12.2 Tribunals vs Courts, Standing & General Tribunal Practice
Key Takeaways
- Tribunals are created by an enabling statute for a specific subject matter, unlike courts of general jurisdiction.
- SPPA s. 15 lets tribunals admit hearsay and other evidence inadmissible in court, subject to relevance and privilege.
- Standing as a party before a tribunal is generally defined by the enabling statute, not common law public-interest standing rules.
- The civil balance-of-probabilities standard applies before tribunals, and some regimes (e.g., the Human Rights Code) shift the burden to the respondent once a prima facie case is shown.
- The tribunal's record of proceeding — notices, exhibits, and rulings — is what a reviewing court examines on judicial review.
Every paralegal spends more time before administrative tribunals than in the Small Claims or Provincial Offences courtroom, so understanding how tribunals differ from courts — and what a tribunal expects from an advocate — is core, testable material. This section builds the general practice knowledge that later chapters apply to specific bodies like WSIAT, the Landlord and Tenant Board (LTB), and the Human Rights Tribunal of Ontario (HRTO).
Courts vs Administrative Tribunals
| Feature | Courts | Administrative Tribunals |
|---|---|---|
| Source of authority | General jurisdiction under the Courts of Justice Act and common law | Specific subject-matter jurisdiction created by an enabling statute |
| Decision-makers | Judges, legally trained and independently appointed | Members/adjudicators, often subject-matter experts; not always lawyers |
| Rules of evidence | Strict rules under the Evidence Act and common law | Relaxed under SPPA s. 15 — hearsay and other otherwise-inadmissible evidence may be admitted |
| Precedent | Bound by stare decisis | Own past decisions are persuasive, not binding, but should still be consistent |
| Cost awards | Costs routinely follow the event | Many tribunals cannot award costs absent vexatious or unreasonable conduct (SPPA s. 17.1) |
| Path to challenge | Appeal as of right is common | Appeal only if the enabling statute grants one; otherwise judicial review is the only route |
| Representation | Primarily lawyers | Licensed paralegals frequently permitted within their scope of practice |
The last row is the most exam-relevant: a large part of the P1 licensing scheme exists precisely because paralegals are authorized to represent parties before many of these tribunals, while courts of general jurisdiction (Superior Court, Divisional Court) remain outside a paralegal's scope, as the next section explains.
Standing: Who May Actually Be Heard
"Standing" asks whether a person has a sufficient legal interest to participate in a proceeding. Before most Ontario tribunals, standing as a full party is defined by the enabling statute rather than by common law rules for public-interest litigants: a landlord or tenant under the Residential Tenancies Act, an applicant and respondent under the Human Rights Code, or a worker and employer under the Workplace Safety and Insurance Act each have standing as of right because the statute names them. A person who is not a named party — a roommate, a union, an advocacy group — may still seek to participate as an intervenor or added party, but the tribunal has discretion to grant or refuse that status based on whether the outsider's interest is genuinely affected and whether their participation will help or complicate the proceeding. Paralegals should confirm a client's standing before drafting an application; naming the wrong respondent, or failing to add a necessary party, can delay or derail a hearing.
Burden of Proof Before Tribunals
The civil standard — balance of probabilities — governs virtually all Ontario administrative hearings, exactly as in civil court; there is no criminal "beyond a reasonable doubt" standard even where the consequences (losing a licence, being evicted) feel severe to the client. As a general default, the party asserting a claim or seeking a remedy carries the burden of proving it — an applicant tenant alleging illegal rent increases, or an applicant employee alleging discrimination. Some tribunals shift a specific burden to the respondent once the applicant establishes a threshold case: under the Human Rights Code, once an applicant shows a prima facie case of discrimination, the respondent bears the burden of establishing a defence such as a bona fide requirement. Knowing who carries the burden — and at what stage it shifts — is a recurring exam trap.
Building and Protecting the Record
Every SPPA-governed tribunal must compile a record of the proceeding: the application, notice of hearing, exhibits filed, intermediate rulings, and (where the hearing is recorded) the audio or transcript. This record matters for two practical reasons a paralegal must internalize. First, it is the evidentiary universe the tribunal can rely on — evidence discussed off the record or promised "later" and never filed generally cannot support a decision. Second, if the matter proceeds to judicial review (covered in the next section), the reviewing court examines only what was before the tribunal on the record; a paralegal who fails to get key evidence properly marked as an exhibit, or fails to request that a hearing be recorded, can permanently weaken a client's later options. Careful documentation practice — indexed exhibit books, a clear witness list filed before the hearing, and dated disclosure — is not just good client service; it is what preserves appeal and review rights.
General Tribunal Practice: What to Expect
Most Tribunals Ontario clusters (Social Justice Tribunals Ontario, Safety Licensing Appeals and Standards Tribunals Ontario) supplement the SPPA with their own Rules of Practice, which govern details the SPPA leaves open: disclosure deadlines before the hearing, the format for requesting an adjournment, accommodation requests, and pre-hearing or case-management conferences aimed at narrowing issues and encouraging settlement. A paralegal preparing for a hearing should always check the specific tribunal's current rules rather than assuming SPPA defaults apply unmodified — the SPPA is a floor, not a ceiling, and tribunal-specific rules routinely add stricter or more detailed requirements, such as a fixed number of days before the hearing by which documentary evidence must be exchanged.
Paralegal Scenario
A paralegal representing a small business respondent at the HRTO receives a disclosure package from the applicant the week before the hearing, well past the tribunal's rule-based deadline. The correct response is not to object generally that "tribunals don't follow the rules of evidence" — that misunderstands SPPA s. 15, which relaxes admissibility, not procedural deadlines. Instead, the paralegal should bring a preliminary motion citing the tribunal's own disclosure rule and ask the adjudicator to exclude the late evidence or grant an adjournment, preserving the objection on the record in case of a later review.
Which statement correctly distinguishes tribunals from courts on the rules of evidence?
Under Ontario administrative tribunal practice, how is standing as a party generally determined?
At the Human Rights Tribunal of Ontario, once an applicant establishes a prima facie case of discrimination, what happens to the burden of proof?
Why does the record of proceeding compiled under the SPPA matter to a paralegal handling a tribunal file?