Consultation – what consultation?
The final version of new rules of practice for two health tribunals was posted on the tribunals’ website, while a so-called consultation this summer with stakeholders was still ongoing, raising suspicion that the consultation was a sham.
The discovery was made by Amy Wah, a longtime lawyer with the HIV & AIDS Legal Clinic Ontario, based in Toronto. Wah was finalizing her clinic’s submission to the tribunals on August 6, the last date to provide input, when she checked the websites of the Health Services Appeal and Review Board (HSARB) and Health Professions Appeal and Review Board (HPARB). She was shocked to discover that the new rules, supposedly the subject of the consultation, had already been finalized and posted.
While the tribunals took down the announcement containing the link to the new rules, they neglected to delete a PDF with the rules, which as been obtained by Tribunal Watch Ontario. The 35-page document says the new rules are effective September 1, 2025, and nowhere indicates that the document is a draft.
While it is common for a tribunal to circulate draft rule changes for comment by users of the tribunal, it is also common for the tribunal to wait to receive and consider comments before adopting the new rules.
In this instance, the apparent finalization of the rules before the deadline for submissions seems to make a mockery of the idea of consultation with stakeholders. Not only had the tribunals apparently predetermined what changes they wanted, but they did not send it out as a draft to people who would potentially want to participate in the consultation.
The HSARB and HPARB registrar put out a notice dated July 16, saying the plan was to update and amend their rules, which apply to both tribunals. The notice says that the tribunals “are seeking input and suggestions from key stakeholders” and that “submissions received will be considered during the drafting process.” However, it appears that drafting was finished before the deadline for submissions of August 6 that was specified in the notice.
With only three weeks to respond in the middle of summer, it would have been a scramble for stakeholders to meet the deadline. It’s safe to assume that whatever submissions were received were forwarded in the last days before the deadline, when the changes had apparently already been decided by the tribunals.
Wah told Tribunal Watch it would have been helpful, if the tribunals already knew what they had in mind, to provide a draft of those proposals to stakeholders. After seeing that the rules had already been finalized, she hastily added a footnote to her legal clinic’s submission noting that the rules had already been posted, and that “our comments were drafted without the benefit of seeing these rules; and of great concern, we note that the new rules were developed without consideration of comments from this consultation.”
The health tribunals’ so-called consultation has echoes of another consultation on rule changes, in the fall of 2024 by the Human Rights Tribunal of Ontario. The HRTO initially granted only a two-week deadline for submissions but later extended it by two weeks in the face of opposition by stakeholders to the short timeline.