In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion as to how proceedings before them are held.
Prior to the Act, a statutory tribunal could make rules governing the practice and procedure before it under section 25.1 of the Statutory Powers Procedure Act (or “SPPA”), including whether or not to hold electronic hearings (SPPA, s. 5.2). However, under the SPPA, a “hearing” is limited to the hearing in a proceeding. In contrast, under the Act, a “hearing” is much broader, and includes not only the hearing in a proceeding, but any other appearance in the course of the proceeding, including pre-hearing conferences or alternative dispute resolution processes.
The Act prevails over the SPPA, any rules previously made by a tribunal, or any other legislation, allowing administrative bodies (such as health colleges) to move their matters forward electronically regardless of whether they previously had anything in place in that regard. Under the Act, a tribunal may conduct a hearing in person, electronically, in writing or by a combination of any of them. Moreover, a tribunal may make any orders, give any directions, or make rules respecting the format of a hearing, and “any matters ancillary to the holding of the hearing”, including the service or filing of materials for the hearing, attendance at the hearing, recording of the hearing, or public access to the hearing.
Finally, the Act applies to retroactively, i.e. to proceedings that were commenced before the Act came into force.
Although the word “temporary” appears in the title of the legislation, the Act is not set to expire after a set amount of time, but is instead “to be repealed on proclamation of the Lieutenant Governor”. It will be interesting to see how long the Act will be in place for, and whether the SPPA will later be amended to permanently adopt the Act’s measures.
For now, we hope that the Act will enable health colleges to move matters forward in a fair and expeditious manner.