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Focus: Emergency Measures for Administrative Tribunals – Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020

Introduction

Over the last two weeks, and in response to the challenges raised by the Coronavirus pandemic (COVID-19), Ontario has put into place two emergency measures addressing procedural and practice matters before administrative tribunals. On March 25, 2020, the Economic and Fiscal Update Act, 2020 received Royal Assent, after unanimously passing first, second, and third reading the same day. Schedule 3 of this Act created the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (HTPA), which gives a tribunal broad powers to make orders and directions it considers appropriate as it relates to the format and conduct of hearings, and other procedural matters.

More generally, effective March 16, 2020, an Order in Council (the “Order”), dated March 20, 2020, temporarily suspended all limitation periods and procedural timelines for the duration of the emergency. The Order was made pursuant to s 7.1(2) of the Emergency Management and Civil Protection Act, which authorizes the Lieutenant Governor in Council to make appropriate orders to facilitate providing assistance to victims of the emergency or to persons dealing with the emergency and its aftermath.

The HTPA

The HTPA gives tribunals broad and powerful mechanisms to control process, format, and conduct of proceedings. Pursuant to section 1 of the HTPA, it applies to hearings or other appearances, such as pre-hearing conferences or mediations, in a proceeding to which the Statutory Powers Procedure Act (SPPA) applies, or would apply if the application was not excluded under another Act, and any proceeding before a tribunal that may be specified by the regulations. It applies to proceedings commenced before, on, or after the day HTPA comes into force (s 5).

The HTPA also empowers a tribunal to make any order or direction it considers appropriate in the circumstances about the format or conduct of a hearing, and “any matters ancillary to the holding of a hearing,” such as the service of filing of materials, attendance at the hearing, recording the hearing, or public access (s 3(2)). With respect to the format of a hearing, s 3(1) of the HTPA sets out that a tribunal may conduct a hearing in person, in writing, electronically, or any combination of these.

Section 4(1) stipulates that, in the event of conflict, the HTPA has primacy over the SPPA, any other piece of legislation, and any rule made by a tribunal. Further, in the event of a conflict between an order or direction of a tribunal made pursuant to s 3 of the HTPA and any piece of legislation that applies to the tribunal or any rules made by the tribunal, the order or direction prevails.

Terms of the Order

In particular, the Order suspends any limitation period set out in any statute, regulation, rule, by-law or order of the Government of Ontario. This means that the normal time period in which applicants or plaintiffs have to commence a claim has been extended.

The Order further suspends “any period of time within which any step must be taken in a proceeding,” subject to the discretion of the court, tribunal or other decision-maker. On the face of this term, the Order includes any procedural step of a court or tribunal proceeding, including, for example, responding to actions or motions, filing appeals, deadlines for disclosure and witness statements.

Tribunal Response

On March 26, 2020, Social Justice Tribunals Ontario (SJTO), which includes the Human Rights Tribunal of Ontario (HRTO), Social Benefits Tribunal, and Landlord and Tenant Board, among others, issued a notice on its website in response to the Order. In particular, and with respect to limitation periods and procedural timelines, if parties to an ongoing matter, or parties contemplating submitting applications to a tribunal, “are not able to meet a timeline,” the SJTO will “allow them to do so at a later date.”  

This notice follows SJTO’s earlier announcement regarding changes to its services. On March 13, 2020, SJTO published a news release describing its new policy to postpone in-person hearings, instead opting to schedule written and telephone hearings where feasible. It indicated that those affected would be contacted via email. As of March 16, 2020, all in-person counter services were closed. The full news release from March 13 is available here.

The cumulative effect of these directions demonstrate the SJTO’s attempt to continue delivering services to the greatest extent possible, given the current circumstances. Notably, with respect to limitation periods and procedural timelines, the SJTO’s directions augment the expansive and unqualified time extensions set out in the Order. For legal representatives practicing before administrative tribunals in Ontario, it would be prudent to continue to meet limitation periods and timelines to the best of your ability, as we have yet to know how various tribunals will interpret “not able to meet a timeline.” For specific questions about timelines and the ability to meet them, it would be advisable to contact the Case Processing Officer assigned to your case for further direction.

ARCH will continue to monitor any new policies SJTO releases in response to COVID-19. We will also monitor the application of the HTPA and the Order and any complications that may arise from the introduction and application of same.



March 27, 2020

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