Chapters 14 & 15

Tribunal Decision Making

Procedures and Grounds for
Appealing a Tribunal Decision
 Chapter 14 - Tribunal Decision
Making Procedures
Decisions by a tribunal
1. Basis for tribunal decision: A decision made by a tribunal
must be based on the evidence, legal arguments, and
issues presented by the parties (and be free of bias).
2. No jury: The tribunal makes both findings of fact and
findings of law.
3. Written decision: procedural fairness will often require that
a tribunal’s reasons for decision be in writing.
Tribunal decision may be released immediately or be reserved
1. Immediate decisions: A tribunal often reaches its decision
immediately after the hearing – though a tribunal decision is
sometimes “reserved”.
2. Reserved decisions: A reserved decision occurs when the
tribunal concludes that it needs more time to consider the
issues raised by the parties.
Where a tribunal application is decided by a
panel of decision-makers
1. Minimum level of consensus: there must be a
minimum level of consensus among the panel
members, as set out in the Tribunal governing statute.
2. Majority decisions for odd-numbered panels:
Decisions of the majority of panel members generally
reigns supreme where there is an odd number of panel
members.
3. Review the Tribunal governing statute: Always check
the tribunal’s enabling statute for what the panel rules
for a Tribunal are.
 What if there is an even number of
panel members and there is a tie?
Three possible solutions:
Solution #1 – in the case of a two-member
panel, the governing statute may require a
unanimous decision.
Solution #2 – the governing statute may
provide for a tie-breaking vote.
Solution #3 – if the first two solutions do not
apply, the hearing must be held again.
 Dissenting Opinions
1. Definition of a dissenting opinion: A
dissenting opinion is where a tribunal
adjudicator disagrees with the majority of
tribunal panel members and writes his own
reasons for decision expressing the
disagreement.
2. Enabling statute: Dissenting opinions are not
required to be issued to parties under most
tribunal enabling statutes.
3. Procedural fairness: The right of parties with
dissenting reasons has not been established as
part of the common law of procedural fairness.
 Basis for a Tribunal Decision
1. General rule: As a general rule, tribunal
adjudicators may base their decisions only on
information obtained during the hearing in the form
of evidence presented by the parties.
2. Exception #1: facts that may be accepted without
proof. Discuss three categories of such facts.
3. Exception #2: legal authorities found by the
adjudicator in the course of writing the decision,
can be considered on issues that were raised by the
parties – however, an adjudicator should not rely on
authority that raises a new issue without giving the
parties the opportunity to make submissions
 Orders and Remedies
1. Tribunal governing statute – always check the
governing statute for the Tribunal to see which
remedies the Tribunal can make.
2. Legal Costs – for example, in the absence of a
statutory authority, a tribunal may not award
costs.
3. Professional disciplinary proceedings – in
disciplinary proceedings, remedies may include:
a fine, a reprimand, suspension/revocation of an
individual’s licence, the imposition of restrictions
on an individual’s licence, etc.
Assistance in making the tribunal decision or
drafting the tribunal reasons for decision
1. The person who hears a tribunal case is the only person
who may decide it (and draft the reasons for decision).
2. Tribunal support staff: Clerical assistance may be sought
and received.
3. Tribunal counsel/Tribunal chair – these people can
provide the adjudicator with limited assistance in reaching
his decision/drafting his reasons BUT cannot pressure the
adjudicator to decide for or against a party. The ultimate
decision rests with the adjudicator.
4. Pritchard v. Ontario (Human Rights Commission) –
unless the enabling statute says otherwise, a regulator has
no duty to share legal advice received from a tribunal
counsel or a tribunal chair with the parties to the tribunal
proceeding.
 The common law requirement to give
reasons for decision
1. Baker v. Canada - where the outcome of the
tribunal decision will seriously affect the rights,
privileges or interests of an individual, procedural
fairness requires tribunals and other statutory-
decision makers to give written reasons for
decisions.
2. Regardless of whether there is a strict legal
requirement to do so, tribunal adjudicators
should give clear and understandable reasons
for the decision.
3. Let’s review EIGHT REASONS why a Tribunal
should give reasons for a decision on p. 308.
 Baker v Canada
Ideal Content of an Agency’s Written Reasons
for Decision
1. A listing of the specific issues addressed in the
case.
2. A summary of the evidence (including pointing
out which evidence was accepted by the
tribunal and which was rejected).
3. Findings of fact based on the evidence
considered relevant.
4. Statements of law, and any applicable
policies/guidelines that determined the
adjudicator’s decision.
 Dealing with delay, communication
of the decision
1. Nothing a party can really do to speed up the making and
release of a tribunal decision – if the delay becomes
intolerable, you can apply to a court for an order that the
tribunal produce an order immediately or by a certain date.
2. Communication of the decision – parties to a tribunal
proceeding have a right to receive the tribunal’s final decision
(and reasons for the decision) at the same time – and before
anyone else.
3. How does release of a decision work in a straightforward
Tribunal hearing? Let’s review the discussion on p. 310.
4. Reserved decisions involving matters of public interest –
subject to cost considerations, the tribunal may announce its
decision at a public meeting (as opposed to privately to only
the parties to the tribunal proceeding).
 Chapter 15 - Challenging decisions of tribunals and
administrative agencies

Question: Who may challenge a tribunal decision?

Answer: Any affected party; but usually the party or
person directly involved.
Common grounds for challenging agency decisions
Ground #1 –Agency acted outside its jurisdiction
1. Agency applied a law it had no authority to apply.
2. Agency gave a remedy it had no authority to
give.
3. Agency heard a matter it had no authority to
hear.
 Continued.
Ground #2 – the agency failed to take action is was
under a legal obligation to take.

Ground #3 – An improper delegation of authority.

Ground #4 – An improper exercise of discretionary

authority.

Ground #5 – the agency misinterpreted/misapplied the

applicable law.
 Grounds for appeal continued
Ground #6 – The agency acted in bad
faith (e.g., the adjudicator heard and
decided the case even though she had a
conflict of interest).
Ground #7 – The agency failed to follow
fair procedures (e.g., the agency failed to
grant a necessary adjournment).
 Review of Decisions Made by
Tribunals
1. Internal review: you must exercise this option
first if it exists, before applying to a court for a
review.
2. No automatic stay on internal review: there
is usually no automatic stay on a request for
internal review or reconsideration.
3. Stays must be requested separately when a
request for internal review has been made.
4. Avoidance of abuses of process: we should
not apply for stays unless the party has strong
grounds for review.
 Tribunal Power of Reconsideration
under the SPPA
1. SPPA authorizes tribunals to review their
own decisions if they consider it advisable
to do so and if they have made rules governing
the conduct of such reviews.
2. Internal Review Procedure (two-step
process)
Step 1: Is an internal review even merited? Has
the requestor presented a prima facie case?
Step 2: If so, what process should be followed to
determine the re-consideration?
 Court Appeals and Judicial
Review
1. For court appeals, and the grounds for such
appeals, consult the Tribunal governing statute.
2. Judicial review is available where there is no
statutory right of appeal.
3. Superior Court Courts have the inherent
authority to review department or agency
decision making to ensure they have not acted
outside of jurisdiction.
4. Privative clauses cannot prevent judicial review.
 Continued.
5. Grounds for judicial review
-Acting outside the powers provided by
statute.
-Failing to follow the requirements of the
statute.
-Following an unfair procedure.
 Standards of review applied by superior
courts in reviewing tribunal decision making
1. Correctness- this SOR is usually reserved
for determinations made outside the
tribunal’s governing statute and expertise.
2. Patent Unreasonableness – under this
SOR, the tribunal decision doesn’t have to
be “correct” as long as it is not “irrational”.
3. Reasonableness simpliciter – this is
now the the default SOR for Canadian
tribunals – central question to asked:
whether the agency’s interpretation of
the law or facts, or both, was reasonable.
SOR of Reasonable Simpliciter
Other Questions Considered in Deciding
whether a Tribunal’s Decision was
Reasonable:
1. Is there a logical connection between the
evidence that was heard and the legal
conclusions reached by the tribunal?
2. Does the decision fall within a range of
possible acceptable outcomes that are
defensible in relation to both the facts
and the law?
Factors used in determining the appropriate standard
of review

1. Expertise of tribunal?
2. Type of question being
appealed?
3. Privative clause?
4. Policy question?
5. Presence or absence of
statutory right of appeal.
 Stating a case
1. A Tribunal states a case by asking a
court to resolve an important point of
law that is being raised in a
proceeding before the tribunal.
2. This allows a tribunal to formulate a
legal question to ask a higher court at
any time during the hearing process.
3. A tribunal’s right to state a case
must be given in the tribunal enabling
statute.