report2

THE LAW REFORM COMMISSION OF SASKATCHEWAN

CONSULTATION PAPER: A MODEL CODE OF PROCEDURE FOR ADMINISTRATIVE TRIBUNALS

May, 2003

TABLE OF CONTENTS

INTRODUCTION

The need for reform

The model code approach

What kind of model?

Implementing a model procedural code

THE MODEL PROCEDURAL CODE

1. Pre-Hearing Procedures

2. The Hearing

3. The Decision

SUMMARY OF RECOMMENDATIONS FOR DISCUSSION

APPENDIX: PRELIMINARY LIST OF SASKATCHEWAN TRIBUNALS

INTRODUCTION

Boards, commissions, and review panels have become an important part of the administration of justice in Saskatchewan. These "administrative tribunals" make decisions in a wide range of cases directly affecting Saskatchewan residents and businesses, from granting a business licence to adjudication of a complaint under the Saskatchewan Human Rights Code. At present, more than fifty tribunals are empowered to hold hearings and adjudicate individual cases involving disputes between citizens and government agencies.

This consultation paper discusses adoption of a model code of procedure for administrative tribunals. This is an approach that has been adopted or proposed in an increasing number of jurisdictions. The paper focuses the discussion by formulating a model code. However, the draft code is intended as a means to facilitate comment and discussion, not as a final product that the Commission asks readers to approve.

Many of the individuals who sit on administrative tribunals in Saskatchewan are not lawyers, and participants in tribunal proceeding are often not represented by lawyers. The paper has been made as non-technical as possible, to encourage participation of non-lawyers in the consultation.

The need for reform

Administrative tribunals are an alternative, on one hand, to discretionary decision-making by public officials, and on the other, to assigning disputes to the courts. As the Law Reform Commission of Canada observed, the system of administrative justice in Canada "takes its shape from pragmatic responses to emerging problems":

The selection of a non-departmental rather than a departmental body to regulate, or of an administrative tribunal rather than the courts to adjudicate, appears to have been influenced, more often than not, by the exigencies of the case and existing institutional precedents than by an overall plan (Law Reform Commission of Canada, Independent Administrative Agencies, 1980).

Questions can be asked about whether an administrative tribunal is the most appropriate choice in all cases in which this route has been chosen, and whether some matters left to the courts or ministerial decision would better be handed to administrative tribunals. But there is now general acceptance of the importance of administrative tribunals as part of a fair and efficient justice system. Tribunals are an attractive alternative because they separate decision making from political pressures and give participants procedural protections without the cost and delay recourse to the courts almost always involves. Tribunal members with the background and experience to deal with the specialized subject matter that comes before them are often better equipped to deal with the issues than the courts.

This consultation paper is not concerned with justification of the use of administrative tribunals, either in general or specific cases. It starts from the assumption that administrative tribunals will remain an important part of the justice system in Saskatchewan. The focus is instead on ensuring that tribunals function in an appropriate manner. Most commentators on administrative law identify two goals for the proper functioning of tribunals: Fairness and efficiency. Participants in proceedings before administrative tribunals should expect that they will be given an opportunity to be heard by unbiased decision-makers, and tribunals should adopt procedures that lead to informed decisions in as expeditious a manner as possible.

There is little evidence that Saskatchewan tribunals are not fair and efficient, at least most of the time and in most cases. But it has proved difficult, here as elsewhere, to ensure that uniformly high procedural standards are applied by all tribunals. Administrative tribunals are created by statute, and governed by the legislation that gives them their authority. But the legislative framework is uneven. Some enabling statutes contain detailed procedural rules designed to ensure fairness.Others, particularly those created when administrative law was less developed than at present, do not. Regulation of tribunals has been largely left to the courts. Judicial review of tribunal decisions has laid down some basic principles, the "rules of natural justice", which all tribunals must adhere to. But it is not always easy to identify procedures that will ensure that these principles are honoured in practice.

These problems are compounded by the differences between tribunals. Some, like Human Rights Tribunals established under the Human Rights Code, are presided over by professionals, and assisted by expert staff. Others are composed of lay persons with little background in the law. Similarly, the level of formality varies greatly. Some bodies are rarely attended by lawyers, give no written reasons for judgement, and have no formal rules to ensure procedural fairness. Others, like the Labour Relations Board, are hedged with procedural formalities and protections.

The federal Justice Department 's Proposal for an Administrative Hearings Powers and Procedure Act identified the need for procedural reform in terms that apply to Saskatchewan as well as the federal government:

What is the Problem?

There is currently no common procedural structure for federal administrative decision-making. Procedural directions in statute, where they are found at all, are vague. Agencies are required to develop procedures in an ad hoc manner.

The consequences of this approach are:

i) uncertainty, both within the agencies and outside, as to the extent of procedural rights;

ii) increased difficulty in accessing administrative justice;

iii) duplication of effort in the drafting, development and amendment of procedure;

iv) delay in the implementation of new programs;

v) direct and indirect costs resulting from that duplication, as well as from training costs;

vi) judicial challenges; and

vii) a failure to fully utilize the abilities of individuals who are not formally trained in procedures.

The legislation proposed by the federal Justice Department in 1996 is one of the most recent examples of growing recognition of the need to ensure that minimum standards are adhered to by all tribunals. Alberta adopted an Administrative Procedures Act in 1966, and Ontario enacted the Statutory Powers Procedure Act in 1971. The Law Reform Commission of Canada proposed procedural reform in a 1980 Working Paper , Independent Administrative Agencies. In 1991, the Uniform Law Conference of Canada issued a Model Administrative Procedure Code. The Alberta Law Reform Institute's 1999 report, Powers and Procedures for Administrative Tribunals also proposed a model code. In Ontario, a task force established by the Provincial Government in 1997 recommended supplementing the Statutory Powers Procedure Act with a code of procedural rules, and the British Columbia government initiated an "Administrative Justice Project" in 2001. Reform has also been initiated in other common law jurisdictions. The American Uniformity Commissioners has adopted a revised Model State Administrative Procedures Act. In 1991, the English Council of Tribunals drafted Model Rules of Procedure for Tribunals that are now in force in Britain.

The model code approach

Administrative law is a wide field, and the potential topics for law reform are correspondingly broad. The terms of reference of the British Columbia project provide some indication of the scope of the issues an open-ended inquiry into administrative law would have to consider:

1. Review the mandates of the province's administrative justice agencies to ensure they are relevant to a modern and efficient economy.

2. Make recommendations to government to eliminate overlapping jurisdictions, multiple proceedings, costs, delays and uncertain outcomes by evaluating dispute resolution institutions and mechanisms.

3. Make recommendations to government to streamline administrative procedures and reducing unnecessary overlap and duplication by examining substantive legal principles and practices with respect to standards of review for administrative agencies, including the use of privative clauses, evidentiary requirements and the grounds for and number and type of reviews and appeals.

4. Reassess government's role in the human rights area as an impartial adjudicator and advocate for complainants.

5. Introduce transparent policy guidelines for Cabinet and ministerial appointments to administrative agencies.

6. Create an informational data base on administrative agency reform in common law jurisdictions.

7. Define government's ongoing obligations to independent administrative agencies and establish a framework, process and guidelines for future institutional assessments.

8. Define government's ongoing obligations with respect to core competency and training programs for agency appointees.

9. Introduce performance measures and an accountability framework for administrative agencies, including recommendations for improving regional access to agency programs and services, where practicable.

All of these topics are worth consideration, but very few administrative law reform projects have attempted such a comprehensive approach. Most recent administrative law reform projects have focussed on a single product: A model procedural code for administrative agencies. Procedural codes address problems that are perceived to lie at the core of deficiencies in administrative adjudication.

Some Saskatchewan Tribunals have well-established procedural regimes and render decisions in a professional manner. Many smaller boards and tribunals are less professional, and suffer from a lack of clear guidance. A code, assuming it is flexible and realistic, would provide the needed guidance. We agree with the federal Justice Department that a code would make an important contribution if it is able to "provide a comprehensive and authoritative source of law for agencies, ensuring that they have the powers they need to effectively conduct hearings and accomplish their statutory mandates." The Alberta Law Reform Institute described the goal of its model code in similar terms:

The goal of the project was to develop a set of rules that dealt more comprehensively with the matters with which agencies must deal than does the existing Act , but that also allow for more flexibility and efficiency. . . . The application of these statutory rules and powers to a larger number of agencies, whether by direct application, as a set of minimal requirements or default rules, or as a set of optional rules from which agencies might develop their own rules, would result in increased simplicity, efficiency and visibility in the powers and procedures of administrative agencies in Alberta.

For many agencies, the primary practical need is education of non-professional, part-time board members. Both the Canadian Council of Tribunals and its provincial affiliate, the Saskatchewan Association of Administrative Tribunals are currently sponsoring educational programs for members. We believe that this is an important initiative. A model code is not an alternative to education. In fact, it is a valuable educational tool. A model code is not so much an exercise in law reform as an accessible guide to the basic requirements of procedural fairness and efficiency.

What kind of model?

The first efforts at administrative law reform in Canada were the Alberta Administrative Procedures Act (1966), and Ontario Statutory Powers Procedure Act (1971). These Acts amounted to partial procedural codes, though they had other purposes as well. Both Acts have been subjected to considerable criticism, by academic commentators, lawyers, and clients. For a time, the practical limitations of these Acts placed the whole notion of codification of administrative procedure in doubt. The problems included:

1. The procedural rules in the Acts were incomplete or deficient. In Alberta, for example, inadequate attention was given to the rules of natural justice, and no effort was made to incorporate new rules in the legislation to reflect increased emphasis on natural justice in judicial decisions made after 1966. As the Alberta Law Institute noted:

Many judicial decisions since 1966 have explained what tribunals must do, and what they may not do . . . Some of these judicial directions can be captured in standard rules that would help tribunals meet the requirements of natural justice. The APA [Administrative Procedures Act] contains only a handful of such rules. There have also been many developments and refinements in the way that tribunals can conduct their proceedings which can make them more effective and efficient. The existing APA does little to increase the efficiency or effectiveness of tribunal operation.

2. The legislation failed to identify an appropriate scope for a model set of procedures. The Alberta Act was applied only to tribunals listed in a schedule to the Act. At present, only 10 are included, and they are the tribunals that likely least need explicit statutory guidance. Ontario, on the other hand, attempted very broad coverage, applying some of its provisions even to "statutory decision makers" such as license issuers who conduct no hearings and receive no evidence apart from a standard application form. In the result, the procedural provisions in the Ontario Act were often of uncertain application or too general and vague to provide effective guidance.

3. Although the procedural rules in the Acts amount to a partial codification, they are not cast in the form of a code. This limits their accessibility, especially to non-professional tribunal members who are most in need of guidance. The Acts provided guidance to the courts when administrative decisions were appealed, but failure to implement procedural rules in the form of a code seriously compromised their practical impact at the decision-making level.

The model code prepared for the Uniform Law Conference by Yves Ouellette in 1991, met two of the criticisms of the administrative procedure statute approach: It was cast in the form of a code, and it incorporated the rules of natural justice in a more adequate fashion. However, in an effort to give it a wide application as possible, it remained rather general and vague. It has been described as "skeletal".

More recent codes have attempted to avoid the criticism levelled at the Uniform Code. There has been, in fact, considerable convergence of approach among the Alberta, federal, and even English model codes. Two fundamental ideas are reflected in the Alberta and federal codes:

1. They attempt to provide a comprehensive set of procedural provisions that are specific enough to make application as straightforward as possible. The Alberta Law Reform Institute describes its code in this manner:

The Code's provisions cover all aspects of the practice of adjudicative tribunals. To help tribunals locate provisions as they need them, we chose to organize the Code in the chronological order in which a proceeding progresses -- beginning with notice of the application . . . to the decision and reasons stage. A person who works through the provisions will find reflected in them a number of underlying themes. . . . The sources of these principles are diverse ---- tribunal and court decisions, the Charter of Rights, and academic articles and texts.

2. Earlier codes and statutes operated on the theory that "one size fits all". Both the Alberta and federal codes adopt an "opt-in" approach. The codes are intended to be applicable to all tribunals --- decision makers who receive evidence and issue decisions after hearings or their equivalent, but not to "statutory decision-makers" in the wider sense of the Ontario Statutory Powers Procedure Act. But some of the provisions in the code will not be necessary or workable for all tribunals, and some tribunals may have established procedures that are as fair and effective as those in the proposed codes. Each tribunal is expected to adopt a procedural code based on the model, but departing from it as required. This approach allows the code to contain specific guidance, while retaining flexibility.

We believe this approach would be most satisfactory in Saskatchewan. Although the model code presented here would likely be workable without modification in most tribunals, some, like the Labour Relations Board would have little need for it. The model code would be most useful for small, non-professional tribunals like municipal Development Appeals Boards. The code is designed to be adequate for the needs of such boards without modification, though it could no doubt be improved by adaption to fit the needs of individual tribunals.

Implementing a model procedural code

A model code of administrative procedure should contribute to fairness and efficiency by providing decision makers with clear, practical guidance. The legal status of the code is probably less important than accessibility. Very little in the code presented here conflicts with either the principles of administrative law laid down by the courts, or with the enabling legislation under which Saskatchewan tribunals are constituted. It is, rather, an attempt to give practical, concrete form to established rules. As a result, there are several ways in which the code might be implemented:

1. The code might be published by the Saskatchewan Department of Justice as an approved guide to administrative procedure, ideally with an accompanying commentary, but given no force in law. In this case, the code would serve an important educational function for tribunal members. In addition, most tribunals are authorized to adopt procedural rules. The code would be a model for tribunals that decide to formally establish their own procedural rules.

2. The code might be given force of law, but applied only to tribunals that elect to adopt it in whole or part. This would ensure that in case of any perceived conflict between the rules contained in the code and other legislation or court decisions, the code would govern. A few of the provisions of the model code presented here may conflict with enabling legislation. For example, the model code provides that a tribunal should be empowered to postpone a hearing "notwithstanding any provision to the contrary" to allow mediation, or on consent of the parties. This rule could only be included in the code if it is given the force of statute law.

3. The code might be given force of law, and applied to all tribunals unless they formally adopt their own procedural rules, or modify the code to meet their particular requirements. This would ensure that the minimum protections contained in the code would apply to all tribunals, and encourage tribunals to assess their procedures in light of the principles contained in the code.

We believe all three approaches have merit, and welcome comment on the question of implementation of a model code.

THE MODEL PROCEDURAL CODE

1. Pre-Hearing Procedures

Introduction

In many cases, no more is required of a tribunal prior to hearing than to set the hearing date and notify the parties. In other cases, however, steps taken by the tribunal on receipt of an application can have important consequences at the hearing and on the tribunal's ultimate decision. Both the fairness and efficiency of the tribunal may be affected by pre-hearing procedures and decisions. In general, pre-hearing communication between the tribunal, the parties, and other interested persons should ensure that participants understand their rights and responsibilities. Effective communication can avoid misunderstandings that lead to later delays. Pre-hearing communication is also an opportunity to inform parties of available alternatives, such as mediation or other forms of alternative dispute resolution (ADR), and to inform parties of the rules of procedure and evidence that will be applied by the tribunal.

It is important that the tribunal is aware of its pre-hearing responsibilities. For example, statute or the rules of natural justice may require identification and notification of potential parties or interveners other than the applicant. Similarly, the tribunal must also determine whether the application is properly before it. Procedures should be available to resolve questions of jurisdiction before a full hearing on the merits of an application, and in some cases pre-hearing conferences might contribute to both fairness and efficiency. Finally, some tribunals routinely conduct investigations prior to hearings, and most tribunals sometimes find it useful to gather background information in preparation for a hearing.

Many of the matters mentioned above are at least partly governed by statute. It is difficult in any event to specify a uniform set of pre-hearing procedural rules for all tribunals. However, a model code should assist tribunals in adopting appropriate pre-hearing procedures. The Alberta Law Reform Institute identified four matters that should be considered by all tribunals prior to hearing: (1) Acknowledgment of receipt of the application, and notification of other interested parties as may be required; (2) Whether a hearing is required; (3) Consideration of consolidation of related applications; (4) Whether a pre-hearing conference would be desirable; and (5) Investigation. This list of procedural steps would be applicable to most tribunals. The discussion below follows the Alberta Institute's approach, but places primary emphasis on communication and provision of information to the parties.

Acknowledgement and information

Some tribunals acknowledge receipt of an application only by setting a hearing date and notifying the applicant. For example, municipal Development Appeals Boards usually hold monthly meetings, and routinely set down applications for the next scheduled meeting. As a matter of practice, applicants usually inquire before making an application and are informed of meeting dates. In other cases, the number of potential participants and the complexity of issues will require consultation before a hearing date can be set. In all cases, it is desirable that tribunals routinely ensure that acknowledgement of an application is communicated to the applicant in a timely fashion.

The Alberta institute was satisfied to require only "acknowledgement" without specifying detail. However, one of the important functions of acknowledgement is the opportunity it affords to communicate with the applicant. Other codes, such as the English Council of Tribunals Model Rules, are more specific, requiring for example, that the acknowledgement or other notification include notification of any errors in the application, requests for additional necessary information, and information about the availability of ADR. It would be desirable to direct applicants' attention to these matters. How far codification should go is, nevertheless, a difficult question. Some tribunals may find it useful, for example, to provide all applicants with an information packet outlining the tribunal's function and procedure, but this may not be useful in all cases.

Recommendation for discussion 1.1: Acknowlegment of application and information

The tribunal should acknowledge receipt of an application in a timely fashion, and notify the applicant of

(1) the procedure for setting a hearing date if the date has not been set;

(2) any error in the application, and any additional information required by the tribunal;

(3) any other parties or interveners that may be included in the application;

(4) the availability of ADR or mediation; and

(5) any other information the tribunal believes to be appropriate.

Notification of other parties and participants

The rules of natural justice require that any person directly affected by administrative proceedings receive notice of the application and be given an opportunity to participate in the proceedings. In many cases, the statute governing a tribunal is silent or vague on this important matter. For example, the Meewasin Valley Authority Act appears to contemplate intervention of "aggrieved parties" other than the applicant, but does not define this class of persons. Some statutes, on the other hand, partly codify and extend the rules of natural justice. For example, the Planning and Development Act requires Development Appeals Boards to notify the owners of "adjacent property or property within a radius of 75 metres from the property in respect of which the appeal is made", and the Human Rights Code allows a Human Rights Tribunal to involve "any other person specified by a human rights tribunal".

Persons who are directly affected by the proceedings have a right to participate as parties. Statute may also grant or impose party status. The Human Rights Code provides that the parties to a complaint include the Human Rights Commission, the complainant, "any person named in the complaint who is alleged to have been dealt with contrary" to the Code, " any person named in the complaint who is alleged to have contravened" the Code, and any other party specified by the Human Rights Tribunal. The persons who must be notified under the Planning and Development Act also apparently have party status. Although Saskatchewan legislation is largely silent on the point, tribunals, like the courts, may permit interested parties who may make a contribution to the proceedings , but who are not "directly affected", to make submissions as interveners.

The tribunal obviously must identify potential parties prior to the hearing, and may be required to make a preliminary decision as to whether an interested person has party status or should be granted intervener status. The tribunal should also be authorized to determine the manner of involvement of interveners.

Initial notice of the application should go to potential parties and anyone else entitled to notice by statute. Additional parties or interveners may be added upon application.

Recommendation for discussion 1.2: Identification and notification of participants

1. The tribunal shall grant party status to

(1) all named parties;

(2) all persons who have participated in earlier proceedings;

(3) all persons whom the tribunal knows or reasonably believes are

entitled by statute to standing as parties in the proceedings;

(4) all other persons who will be directly affected by the proceedings, and in consequence entitled to party status;

(5) any other person who the tribunal is authorized by statute to add as a party.

2. The tribunal may grant intervener status, on such terms as the tribunal shall specify, to

(1) any person who qualifies as an intervener under statute or other provision of law;

(2) any person who is affected by the proceedings or who represents the public interest, and who, in the tribunal's opinion, can contribute to the proceedings.

3. The tribunal may grant status as a party or intervener prior to the hearing, but any person who has not been granted status may appear at the hearing and make application for status at that time

4. When a tribunal has received an application, timely notice that the application has been received shall be given to all persons who may be granted party status under recommendation 1.2.1, and any other person the tribunal, in its discretion, determines should be given notice.

5. Any person who applies for, or is given, status as a party or intervener is entitled to the acknowledgement and information set out in Recommendation 1.1.

6. The tribunal may appoint one or more of its members to determine who shall receive the notices required in recommendations 1.2 and 1.3, and to grant, prior to the hearing, status as a party or intervener under recommendation 1.3.3.

Setting the time for the hearing and notice of hearing

In most cases, the governing statute stipulates the time in which a hearing is to be held after receipt of an application, and the time when the notice must be given. In all other cases, the model code should require that the hearing be held in a reasonable time, and on reasonable notice.

At present, many tribunals must hold hearings within a stipulated time. For example, a Development Appeals Board must usually hold a hearing within 30 days of receipt of the application. While provisions such as this are designed to ensure timely decisions, they may impede administrative efficiency in some cases. For example, it may be desirable to postpone the hearing to allow mediation. Provision should be made to postpone a hearing on consent of the parties.

Recommendation for discussion 1.3: Setting the hearing date and notice of hearing

1. Except as provided in recommendation 1.3.2, or as otherwise required by statute, the tribunal shall hold a hearing within a reasonable time after receipt of an application.

2. Notwithstanding any provision to the contrary, a hearing may be postponed if the parties consent, and the tribunal believes it is in the interests of justice to do so.

3. Notice of hearing must be given to

(1) all parties and interveners,

(2) all persons who have applied for party or intervener status whose status has not been determined, and

(3) any other persons known to the tribunal who are directly affected by the proceedings and who have not been notified that the application has been made.

4. Notice of hearing must be reasonable, or as otherwise required by statute.

Decision not to hold a hearing on the merits

At present, in the absence of statutory authority to do so, a tribunal must hold a hearing even if it is convinced, on the basis of the material filed, that it lacks jurisdiction to rule on the matter. In practice, many tribunals advise applicants of presumed lack of jurisdiction, and suggest withdrawal of the application. Unfortunately, some tribunals appear to go one, impermissible, step further, and routinely refuse applications on the grounds of lack of jurisdiction without convening a hearing.

The jurisdiction of the tribunal may be a difficult legal question, which the parties have a right to address at a hearing. For example, the jurisdiction of the Meewasin Valley Authority to hear applications brought by property owners affected by a proposed development has been litigated in the Court of Appeal on at least three occasions. But in many cases, applicants are not represented by legal counsel, and are unaware of straightforward jurisdictional problems. For example, an applicant to a Development Appeals Board may seek relaxation of a zoning bylaw, unaware that the board has jurisdiction only when a building permit has been refused by the municipality. It would be desirable to create an efficient mechanism to allow tribunals to reject applications for lack of jurisdiction without a full hearing, while safeguarding the right of the applicant to have the jurisdictional issue determined without the cost and delay of an application to court.

The Alberta Institute recommended that before rejecting an application on the grounds of lack of jurisdiction, the tribunal "should notify the applicant of its concern with the application, and provide an opportunity to respond, in a manner (oral or written) as directed by the agency". While this would warn tribunals that they cannot reject an application without giving the applicant an opportunity to be heard, it would otherwise do little more than recognise the current practice of bringing a jurisdictional problem to an applicant's attention prior to the hearing. No procedural rule is required for this purpose. In many cases brought to our attention, applications have been dismissed on jurisdictional grounds after hearing lengthy evidence and argument on the merits of the application as well as the jurisdictional issues. The proposed Alberta rule would likely not prevent this problem:

A more satisfactory approach to jurisdictional problems would be to allow the tribunal to separate jurisdictional questions from issues of merit, and direct that a hearing confined to jurisdictional questions be held before requiring submissions on the merits of the application. Such a rule would make all tribunals aware that applications cannot be summarily dismissed on jurisdictional grounds. It would not impede informal pre-hearing resolution of a jurisdictional issue. But in cases in which there is a difficult jurisdictional issue, the parties' right to be heard would be protected while avoiding the need to make submissions on the merits which may prove to be unnecessary.

Other circumstances in which dismissal without holding a hearing, or without completing a hearing, might be justified have been identified. These include abuse of process, discontinuance or decision on consent of the parties, and re-routing to ADR. We do not believe that special rules are required to deal with these matters.

Recommendation for discussion 1.4: Hearing confined to jurisdictional issues

When a tribunal is of the opinion that it may lack jurisdiction to hear an application, or that the application contains some other fundamental defect, and the applicant does not consent to withdrawal of the application the tribunal may direct that the question of jurisdiction or other defect be heard and determined, and the application dismissed prior to a hearing of the application on its merits.

Other pre-hearing matters

In recent years, administrative tribunals in Canada and elsewhere have adopted some innovative approaches to dispute resolution that contribute to administrative efficiency. Saskatchewan has been slow to experiment with these initiatives, perhaps in part because tribunals have not been fully aware of them.

While courts typically make decisions only on the basis of evidence presented by the parties, some tribunals take a more proactive approach, conducting investigations on their own to assist in decision making. Many tribunals have access to the professional staff of regulatory agencies, or, like the Labour Relations Board, have a staff of their own, that can be used to gather evidence and background information. Board policy allows it to appoint an "investigating officer" who is authorized to "make any examination of records and any inquiries that the investigating officer considers necessary". The Human Rights Code gives the Human Rights Commission extensive powers to investigate complaints prior to appointment of a Human Rights Tribunal.

Canadian courts have held that tribunals are empowered to direct investigations on their own initiative so long as the results are disclosed to the parties. Exercise of this inherent authority might prove useful for tribunals that do not currently exercise it. A recent study found that 8 of 12 environmental tribunals surveyed engaged in their own fact-finding. However, Saskatchewan agencies were not among them. Explicit authorization to conduct investigations may be useful in the model code.

Saskatchewan tribunals have also been slow to adopt pre-hearing conferences as a way to narrow issues and encourage early disposition of disputes, and few Saskatchewan tribunals have experimented with diversion to mediation or other methods of alternative dispute resolution. The value of these approaches is now widely recognized. 9 of the 12 Canadian environmental tribunals surveyed have made provision for some form of ADR. While still the exception rather than the rule, some Saskatchewan tribunals, such as Human Rights Tribunals, have been given statutory authority to incorporate pre-hearing conferences and ADR into their procedures. Once again, there is likely no legal reason why all tribunals could not make use of these innovations.

The Alberta Institute, following the lead of American model codes, has recommended another tool to promote administrative efficiency: Consolidation of hearings with related subject matter, both when the hearings are before a single tribunal, and when hearings before two tribunals would ordinarily be required. For example, a proposed development in the City of Saskatoon might lead to appeals to both the Meewasin Valley Authority Appeals Board and the municipal Development Appeals Board.

It can be presumed that any tribunal that sees value in innovations such as ADR or pre-hearing conferences will obtain advice to design an appropriate procedural system. The role of a model code is to facilitate new approaches, by providing clear authorization for their use, and by bringing them to the attention of tribunals. Our recommendation is designed for these purposes.

Recommendation for discussion 1.5: Other pre-hearing matters

1. A tribunal may direct, on consent of the parties, that a pre-hearing conference be held.

2. A tribunal may, on consent of the parties, divert an application to mediation or other alternative dispute resolution (ADR) mechanism it deems appropriate, and may make a decision in conformity with the outcome of the mediation or ADR without holding a hearing.

3. A tribunal is authorized to direct any informal enquiry or investigation or otherwise gather information relating to an application in order to determine whether to conduct a hearing, or for consideration at a hearing.

4. When two or more cases are pending before a tribunal involve the same or similar questions of fact or law, the tribunal may, on consent of the parties, order that the proceedings be combined in whole or in part.

5. When more than one tribunal has jurisdiction over the same or a similar matter, a joint hearing may be conducted on consent of the parties and the tribunals.

2. The Hearing

Introduction

A primary goal of a model code is to ensure that fairness and administrative efficiency are reflected in the conduct of hearings. Because the structure and functions of tribunals vary widely, a single, rigid procedural code for conduct of hearings would be neither practical nor useful. The requirements of the Labour Relations Board, with its relatively formal proceedings, are quite different than those of municipal Development Appeals Boards, where board members rarely have legal training and applicants are often not represented by legal counsel.

Ideally, each tribunal should establish its own procedures for conduct of hearings. Some tribunals are authorized by statute to do so, but all boards should be encouraged to do so. The model code should provide a basic set of default rules. While it must necessarily establish only minimum requirements, it should be detailed enough to provide real guidance, particularly for smaller boards that do not have legal expertise or professional staff. The most important topics for inclusion in the code relate to witnesses, evidence, and the role of parties. Ensuring procedural fairness should be the first consideration, but the rules should also recognise that the informality preferred by many tribunals contributes to efficiency.

Most tribunals hold public hearings at which oral submissions are made in the presence of all participants. Our model code is designed on the assumption that this format will remain typical. However, there are exceptions to this format. For some tribunals, the question of whether all hearings should be public is an issue. In addition, there is increasing interest in innovative approaches, such as exchange of written submissions and electronic hearings, which can expedite decision making in the interests of both tribunals and participants. While these approaches should likely be encouraged, they raise new issues in regard to public access and protection of the right of the parties and interveners to participate fully in the proceedings. The code should address these matters.

Adopting procedural rules

Some tribunals are expressly authorized to make rules governing their own procedure. The Meewasin Valley Authority Act, for example, confers a general power on the Appeals Board to "adopt general rules and rules of procedure to be followed in carrying out its duties". The Labour Relations Board and Human Rights Tribunals have more explicit and elaborated rule-making powers. Most smaller boards do not have a statutory authority to adopt procedural rules, but no doubt have implicit authority to so within the limits set by the rules of natural justice and the statutes governing them.

In many cases, adoption of the model code should be the first step toward establishing an adequate set of procedural rules, but tribunals that do not now have procedural codes should be encouraged to modify and elaborate the model code. Obviously, any modification of the code must respect the rules of natural justice and the statute that created the tribunal. Although this proposition does not need to be expressed in the code to give it effect, it would be desirable to include it as guidance to tribunals who wish to adopt their own procedural rules.

However, neither the model code nor other procedural rules adopted by a tribunal should be a straight jacket. Proceedings before administrative tribunals should be flexible. For that reason, we agree with the Alberta Institute that it would be desirable to expressly provide authority to adopt or modify rules to meet the special circumstances of specific cases.

Recommendation for discussion 2.1: Adoption of procedural rules

1. A tribunal has, subject to the rules of natural justice and the statute governing the tribunal, the power to control its own proceedings.

2. A tribunal may adopt rules of procedure of general application in addition to or in substitution for the rules contained in this code, subject to statute, and the rules of natural justice.

3. Notwithstanding that it has adopted procedures of general application, a tribunal may adopt particular procedures for a given case, or vary existing procedures for a given case.

The hearing panel: Quorum

Smaller tribunals such as the Meewasin Valley Authority Appeals Board and municipal Development Appeals Boards hear applications before the full board of tribunal members. It is important that a proper quorum of board members are present at the hearing. The Interpretation Act provides the basic rules for determining what constitutes a quorum:

18. (2) Where a board is established by or pursuant to an enactment:

(a) if the number of members of the board is a fixed number, at least

one-half of the number of members is a quorum at a meeting of the board;

(b) if the number of members of the board is not a fixed number, at least

one-half of the number of members in office is a quorum at a meeting of

the board;

minimum and a maximum, at least one-half of the number of members in

office is a quorum, but only if at least the minimum number of members is in

office;

(d) an act or thing done by a majority of members of the board present at a

meeting of the board, if the members present are a quorum, is deemed to

have been done by the board;

(e) a vacancy in the membership of the board does not invalidate the

constitution of the board or impair the right of the members to act, if the

number of members in office is not less than a quorum.

(3) In subsection (2), "board" means a board, commission or other body, whether

incorporated or not, consisting of three or more members

There is no need to repeat or supplement these rules in the code, but it would be useful to draw attention to them by reference.

Larger tribunals such as the Labour Relations Board may hold hearings before panels constituted with less than the full number of board members. Some codes of administrative procedure set out rules for constituting panels. We are of the opinion that there is no need to do so. The tribunals that may find a panel system useful are usually those authorized to do so by statute, and are also those that require least guidance from a model code.

Recommendation for discussion 2.2: Quorum

Unless otherwise provided by statute, a tribunal may hold a hearing before a quorum of members of the tribunal as defined in the Interpretation Act, and when one or more tribunal members cannot complete the hearing, the hearing may be completed by the remaining members so long as a quorum remains.

Conduct of the hearing: The form of the hearing and access to proceedings

Most Saskatchewan tribunals hold public hearings at which oral and written submissions are presented to the tribunal in the presence of the participants. General requirements governing participation of the parties and interveners will be discussed in the next section. Here, we are concerned with two matters: Public access, and adoption of alternative forms of hearing such as electronic hearings and exchange of written submissions.

Public hearings are required by statute in many cases. The statutory rule applies to tribunals as diverse in function as Human Rights Tribunals and Development Appeals Boards. However, it would appear that some smaller tribunals do not always respect the public access requirement, likely because they are unaware it exists. For that reason, it would be useful to include the rule that hearings must be public.

When the statute and regulations creating the tribunal does not require public hearings, it is open to a tribunal to exclude the public. The Alberta Institute noted that there are circumstances in which exclusion of the public would be justified, and recommended that

The Code should provide that a hearing should be open to the public, except where any of the following factors outweigh the desirability of holding the hearing in public:

. matters involving public security would be disclosed

. there is a possibility of danger to life, liberty or security of a person

. intimate financial or personal matters would be disclosed.

While we agree that some hearings should not be open to the general public, we do not believe it would be appropriate to encourage tribunals to hold hearings in camera unless they are authorized to do so by statute. Tribunals entitled to hold hearings in camera that adopt the code would be free to modify the code if a need to exclude the public from some or all hearings is recognized.

There is growing interest in the potential to use electronic communications, including tele-conferencing, fax and email, to conduct hearings at which all of the participants are not physically present. These innovations build on earlier experience with exchange of written submissions in place of conventional hearings. It is likely that these approaches are presently available to any tribunal on consent of the parties, though many tribunals are likely unsure of their authority to experiment with them. The code might facilitate electronic and written hearings by expressly permitting them. We are not presently convinced, however, by the Alberta Institute's recommendation that such hearings should be permitted even when all participants do not consent.

The most difficult problems in designing alternatives has to do with ensuring that parties and interveners can participate in a full, meaningful manner, and that the process remains open to the public in all cases in which public hearings are required. There are no doubt a variety of ways in which these problems could be solved. It would, however, be premature to formalize procedures, given the novelty of electronic hearings and the rapid evolution of electronic communication. We have concluded, therefore, that the code should do no more than set the general requirement that full participation and public access must be preserved.

Recommendation for discussion 2.3: The form of the hearing and access to proceedings

1. Unless otherwise provided by statute, hearings shall be open to the public and advertised in a reasonable manner.

2. Except as provided in recommendation 2.3.3, parties and interveners are entitled to made written or oral submissions at the hearing, and to be present throughout the hearing.

3. A tribunal may, on consent of the parties and interveners, hold written, electronic, oral or mixed hearings, but in such cases, access of the parties and interveners to all submissions, replies, and evidence during the course of the hearing must be ensured, and if the tribunal is required to hold a public hearing, public access to such materials must be made available prior to release of the tribunal's written decision and reasons.

Conduct of the hearing: The role of participants

Saskatchewan tribunals conduct hearings with varying degrees of formality. Proceedings before a Human Rights Tribunal, for example, may be relatively court-like, and the Human Rights Code confers powers on tribunals to adopt much of the formal paraphernalia of the courts. On the other hand, informality is the hall mark of many tribunals, particularly smaller agencies such as Development Appeals Boards. But in general, a tribunal is not a court, and fairness can be ensured without adopting the strict adversarial regime typical of the courts. To do so would in fact impede the efficiency of tribunals like Development Appeals Boards without adding substantially to the protection of the rights of participants.

The model code should provide a relatively informal default regime, applicable without modification to smaller tribunals that lack legal expertise. It should do no more nor less than direct the tribunal and participants to the basic requirements of fairness. Thus, rather than setting out detailed rules, it should direct tribunals to the fundamental right of participants to be heard. The recommendation below follows the proposal made by the Alberta Institute.

The Alberta institute did, however, address some particulars. Experience in Saskatchewan also suggests that these matters should be included in the code. Non-professional board members are often uncertain about such matters as disclosure, questioning of witnesses, and the right of participants to representation. .

Recommendation for discussion 2.4: The role of participants

1. The Chair, or other member designated by the tribunal members present at a hearing, shall preside over the hearing.

2. Parties must be given a fair opportunity to present a case at a hearing, and to know and respond to the case they are to meet, including any representations of other participants.

3. A party has the right to self-representation, or to be represented by legal counsel or other advocate.

4. The participation rights of interveners are at the discretion of the tribunal.

5. The tribunal may order the exchange of document between parties or interveners, the filing or exchange of witness statements, or experts' reports and qualifications, the exchange of medical examinations, and the provision of particulars.

6. Recommendation 2.4 is subject to the provisions of any statute or regulation governing procedure before the tribunal.

Evidence

It is a well-established principle that administrative tribunals may receive all relevant evidence, even if it would not be admissible in a court of law. In particular, exclusionary rules of evidence such as the hearsay rule, and the technical rules governing admission of documents into evidence, do not ordinarily apply. The only clearly established exception to this rule appears to a prohibition on reception of privileged information. This is an important exception that should be retained, but there are few communications that are privileged in law. For example, statements made by a client to his or her lawyer are privileged because the administration of justice requires protection of the solicitor-client relationship. Other examples of privilege have been created by statute, and would in any event over-ride a general procedural code.

It has been suggested that tribunals should apply formal rules if failure to do so would be unfair. The Alberta Institute attempted to incorporate this rule by providing that a tribunal "is not bound by the formal rules of evidence to the extent that deviation from these rules would not cause unfairness to the participants". This formula implies that the tribunal should be aware of the exclusionary rules, and determine applicability on a case by case basis. In our opinion, this is inappropriate. The fundamental requirement imposed by the courts is fairness to the parties. It may be that in some cases, second hand information of dubious value (technically hearsay) should not be admitted by a tribunal, but this is a consequence of the unfairness of allowing the evidence to become part of the tribunal's deliberations, not because it breaches a formal rule of evidence.

Statutory provisions relating to admission of evidence by tribunals usually follow the principles set out above. For example, the Human Rights Code provides that a Human Rights Tribunal may

30(2) . . . may receive and accept any evidence and information on oath,

affidavit or otherwise that in its discretion it considers appropriate, whether

admissible as evidence in a court of law or not . . . .

Most tribunals, however, are given little or no statutory guidance in regard to evidence. Tribunal members who are not lawyers are often bemused by the rules of evidence, and uncertain whether they apply to proceedings before their agency.

Some administrative codes include other, more specialized rules of evidence, such as rules relating to admission of copies of documents and taking judicial notice of matters within the knowledge of tribunal members, but we believe the general rule is clear enough to make them unnecessary.

The Alberta Institute also considered whether an optional rule allowing tribunals to order production of documents would be appropriate. While such a power might be useful, or even essential, for some tribunals, we believe this is a matter better left to legislation and policy-making by individual boards. The Labour Relations Board, for example, has adopted a policy directive that permits an investigating officer designated by the board to "compel any person to provide information or produce records and things that may be relevant to a matter before the Board, after providing the parties an opportunity to make representations". Similarly, the Human Rights Code gives the Human Rights Commission extensive powers to compel production of evidence and of search and seizure. These powers are appropriate for these agencies. Development Appeals Boards, on the other hand, typically deal with requests by applicants for relaxation of bylaws. It would be difficult to imagine a case in which such a tribunal would be justified in compelling disclosure.

There is, however, one other special provision recommended by the Alberta Institute that may be valuable. Tribunals may consult with staff or experts, and as noted above, some may direct investigations. Even a tribunal such as a Development Appeal Board with no staff of its own may seek technical information from the municipal planning department. Some tribunals appear to consult routinely without giving any attention to be propriety of doing so, and others are uncertain about their right to consult or obtain technical assistance. The courts have held that tribunals are entitled to consult, so long as the information they obtain is disclosed to the parties. The Alberta recommendation, which we have adopted in substance, gives formal recognition to this principle.

Recommendation for discussion 2.5: Evidence

1. A tribunal may admit any evidence that it considers relevant to the issues before it if it would not be unfair to a party to admit the evidence, and the tribunal is not bound by the formal rules of evidence.

2. Notwithstanding recommendation 2.5.1, a tribunal shall not admit evidence that is privileged.

3. A tribunal, or any member of a tribunal, may consult with other members of the tribunal, with staff of the agency or with any other person having technical or special knowledge, if when such consultation occurs at any stage in the proceedings, including the drafting of the decision, any new facts, evidence, or legal issues arise which are likely to affect the decision of the tribunal, the participants are apprised of the information, and given an opportunity to make submissions.

Witnesses

In a hearing before a Development Appeals Board, the board usually relies on submissions made by the applicant and the municipal agency that refused the applicant's request for a building permit. Other witnesses are rarely required. A hearing before a Human Rights Tribunal, on the other hand, usually hears testimony from a number of witnesses, who are examined and cross-examined by legal counsel. Handling witnesses does not present problems for tribunals that routinely receive evidence in that way, but members of small boards are often uncertain whether parties should be allowed to call witnesses, whether witnesses should be cross-examined, whether the board should question witnesses, and whether evidence should be given under oath.

The code should address these issues. Although the recommendations set out below would not be out of place for any tribunal, they are designed primarily to meet the needs of tribunals that do not ordinarily receive significant evidence from witnesses. The emphasis is on simplicity, and avoids re-creation of the party-driven adversarial system of the courts. Tribunals which require a more formal, judicialized style of proceedings can be expected to adopt their own rules, as have Human Rights Tribunals. The Alberta Institute "strongly rejected the suggestion that there should be a universal right to call and examine witnesses, present evidence, and cross-examine witnesses". We agree. Note also that since informal rules of evidence are applied by tribunals, much that could be presented in court only through testimony of witnesses can be received through the submissions of the parties.

In some respects, we would go further than the Institute in avoiding adversarial procedures. Thus, while it may often be fair and appropriate to permit cross-examination when a witness is permitted to testify, we do not agree with the Institute that cross-examination should automatically be a right when evidence is received from a witness. A tribunal may allow a witness to testify to provide information that cannot otherwise be easily presented, or to collaborate and explain other evidence. Because the purposes of the testimony in such cases is limited, it will often be appropriate for the tribunal itself to take a leading role in eliciting information from the witness. While cross-examination and reply might be allowed, or even clearly required in the interests of fairness, in some cases, we do not believe it is always necessary.

The Alberta Institute also recommended that testimony should be given under oath or affirmation, and that written witness statements should be by affidavit. However, the institute noted that this recommendation was "contentious", and that some contributors to the institute's code project "felt strongly that whether evidence is to be sworn should be discretionary, as some agencies may wish to preserve the informality of proceedings". We agree with this dissenting opinion. Some tribunals may not even have a Commissioner of Oaths available to swear witnesses. We also note that even the Human Rights Code merely allows Human Rights Tribunals to administer oaths and affirmations, without making the practice mandatory.

A somewhat different issue is whether tribunals should have the power to compel attendance of witnesses. In some administrative codes, this authority is routine. However, we do not believe it is appropriate for all tribunals. It is, in our opinion, an exceptional power that should be authorized by statute. The Human Rights Code, for example, gives Human Rights Tribunals the powers of Commissioners under the Public Inquires Act, which includes the power to summon and subpoena witnesses.

Recommendation for discussion 2.6: Witnesses

1. If a tribunal believes the testimony of a witness would contribute materially to resolution of the issues before it, or is otherwise required in the interests of fairness, the tribunal may permit the parties to call and examine witnesses, cross-examine witnesses called by other parties, or submit witness statements in writing.

2. Members of a tribunal may ask any questions of witnesses and participants and their representatives which are reasonably necessary to disclose fully and fairly all matters relevant to the issues in the proceeding.

3. A tribunal may require that a witness give testimony under oath or affirmation, but unless the tribunal so directs, no oath or affirmation shall be required.

4. A tribunal may require a witness statement or other written evidence to be by affidavit, or in such other form as the tribunal may direct.

Record of hearing

A tribunal should keep a sufficient record of its proceedings to serve the needs of the parties on appeal. The record required for this purpose includes copies of applications and notices, submissions, and exhibits. It will not ordinarily include a transcript of the proceedings, which few tribunals are equipped to prepare, but statute may require otherwise. For example, the Human Rights Code requires Human Rights Tribunals to keep a record of oral testimony.

The record-keeping requirement is set out in some detail in the statutes governing many tribunals. For example, the Meewasin Valley Authority Act provides that:

Unless otherwise ordered by the appeal board, all maps, plans, drawings and written material, or copies thereof, filed with or transmitted to the appeal board . . . are to be retained by the appeal board as part of its permanent records, but, pending the hearing of the appeal, the appeal board shall make all such material available for inspection to any interested person or participating party.

On the other hand, some tribunals are subject to no statutory record requirement, or do not have the content of the record spelled out in statute. For example, apart from requiring a transcript of oral testimony to be part of the record, the Human Rights Code merely provides that when the decision of a tribunal is appealed, the tribunal

shall immediately file, in the office of the local registrar of the Court of Queen's Bench, the record of the proceedings before it in which the decision or order appealed from was made.

It would be appropriate to set out both the requirement to keep a record of proceedings and the minimal contents of the record in the code.

Statutes governing tribunals may also be silent on access to the records of hearing by participants and the public. While most tribunals will afford access, and access might be obtained under freedom of information legislation in any event, it would be desirable to clarify the right of access.

Recommendation for discussion 2.7: Record of hearing

1. A tribunal shall compile a record of any proceeding in which a hearing is held.

2. In addition to any material required by statute, the record shall include

(1) the document by which the proceeding was commenced;

(2) all notices and acknowledgements;

(3) any order or other written decisions made in the course of proceedings;

(4) documentary evidence, any transcript of oral evidence or any video or audio recording made by the agency; and

(5) the decision or order of the tribunal, and the written reasons for the decision.

3. A tribunal shall make the record available for inspection by any interested person, participant, or party.

3. The Decision

Introduction

The rules of natural justice extend to the manner in which the decision of a tribunal is made and communicated. In particular, no final decision should be made without giving the participants an opportunity to be heard, and the participants are entitled to reasons for the decision. Saskatchewan courts have held that even in the absence of a statutory requirement, tribunals are generally required to render written decisions. Fairness also requires that decisions be delivered in a timely fashion.

The model code provisions relating to decisions should have two principal goals. First, it should clearly establish the basic requirements of fairness outlined above. Second, the code should clarify certain matters which may not be obvious to all tribunals, such as the power to make interim orders and correct errors.

Decision and reasons in writing

Although many Saskatchewan tribunals are required to render decisions in writing, fewer are presently required to give reasons for their decisions. Thus for example, the Planning and Development Act merely states that decisions of a Development Appeals Board must be in writing, while the Meewasin Valley Authority Act states that decisions of the Appeal Board must be "rendered in writing . . . setting forth the reasons for the decision".

The courts have not required that, in the absence of a statutory rule, tribunals must invariably issue decisions in writing, or that a decision must include reasons. It can be argued that participants should be entitled to a formal, written decision, and that fairness requires that participants be made aware of the reasons for decision. The Alberta Institute concluded that it is not unreasonable to insist on written reasons in all cases. The institute observed:

We considered the argument that reasons are sometimes routine or trite, and a formal requirement can involve expense or delay without significantly advancing participants' rights. However, we rejected this view on the basis that the extent of reasons can reflect the complexity of the issue.

The strongest argument against requiring written decisions and reasons for decision in all cases is that such a rule undermines the informality typical of many tribunals. In some cases, the decision is a simple yes or no, which will be recorded in minutes of the tribunal even if not formally issued. The reasons for decision may be obvious after the hearing. We are the opinion that this is an issue that requires further discussion. Nevertheless, we have included, for purposes of discussion, a requirement similar to the Alberta proposal that a written decision, including reasons for decision, should be the default rule.

Recommendation for discussion 3.1: Decision and reasons in writing

1. The final decision of a tribunal must be rendered in writing, and include reasons for decision.

2. When a tribunal has rendered its decision, it shall notify the participants of the decision, and make available to them copies of the written decision and reasons.

3. Except as otherwise provide by statute or regulations, the written decisions and reasons rendered by a tribunal shall be available for public inspection.

Timely decisions

Considerations of both fairness and efficiency require that decisions should be rendered in a reasonable time. It is difficult, of course, to set out absolute time limits. The complexity of the issues before the tribunal and its caseload are variable factors. In addition, the needs of the participants also vary: Some matters are more pressing than others. However, we do not agree with the Alberta Institute that mandatory timelines are inappropriate in codes of administrative procedure. The Institute concluded that "the timeliness of decisions is an administrative matter which should be the responsibility of the agency chair". We do not agree. While the chair should have responsibility to ensure that the tribunal is operating efficiently, we believe all tribunals should recognise a basic obligation to render decisions in a timely fashion. Timely decision making is a fundamental right of the participants, not merely an "administrative matter". While it may not be practical in a code of general application to set explicit guidelines, the code should as a minimum establish the obligation to render timely decisions.

In fact, most Saskatchewan tribunals are required to make decisions within time frames set out in statute. In addition, participants have recourse to the courts by way of mandamus to compel a tribunal to render a decision. If the code does no more than reiterate the obligation placed on tribunals, it will nevertheless be worthwhile.

Recommendation for discussion 3.2: Timely decisions

A tribunal shall render its decision in a timely fashion, and not later than the time required, if any, by statute or regulations.

Decision by Majority

Tribunals are usually governed by majority rule. However, legislation sometimes modifies this principle. For example, the Planning and Development Act states that

A decision of the majority of the members of the [Development Appeals] board present and constituting a quorum is a decision of the board, but in the case of a tie vote, the vote is deemed to be a negative vote.

The Meewasin Valley Authority Act sets out a slightly different formula:

A decision concurred in by a majority of the members of the appeal board is

the decision of the appeal board and, in the event of a tie, the chairperson or, in his

or her absence, the acting chairperson has a casting vote.

Despite these variations, we are of the opinion that it would be desirable to include the majority rule in the code. It has come to our attention that some smaller tribunals have been uncertain whether decisions must be concurred in by a simple majority or require unanimity. Consideration might be given to adopting a uniform rule in regard to tie votes.

We are also aware that some tribunals are uncertain whether dissenting opinions should be included in reasons for decision when all members of the tribunal do not agree. Most often, the problem has arisen because a board member wishes to record his or her dissent. In our view, it would be appropriate to adopt as the default rule confirmation of the right of a tribunal member to insist on including a dissent in the tribunal's reasons for decision. A more difficult question is whether dissenting reasons should always be included when a tribunal is not unanimous. Some administrative codes make such a requirement. At present, we do not believe such a requirement is necessary.

Recommendation for discussion 3.3: Decision by Majority

1. Except as otherwise required by statute, a decision of the majority of the members of a tribunal participating in a hearing is a decision of the tribunal.

2. When a tribunal member who dissents from the decision of the majority so requests, the reasons for the dissent shall be included in the reasons for decision rendered by the tribunal.

Correction of errors

Tribunals have an inherent jurisdiction to correct clerical errors in their decisions. In a few cases, this authority is made explicit by statute. Thus, for example, the Labour Relations Board may "at any time correct any clerical error in any order or decision made by the board or any officer or agent of the board". It would be useful to confirm the authority of all tribunals to correct errors.

Recommendation for discussion 3.4: Correction of errors

A tribunal may correct clerical or typographical errors or errors of calculation in a decision of the tribunal within a reasonable time after the decision has been rendered.

Interim orders

Authority to make interim orders is within the inherent jurisdiction of tribunals. The scope of this jurisdiction has been reviewed by the courts. We agree with the Alberta Institute that it would be desirable to set out the authority to make interim orders as a guide to tribunals.

The Institute's proposal merely confirms the authority to make interim orders without providing further guidance. We are not convinced that this is adequate. The principle of fairness should apply to all stages of a proceeding, including the granting of interim orders. Thus in some cases in which the interim order might be seriously prejudicial to a participant, the courts have held that participants have a right to be heard before an interim order is granted.

On the other hand, an interim order is not a final order. Even if an interim order is made, the participants will have an opportunity to be heard before a final order is made. Interim orders are justified before the full hearing has been completed only to prevent harm. For example, a human rights tribunal might seek interim prohibition of the activities that are the subject matter of a complaint pending completion of a hearing, particularly if the final decision may be delayed. Obviously, the purpose of an interim order is compromised if it can only be made after what amounts to a full hearing.

There are few situations coming before Saskatchewan tribunals that require action to impose an interim ruling immediately upon application. In these cases, a special rule, ideally contained in the enabling legislation establishing the tribunal, should be required. We are not prepared to recommend that the default rules in the model code should endorse the making of interim orders prior to commencement of a hearing.

When an interim order is made during a hearing, we believe the default rule should allow the participants to make submissions in regard to the proposed order before issuing it, but the tribunal should not be required to hear additional evidence, or, in effect conduct a "hearing within a hearing". Finding the right balance between fairness and efficiency in this context is difficult. While the default rule we have proposed will likely be workable for most tribunals, it may require modification to meet the needs of some tribunals.

Recommendation for discussion 3.5: Interim orders

1. Tribunals are authorized to make interim orders at any time during a hearing.

2. No interim order shall be made without giving participants an opportunity to be heard in regard to the subject matter of the order.

3. A tribunal may

(a) impose conditions on the grant of an interim order; and

(b) vary the interim order by the final order.

SUMMARY OF RECOMMENDATIONS FOR DISCUSSION

Pre-Hearing Procedures

1.1 Acknowlegment of application and information

The tribunal should acknowledge receipt of an application in a timely fashion, and notify the applicant of

(1) the procedure for setting a hearing date if the date has not been set;

(2) any error in the application, and any additional information required by the tribunal;

(3) any other parties or interveners that may be included in the application;

(4) the availability of ADR or mediation; and

(5) any information the tribunal believes to be appropriate

1.2 Identification and notification of participants