Substitution (Hearing Member)

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Date Retrieved:	2024-04-30
CLNP Page ID:	2172
Page Categories:	[Hearing Process (LTB)]
Citation:	Substitution (Hearing Member), CLNP 2172, <https://rvt.link/4n>, retrieved on 2024-04-30
Editor:	Sharvey
Last Updated:	2023/03/03

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

4.3 If the term of office of a member of a tribunal who has participated in a hearing expires before a decision is given, the term shall be deemed to continue, but only for the purpose of participating in the decision and for no other purpose. 1997, c. 23, s. 13 (4).

4.4 (1) If a member of a tribunal who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision. 1994, c. 27, s. 56 (9).

(2) Subsection (1) does not apply if another Act or a regulation specifically deals with the issue of what takes place in the circumstances described in subsection (1). 1997, c. 23, s. 13 (5).

Sextant Capital Management Inc. et al., 2012 ONSEC 14 (CanLII)

[10] To understand the history of this matter leading to the Motion, the following sections of the SPPA must be borne in mind:

Expiry of term

4.3 If the term of office of a member of a tribunal who has participated in a hearing expires before a decision is given, the term shall be deemed to continue, but only for the purpose of participating in the decision and for no other purpose.

Incapacity of member

4.4(1) If a member of a tribunal who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision.

Audi Alteram Partem

[11] In International Woodworkers, Gonthier J., writing for the majority in the Supreme Court of Canada, concluded at para. 76:

I agree that, as a general rule, the members of a panel who actually participate in the decision must have heard all of the evidence as well as the arguments presented by the parties and in this respect I adopt Pratte J.'s words in Doyle v. Restrictive Trade Practices Commission, [1985 CanLII 5573 (FCA), [1985] 1 F.C. 362 (C.A.)], at pp. 368-369:

The important issue is whether the maxim "he who decides must hear" invoked by the applicant should be applied here.

This maxim expresses a well-known rule according to which, where a tribunal is responsible for hearing and deciding a case, only those members of the tribunal who heard the case may take part in the decision. It has sometimes been said that this rule is a corollary of the audi alteram partem rule. This is true to the extent a litigant is not truly "heard" unless he is heard by the person who will be deciding his case ... This having been said, it must be realized that the rule "he who decides must hear", important though it may be, is based on the legislator's supposed intentions. It therefore does not apply where this is expressly stated to be the case; nor does it apply where a review of all the provisions governing the activities of a tribunal leads to the conclusion that the legislator could not have intended them to apply. Where the rule does apply to a tribunal, finally, it requires that all members of the tribunal who take part in a decision must have heard the evidence and the representations of the parties in the manner in which the law requires that they be heard.

(International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 at para. 76 ("International Woodworkers"))

[12] Audi alteram partem and its relation to ss. 4.3 and 4.4(1) of the SPPA was considered by the Ontario Court of Appeal in Piller v. Assn. of Ontario Land Surveyors (2002), 2002 CanLII 44996 (ON CA), 160 O.A.C. 333 ("Piller"). At paras. 49 to 52 of Piller, Gilese J.A. found:

49. Section 2 of the SPPA requires a liberal construction of s. 4.3. It provides that:

This Act, and any rule made by a tribunal under section 25.1 shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

50. In addition, in determining the meaning to be given to the words "participating in the decision" as they appear in s. 4.3, the purpose of s. 4.3 is to be kept in mind. Like s. 26(11), its underlying purpose is to prevent a hearing from being disrupted by the expiry of a panel member's term of office. Many hearings take place over an extended period with lengthy adjournments or interruptions during which time a member's term of office may expire. The purpose of section 4.3 is frustrated if the expiry of a panel member's term of office during potentially lengthy preliminary proceedings were to require a new member to be appointed and the proceedings to start de novo. The deemed extension of a term is to enable the continued involvement and participation of a panel member seized of a matter that comes before the panel in which he or she is participating. It also meets the need for the expeditious and cost-effective determination of proceedings.

51. Section 4.3 states that if the term of office of a member of a tribunal expires "before a decision is given", that term shall be deemed to continue. On its plain wording, this could occur at anytime before a decision is given. The words "after the evidence has been heard" do not precede the words "before a decision is given" in s. 4.3 and, in my view, ought not to be read in as to do so is inconsistent with the purpose of s. 4.3 and the dictates of s. 2.

52. Procedural fairness precludes a tribunal member from participating in the making of a decision if the member has not fully heard the matter. In my view, the continuation of a tribunal member's term pursuant to s. 4.3 for the purpose of participating in the decision necessarily encompasses those activities required to meaningfully and lawfully participate in making the decision namely, participation in the completion of the hearing. For the sake of completeness, I note that hearing panel members may have other duties as, for example, attendance at Council meetings. The words in s. 4.3 limiting the extension of a tribunal member's term for the sole purpose of participating in the decision precludes the performance of such other duties by the member whose term has been extended by operation of s. 4.3. [Emphasis added]

[13] I conclude from Gilese J.A.'s statement in para. 52 of Piller, above, that the Legislature's intention in passing ss. 4.3 and 4.4(1) of the SPPA was to ensure that, where possible, the principle of audi alteram partem be recognized.

[14] Implicit in the Moving Parties' submissions is that the application of s. 4.4(1) of the SPPA to the facts of this case would result in my competency to preside at the Sanctions Hearing, were it not for the quorum requirements of s. 3(11) of the Act. I shall deal with the quorum issue later in these Reasons.