Appeals

Request for Appeal Form

To appeal a decision, the person asking for the appeal (known as the appellant) must complete an online Request for Appeal form. If you encounter any difficulties accessing the form, please contact registrar@hrpa.ca.

Time to Submit the Request for Appeal Form

The appellant must submit the completed Request for Appeal form no later than 30 days from the date of the decision being appealed. There is no cost to file an appeal.

If more than 30 days have passed since a decision was made, a person may request an extension from the Chair of the Appeal Committee. To request an extension, a person must include a brief explanation of the circumstances that prevented the person from filing within the 30-day time frame. Extension requests must include a completed Request for Appeal form. Should the extension request be denied, the Appeal Committee will issue a written decision that outlines the reasons. Should the extension request be approved, the appeal will proceed through the normal process.

Appealable Decisions

Most decisions of the HRPA’s regulatory committees and many decisions of the Registrar may be appealed. Section 22.02 of the By-laws sets out a comprehensive list of appealable decisions. Those interested in submitting an appeal are strongly encouraged to review this list before submitting a Request for Appeal. For example, appealable decisions include decisions of the Experience Assessment Committee, the CHRE Review Committee, the Complaints Committee, the Capacity Committee, the Review Committee, the Registration Committee, and the Discipline Committee.

Parties to an Appeal

The parties to the appeal are the person requesting the appeal (appellant) and the person responding to the appeal (respondent). Generally, the HRPA is the respondent. For example, if a complainant appeals a decision of the Complaints Committee, the HRPA (not the registrant named in the complaint) is the respondent. Similarly, if a registrant appeals a decision of the Complaints Committee, the HRPA (not the complainant) is the respondent. In the case of an appeal by a registrant of a decision of the Experience Assessment Committee or the Registrar, the HRPA is the respondent. The committee that made the original decision is not a party to the appeal.

Legal Representation

Parties may wish to have a legal professional represent them in the appeal process, although this is not mandatory. Parties are responsible for their own legal costs; however, in the case of an appeal of a discipline decision, the Appeal Committee may require an unsuccessful registrant to pay some or all of the HRPA’s costs.

Initial Review by Appeal Committee Chair

The staff member supporting the Appeal Committee will acknowledge receipt of an appeal request after it has been received. The matter is then referred to the Chair of the Appeal Committee, who conducts an initial review of the appeal request to ensure the matter falls within the Appeal Committee’s jurisdiction. The Chair can:

• approve the appeal to move forward in the appeal process;
• strike a panel to determine whether the appeal falls within the Appeal Committee’s jurisdiction or whether there are sufficient grounds to appeal; or
• dismiss the appeal for untimeliness, if the appeal was filed more than 30 days from the date of the decision and an extension was not granted.

If it is determined that there are insufficient grounds for the appeal to proceed or the appeal is outside the jurisdiction of the Appeal Committee, a notice of intent to dismiss the appeal will be sent to both parties. Each party will then have 30 days to respond to the notice of intent to dismiss. The party seeking the appeal may provide additional information or argument as to why the appeal should proceed. The party that would be the respondent to the appeal may provide additional information or argument as to why the appeal should not proceed. The panel will reconvene to consider these submissions (if any) and make a final decision as to whether the appeal will be dismissed or will proceed.

Important Considerations

When filling out the Request for Appeal form, the appellant should keep in mind that the onus is on the appellant to demonstrate that the original decision-making process was flawed and to clearly explain the grounds on which the appellant is challenging the decision. It is not enough to merely state the process was flawed. Details on how the process was flawed must be included in the Request for Appeal in a way that ties back to the grounds for appeal.

When submitting a completed Request for Appeal form, appellants should include all relevant information or documentation that supports their argument. Information can only be accepted at certain points of the appeal process. What information to provide will vary depending on the nature of the appeal and the grounds being raised.

Because the Appeal Committee’s mandate is to examine the decision-making process, and because the onus is on the appellant to demonstrate there was a flaw in the decision-making process, the Appeal Committee will not solicit information referred to in a Request for Appeal that the appellant has not provided. It is up to the appellant to ensure the Request for Appeal is complete.

Please see the “Grounds for Appeal” section for more information on the grounds available.

Please see the “Evidence” section for more information on how evidence is considered by the Appeal Committee.

People may wish to challenge a regulatory decision for a variety of reasons – these are referred to as the “grounds” for appeal. The By-laws establish that the grounds of appeal are limited to a denial of natural justice or an error on the record of the decision of the committee or the Registrar. The Appeal Committee’s focus is on whether there was a flaw in the original decision-making process. The Appeal Committee does not reconsider the facts. Although there are only two grounds for appeal, they may present in different ways.

Denial of Natural Justice

The first ground for appeal is called a denial of natural justice. There are two basic elements of natural justice: (1) that the parties had a fair opportunity to present their case, and (2) that the panel or individual making the decision was impartial. Both elements need to be present for a decision to be considered “just.”

Examples of a denial of natural justice may include matters such as the following:

• A party was not notified of an allegation against the party.
• A decision-maker had a personal interest in the outcome (for example, was close friends with or a relative of one of the parties or had a financial interest in the outcome).
• The established procedure was not followed.

Error on the Record

The second ground for appeal is known as an error on the record and occurs when a regulatory committee or the Registrar fails to consider the correct facts or fails to apply the correct rule or policy in making their decision.

Examples of an error on the record of the decision may include the following:

• The decision-maker failed to consider one of the jobs listed in support of an application for Validation of Experience.
• The decision-maker’s reasons demonstrate that the decision-maker did not understand an applicable by-law.

Errors in a decision that do not relate to the substance of the decision (such as typographical errors, or errors in a date or name) are not a sufficient basis for an appeal.

The onus is on the appellant to demonstrate that the original decision-making process was flawed because of a denial of natural justice or because of an error on the record (or both).

Most appeals are conducted through a review of written documentation. This applies to decisions of the Experience Assessment Committee, the CHRE Review Committee, the Complaints Committee, and the Registrar. Once the Chair of the Appeal Committee has approved an appeal to move forward, the staff member supporting the Appeal Committee will notify the appellant and the respondent (usually the HRPA) that the appeal is in progress.

Opportunity to Respond

The respondent has 30 days to submit a written response to the Request for Appeal. Where the HRPA is the respondent, it may do the following in its response, among other things:

• make arguments as to why it believes the appeal should be dismissed;
• make arguments as to why it believes any fresh evidence should not be admitted, if such evidence was submitted; and
• indicate it is not contesting the appeal.

A response by the HRPA is not the decision of the Appeal Committee. The HRPA is, in effect, the “other side,” and has the right to make arguments as the responding party. The Appeal Committee considers the HRPA’s submissions just as it considers the appellant’s submissions and makes a decision based on the information presented by both sides.

Appellant’s Opportunity to Reply to the Respondent’s Response

After the respondent (usually the HRPA) submits its response, the appellant will be provided with a copy of the response and given 10 days to submit a reply. The appellant is not required to submit a reply. A reply is an opportunity to refute statements or arguments raised by the respondent in its response. No new issues may be raised in reply.

Documentation Used in a Review

When all responses have been received, the staff support schedules a panel of the Appeal Committee to review the documentation and make a decision. The documentation provided to the panel includes:

• the Request for Appeal form and any supporting documentation;
• the original decision being appealed;
• the documentation reviewed by the original decision-maker in making the decision;
• the respondent’s response to the Request for Appeal; and
• the appellant’s reply to the response (if any).

The documentation reviewed by the original decision-maker will vary depending on the nature of the decision being appealed. Whatever information was before the original decision-maker will be provided to the Appeal Committee. For example, an appeal of a decision of the CHRE Review Committee or Experience Assessment Committee will include a copy of the original CHRE or Validation of Experience application. An appeal of a Complaints Committee decision will include the submissions to the Complaints Committee made as part of the complaints process.

Panel Deliberations

The Appeal Committee typically sits in panels of three to review an appeal. In each panel, there will be at least one registrant of the HRPA (who holds an HRPA designation) and one member of the public. Panel deliberations are confidential and are not attended by either the appellant or the respondent. The staff member supporting the committee attends to provide administrative support to the panel but does not participate in the deliberations. Deliberations are confidential and privileged. If the panel has questions for either party, the staff support will reach out to both parties by email and provide instructions on how to make submissions. When a question is asked of only one party, the other party will be provided with a copy of the response and be given an opportunity to submit a reply.

Most of the time, appeal panels need only one review session to reach a decision. A written decision is usually released within 45 days of that session. For appeals related to decisions of the Registration Committee, a written decision is typically released within 10 days from when the decision is made (in accordance with the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 and associated regulations). If an appeal is conducted through a review (versus a hearing), the decision is released only to the parties.

When an appeal panel requires more than one review session to make a determination, the staff support will advise both parties by email.

Confidentiality of Documents Obtained as Part of the Appeal Process

Parties and their representatives should note that documents prepared for, or statements given in, the HRPA appeal process are not admissible in any civil proceedings, other than a proceeding  under the Registered Human Resources Professionals Act, 2013 or a judicial review related to a proceeding under the Act. Additionally, no decision or order made in an HRPA proceeding is admissible in any civil proceeding, other than a proceeding under the Act or a judicial review related to a proceeding under the Act.

Average Timeline

It typically takes approximately 4 to 5 months for an appeal to move through the entire review process. However, the length of time the appeal takes will depend on the unique circumstances of the case. More complex cases require more time. The staff member supporting the committee will notify the parties if a matter is taking or is expected to take significantly longer than usual.

The Appeal Committee will only hold a hearing on an appeal when the decision being appealed was made pursuant to a hearing. This applies to decisions of the Discipline Committee, the Capacity Committee, and some decisions of the Review Committee. When a hearing is required, the Appeal Committee conducts hearings in accordance with the Statutory Powers Procedure Act and the Appeal Committee Rules of Procedure (English version)/Règles de Procédure du Comité d’Appel pour les Audiences (French version).

Hearings may be conducted in one of two ways, in person or electronically, at the discretion of the Appeal Committee. Most hearings are open to the public and decisions pursuant to a hearing are made publicly available. However, if there are legitimate safety concerns associated with holding a public hearing or releasing an unredacted decision, an exception may be made. .

If an appeal requires a hearing, detailed instructions regarding the process for the hearing are provided to the parties.

Fresh Evidence

Because an appeal is not a retrial of the original proceeding, the parties are typically not allowed to present evidence that was not before the original decision-maker. There are exceptions, however, including if the evidence is about the decision-making process and is being presented to advance an argument that there was a denial of natural justice.

Evidence that was not before the original decision-maker is known as fresh evidence. The Appeal Committee may accept fresh evidence if the following three criteria are all met:

• it is credible;
• if admitted, it would probably have an important influence on the result; and
• it could not have been obtained by reasonable diligence at the time of the original decision.

The panel reviewing the appeal will determine if new information that was not before the original decision-maker constitutes fresh evidence and, if so, whether it meets all three criteria mentioned above. If the panel determines that the new information does meet all three criteria, it will include the fresh evidence in the deliberations. If the panel determines that the information does not meet the test, the panel will exclude it. The panel’s written decision will note whether the new information was admitted into its deliberations as fresh evidence and why or why not.

Fresh evidence related to the original decision that was not provided to the original decision-maker but could have been is usually not admissible; a committee or the Registrar cannot be faulted for not considering information that was not presented for consideration in making the original decision. For example, a registrant who is appealing a decision of the Experience Assessment Committee regarding the registrant’s Validation of Experience application will not be permitted to present information (such as a letter from an employer or additional details) explaining the registrant’s experience if that information was not presented to the panel that made the original decision.

Relevance and Reliability

In deciding whether to admit fresh evidence, the Appeal Committee will consider the following factors:

• Is the evidence relevant? (Does it relate to the process by which the original decision was made?)
• Is the evidence reliable? (Can it be trusted?)
• Is the evidence necessary? (Is the evidence needed or does it simply repeat other evidence already given that is not in dispute?)
• Would it be fair to admit it? (Is the value of the evidence greater than any harm that may be caused by admitting it?)

Evidence is relevant if it tends to prove or disprove an issue the panel must decide. Reliability may depend on a number of factors. If the evidence is from a person, factors such as credibility, objectivity, ability to perceive, and passage of time may be relevant to the determination of reliability. The more relevant and reliable the evidence, the greater the weight it can be given. Evidence that is unnecessary should not be admitted. Evidence that may cause more harm than the value it will provide should also not be admitted.

Fact Evidence

There are two types of possible fresh evidence in an appeal: fact evidence or expert evidence. In general, fact evidence is about what someone perceived (heard, saw, felt, tasted, or smelled). Fact evidence is by far the most common type of evidence that the HRPA sees. Evidence from a colleague about what was said by a registrant would be fact evidence. Evidence from an employer about a person’s experience in a job would be fact evidence.

Expert Evidence

Expert evidence tends to be quite rare in matters before the Appeal Committee.

Experts are people who have comprehensive knowledge of a particular area or matter due to education, training, skill, or experience (such as a medical specialist or forensic accountant). Expert evidence can be given through testimony during a hearing or as a written report as part of a review. Expert evidence that was not before the original decision-maker must meet the same three-part test as other fresh evidence if the panel is to consider it in its deliberations. Expert evidence must also meet an additional requirement—that the expert is qualified to provide the opinion.

If one of the parties wants to present fresh evidence that is expert evidence, the other party is given sufficient time to review the expert evidence and, if the other party so wishes, to seek out their own expert evidence. The introduction of expert evidence will likely lengthen the proceedings.

Any party wishing to introduce expert evidence must notify the Panel Chair at least 10 days before the scheduled hearing or review to allow for sufficient time to reschedule the hearing or review; notification is done through the committee staff support. As part of the notification, the party must also inform the Panel Chair of the date on which the expert report is to be delivered. This date must be within 30 days of the notice that expert evidence is to be submitted. The party submitting expert evidence must forward the report to the committee staff support, who will provide a copy of the report to other party. The other party has 30 days from receipt of the expert report to submit their own expert evidence (and may request additional time if such other party can demonstrate that it is having a difficult time finding and retaining an expert able to provide an expert report).

The Appeal Committee is a standing committee of the HRPA and is independent of the Board of Directors. The HRPA Board has no authority to review or reverse decisions of the Appeal Committee except in extraordinary circumstances where a membership is suspended or revoked.

Membership of the Appeal Committee is described in the Appeal Committee Terms of Reference.

A decision of a panel of the Appeal Committee constitutes a decision of the Appeal Committee. Panel members are appointed by the Chair of the Appeal Committee from among the members of the Appeal Committee.

The Appeal Committee is supported by an HRPA staff member who schedules appeal reviews and hearings, organizes appeal materials, and keeps the parties updated on the progress of the appeal. The staff member acts as a neutral facilitator and does not have any decision-making authority or influence on the outcome of an appeal. The staff member cannot give legal advice.

The Appeal Committee has access to independent legal counsel.

Following a review or a hearing, the Appeal Committee may, unless otherwise stated in the Act or the By-laws,

• make any decision or order that could have been made by the original committee or Registrar;
• order a new hearing or review, as applicable, before a new panel of the original committee or Registrar; or
• dismiss the appeal.

The Appeal Committee is not permitted to do any of the following:

• make a decision or order that would contravene the Act, the By-laws, or a policy approved by the Board;
• make a decision that is beyond the scope of authority of the original committee or the Registrar;
• order that a person be deemed to have passed an exam when the person has not;
• waive non-exemptible requirements (such as the degree requirement for the CHRL designation or the exam requirements); or
• grant a designation.

Each matter is decided on its unique merits.

Any decision of the Appeal Committee takes effect on the day the decision is released to the parties, unless otherwise ordered by the Appeal Committee as part of its decision. A decision or order of the Appeal Committee is final, meaning there is no further possibility of reconsideration through the HRPA. Appeal Committee decisions may be subject to judicial review by the Divisional Court.

For more information on the Divisional Court, please see: https://www.ontariocourts.ca/scj/divisional-court/