Hearing tribunals can make rules of procedure for parties to follow. While tribunals sometimes consult on changes to their rules, they alone have the authority to make them. Which raises the question, in what circumstances can a registrant challenge a rule?
Some guidance has been given in Mammarella v. Ontario College of Teachers, 2023 ONSC 6654, where a registrant challenged an amendment to a rule as being unreasonable. The amendment provided somewhat more stringent criteria for a party accessing records held by third parties. For example, the criteria would apply where a registrant, alleged to have engaged in sexual abuse, seeks to obtain production of the counselling records of a person making the assertion. The new rules attempted to address some of the misconceptions that sometimes have been applied to those reporting sexual abuse.
The Court dismissed the application for two reasons. First, the registrant had no standing to challenge the rules since they were not currently involved in proceedings. The fact that the registrant had previously faced discipline proceedings and could, potentially, face them in the future was insufficient. In terms of private interest standing, the Court said:
To have private interest standing, a person must have a personal and direct interest in the issue being litigated and must themselves be specifically affected by the issue. It is not enough that the person has a “sense of grievance” or will gain “the satisfaction of righting a wrong” or is “upholding a principle or winning a contest”.
In terms of public interest standing, the Court said:
We also do not grant the applicant public interest standing. This application for judicial review is not a reasonable and effective way to bring the issue before the courts, nor do the other factors favour granting standing
Second, even if standing had been granted, the Court did not find the rule change to be unreasonable. In fact, the rules were consistent with provisions employed in criminal matters and which had been upheld by the Supreme Court of Canada. Similar provisions exist for other professions.
In addition, the procedural requirements for a tribunal to make rules are not rigorous. In this case, formal reasons for the change need not be given by the tribunal. The rationale for the changes was clear from the materials.
Outside of the context of a specific situation where a rule of procedure results in unfairness to a specific registrant, it will be rare for a Court to consider the appropriateness of a rule of procedure.