Representations Decisions by the Board

This policy describes the Board’s practices regarding determining who is entitled to make representations under section 128 of the Act and the form of such representations.

I. Policy

The Chair decides who is entitled to make representations and the form of representations. The Chair also has the discretion to extend the opportunity to make representations to other parties or persons beyond those who are adversely affected.

II. Background

Section 128 of the Act states:

If it appears to the board that there may be sufficient grounds for making a report or recommendation under this Act that may adversely affect a party or person, the board must inform the party or person of the grounds and must give the party or person the opportunity to make representations, either orally or in writing at the discretion of the board, before it decides the matter.

In a typical board process of an investigation or audit file, there are at least two, and sometimes more, points at which the need to give such an opportunity arise. First, it may arise when an auditor’s report is submitted or when a draft report is completed. If representations are received, it may arise again when changes in response to the representations are made and a Board report is being finalized.

There are three requirements for a person who decides who is entitled to make representations:

  1. must use consistent, logical criteria to decide
  2. must understand the report issues and the roles of each participant
  3. must understand changes in the effects of the revised report or recommendations since any previous opportunity for representations

As a general guideline, in interpreting section 128, the Chair interprets “adversely affected” as “directly and significantly adversely affected”, although mitigating or aggravating circumstances are also considered. Note that a party or person has a right to make representations if directly and significantly adversely affected by a Board report. Representation is not a privilege conveyed by the Chair; the Chair only decides who meets the criteria.