers or the performance of its duties” (s. 12(2)).

[9] Ibid., s. 14(c).

[10] Ibid., ss. 34(3), 38(2), 39(2).

[11] CQLR c J-3.

[12] See France Houle, “A Brief Historical Account of the Reforms to the Administrative Justice System in the Province of Québec” (2009) 22 Can. J. Admin. L. & Prac. 47, at pp. 50-51.

[13] Ibid., s. 2.

[14] Ibid., s. 4.

[15] Ibid., s. 4(1).

[16] Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 SCR 560, at pp. 568-569.

This content has been updated on July 5, 2023 at 13:06.