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Regulating Decision Making
Bryan G. Embree
Bryan G. Embree
Bryan joined Cobb & Jones LLP in 2005 and practiced law in the areas of civil litigation, including corporate and commercial litigation, employment law and administrative law, and matrimonial litigation from 2005 - 2010.

A major feature of modern society is the complexity of government with its multitude of bureaucracies engaged in facilitating some goal of the State. As you can imagine, it would be impossible for Parliament to manage each program or regulation created by it. Instead, there are acts of Parliament that delegate power to a Minister of government, an official of government, a provincial or federal cabinet and most commonly to a regulatory agency, to govern some program or enact a regulation created by parliament. These various entities make decisions about the operation of state programs and agencies (e.g., Canada Pension Plan, Workplace Safety, Nuclear Energy etc.) and are independent of the State. Each agency or regulatory Board is governed by an Act specific to it which is referred to as the "enabling legislation." That Act provides the legal authority for the agency to function in its specified capacity -- its authority is derived from the state through power delegated to it by the State.
Decision-making processes by regulatory agencies or Boards is controlled by statutory rules of procedure for decision-making. If it is a federal board, that board is subject to the Federal Courts Act and the Federal Court Rules defining procedures for decision-making. If it is provincial in Ontario, it is the Statutory Powers and Procedures Act (SPPA) that regulates decision-making. The SPPA does not, however, apply to all regulatory agencies in the exercise of their delegated powers, but applies in situations where the statute creating the regulatory agency requires a hearing before decisions are made. There are many such regulatory boards and agencies that require a hearing as part of decision-making process that are governed by the SPPA as to procedure.
There are other boards, however, for which hearings are not required as part of decision-making by the regulatory board or agency. In general, the more specialized the agency (e.g., Atomic Energy), the less likely that hearings are required as the decision makers must be experts in the area regulated. In these situations, it is unlikely that a court will or can interfere in any decision of the Board or agency and will "defer" to the expertise of the Board members. It is often the case that the enabling legislation for Boards of this type does not provide for appeals of decisions -- the decision of the Board is final.
As stated, however, there are many Boards and regulatory agencies in Ontario which enabling legislation requires hearings as part of its decision-making process. These Boards and agencies are governed by the Statutory Powers and Procedures Act that defines how decision-making processes must go. Principles of "natural justice" must be followed in decision making. For example, if a person or corporation is charged under the Environmental Protection Act, natural justice provides that the Pollution Control Board must give adequate notice of any charges, that the adjudicators hearing the matter must be unbiased and provide a fair and impartial hearing, and the party charged must have the right to counsel and the right to cross-examination of adverse witnesses.
The point of this information is to let you know that, despite the appearance that bureaucracies are unwieldy and out of control, and that there seems unfairness in decision-making processes, there is opportunity to challenge decisions in many cases through administrative law channels. This is a complicated area of the law and what has been discussed here is only the tip of the iceberg. Just know, however, that bureaucracies are responsible under the law to make fair and impartial decisions that affect your personal rights.

Bryan Embree is an associate at the law firm of Cobb & Jones LLP

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