Extracts: Procedural Fairness – Other | shannonsalter | May 06, 2015

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Extracts: Procedural Fairness – Other

 

 

Adequacy of Reasons

 

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817:

 

43  In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision.  The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required…. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

 

44  In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. 

 

In the text Administrative Law in Canada, Fourth Edition (Ontario: LexisNexis, 2006), Sara Blake summarizes the high water mark of the law concerning “Sufficiency of Reasons” at pages 90 and 91, as follows:

 

Regardless of whether there is a duty to give reasons, any reasons given must be adequate. It is not sufficient simply to outline the evidence and argument and to state the tribunal’s conclusion. Nor is it sufficient merely to repeat the applicable statutory provisions. That does not reveal the rationale for a decision. With respect to each important conclusion of fact, law and policy, the reasons should answer the question, “Why did the tribunal reach that conclusion?”

 

Reasons should state the findings of fact that support the conclusions and identify the evidence on which they are based. The rejection of important items of evidence and findings of credibility should be explained. If an application is dismissed by reason of insufficient evidence, the material deficiencies in the evidence should be identified. If a statute requires the consideration of certain factors, they should be discussed in the reasons. If several incidents of misconduct were alleged in the notice of hearing, the reasons for decision should identify which incidents are proven and the reasons for the disciplinary order.

 

However, reasons need not be given on every minor point raised during the proceeding nor must reference be made to every item of evidence….

 

In Gichuru v. Law Society of B.C., 2010 BCCA 543, the BCCA reasoned at paragraph 27:

 

Where a tribunal’s failure to deal with a critical issue leaves the tribunal’s reasoning unclear or interferes with the ability of a reviewing court to assess the tribunal’s decision, the error can be characterized as a failure to provide adequate reasons.  Such a failure is a breach of the duty of procedural fairness, and will be reviewable on the standard applicable to such breaches.  On the other hand, where the tribunal’s reasoning is clear notwithstanding its failure to mention a piece of evidence or a particular argument, the issue is not one of adequacy of reasons or of procedural fairness.  Rather, the question is whether the omission is indicative of a substantive error by the tribunal.

 

Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62:

12     It is important to emphasize the Court's endorsement of Professor Dyzenhaus's observation that the notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or which could be offered in support of a decision"….

13     This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for "justification, transparency and intelligibility". To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist….

14     Read as a whole, I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses -- one for the reasons and a separate one for the result…. It is a more organic exercise -- the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47).

16     Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion….

19     The Union acknowledged that an arbitrator's interpretation of a collective agreement is subject to reasonableness. As I understand it, however, its argument before us was that since the arbitrator's reasons amounted to "no reasons", and since the duty to provide reasons is, according to Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, a question of procedural fairness, a correctness standard applies.

20     Procedural fairness was not raised either before the reviewing judge or the Court of Appeal and it can be easily disposed of here. Baker stands for the proposition that "in certain circumstances", the duty of procedural fairness will require "some form of reasons" for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness. In fact, after finding that reasons were required in the circumstances, the Court in Baker concluded that the mere notes of an immigration officer were sufficient to fulfil the duty of fairness (para. 44).

21     It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review. As Professor Philip Bryden has warned, "courts must be careful not to confuse a finding that a tribunal's reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it"….

22     It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.

 

 

Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal), 2012 BCCA 304:

 

Adequacy of Reasons

[31]        The reasons for judgment in this case were delivered May 3, 2011.  They canvassed the degree to which the reasons given by the WCAT adequately explained the basis of the decision and provided a higher court an opportunity to undertake a meaningful review of that decision.  At that time it was commonly understood that the question whether reasons were adequate engaged issues of natural justice and procedural fairness.  Whether reasons were adequate could, it was thought, provide an independent basis for judicial review.  It was on that basis that the chambers judge addressed the question before him.

[32]        On December 15, 2011 the Supreme Court of Canada released its reasons in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board).  In that case the Court clarified that the “adequacy” of reasons is not an independent or stand-alone basis to set aside or quash a decision of an inferior tribunal.  Accordingly, it is not the function of a reviewing court to undertake a two-step analysis, first reviewing the adequacy of the reasons and second reviewing the outcome.  Rather, “(i)t is a more organic exercise -- the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes”; see para. 14.

[33]        Justice Abella, writing for the Court, said at paras. 21 and 22:

It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review. ...

... (W)here, as here, there are reasons, there is no such breach.  Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.  [Emphasis in original.]

[34]        The reference to the “reasonableness analysis” is a reference to the applicable standard of review.  In a jurisdiction, such as this, in which the standard of review is prescribed by statute, challenges to the reasoning of the tribunal are to be made by reference to the standard of review applicable to the particular issue in question.

[35]        The parties accordingly recast their submissions to set them within the framework established by the Newfoundland and Labrador Nurses’ Union case.

Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65

[1]                              Construction Labour Relations - An Alberta Association appeals from a judgment of the Alberta Court of Appeal that allowed an appeal from a judgment dismissing an application for judicial review. In so doing, the Court of Appeal quashed a decision of the Alberta Labour Relations Board and remitted to the Board complaints alleging breaches of the Labour Relations Code, R.S.A. 2000, c. L‑1, that the Board had allowed in part in a decision dated January 8, 2009.

[2]                              The appeal is well founded. The Board considered the relevant provisions of the Code and the facts presented to it by the parties. Its interpretation of the Code and its conclusions were reasonable. Its decision was entitled to deference. The Court of Appeal had no valid grounds to review and quash the decision. The court focused on an assertion that the Board had failed to give proper consideration to the interplay between ss. 176(1)(b) and 178 of the Code and to the different meanings that could be ascribed to these provisions and to s. 176(2).

[3]                              The Board did not have to explicitly address all possible shades of meaning of these provisions. This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).

[4]                              For these reasons, the appeal is allowed, the judgment of the Alberta Court of Appeal is set aside and the judgment of the Court of Queen’s Bench is restored, with costs to the appellant.

 

Oral Hearings:

 

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177

 

  1. 59.              I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at pp. 806‑08 (per Ritchie J.) I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.

 

  1. 60.              As I have suggested, the absence of an oral hearing need not be inconsistent with fundamental justice in every case. My greatest concern about the procedural scheme envisaged by ss. 45 to 48 and 70 and 71 of the Immigration Act, 1976 is not, therefore, with the absence of an oral hearing in and of itself, but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet. Mr. Bowie argued that since the procedure under s. 45 was an administrative one, it was quite proper for the Minister and the Refugee Status Advisory Committee to take into account policy considerations and information about world affairs to which the refugee claimant had no opportunity to respond. However, in my view the proceedings before the Immigration Appeal Board were quasi‑judicial and the Board was not entitled to rely on material outside the record which the refugee claimant himself submitted on his application for redetermination: see Permaul v. Minister of Employment and Immigration (unreported judgment of the Federal Court of Appeal, No. A‑576‑83, dated November 24, 1983); Saraos v. Minister of Employment and Immigration, [1982] 1 F.C. 304, at pp. 308‑09. Mr. Bowie submitted that there was no case against the refugee claimant at that stage; it was merely his responsibility to make a written submission which demonstrated on the balance of probabilities that he would be able to establish his claim at a hearing. If the applicant failed to bring forward the requisite facts his claim would not be allowed to proceed, but there was nothing fundamentally unfair in this procedure.

 

 

Cross Examination

 

Wigmore on Evidence: cross-examination is “the greatest legal engine ever invented for the discovery of truth.”

 

In Innisfil Township v. Vespra Township, [1981] 2 S.C.R. 145, the Supreme Court therefore embraced the right of cross-examination in proceedings before tribunals in these terms at page 167:

 

[W]here the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen’s right to meet the case made against him by cross-examination.

 

In a similar vein was the earlier decision of the Alberta Court of Appeal in Re County of Strathcona No. 20 v. Maclab Enterprises Ltd. (1971), 20 D.L.R. (3d) 200 at pp. 203-4:

 

A person appearing before quasi-judicial bodies is entitled to be heard and to present his case, and when this is not permitted there is a denial of natural justice. In the process of presenting his own case he is entitled to weaken and destroy the case that is made against him. In trials in Court this is often effectively done by cross examination.

 

A party is often able to advance his own case from the mouths of his opponent’s witnesses. It does not follow that the refusal of or the placing of limitations upon the right of cross-examination will always require that the Court quash an order made in proceedings in which these restrictions are enforced. If he is afforded an equally effective method of answering the case made against him, in other words is given “a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice” (to quote the words used above) the requirements of natural justice will be met. Accordingly, the right to an oral hearing and cross-examination has never been absolute. It may be subject to statutory limitations (which may be subject, in turn, to the Charter), and other procedures may be substituted where they afford “an equally effective method of answering the case.”

 

Allard v. Assessor of Area #10 – North Fraser Region, 2010 BCCA 437.

 

  1. 55(1) of the Assessment Act read as follows:

 

55 (1)   In a proceeding, the board may hold any combination of written, electronic and oral hearings.

 

Rowles J.A. concluded that: the intent of s. 55(1) of the Act is to provide the Board with the power to choose the mode or modes of hearing that best suit the efficient and expeditious determination of the particular issue or issues before it:

 

For the Board to have the flexibility to have one kind of hearing or “any combination of written, electronic and oral hearings” accords with both its statutory mandate and the wide powers it has been given to make rules to control its procedures.

 

[…] [T]he contentious phrase in s. 55(1) is intended to give the Board the power to tailor its process to meet the requirements of the legislation. [at paras. 68-69]

 

Rowles J.A. placed greater emphasis on the Board’s “Guide” for taxpayers bringing single-family residential assessment appeals, which stated that the majority of appeals would proceed by written submissions. She held:

 

The Guide available in 2008, together with its supporting material, tends to undermine Allard’s submission of legitimate expectation and, more importantly, indicates why, in appeals of assessments of single family residential properties in particular, written submissions may suffice for appeal purposes. The factual issues tend to fall into readily discernable patterns and information to test expert opinions as to actual value is readily accessible to all parties. [para. 97]

 

A case dealing with cross examination as an aspect of procedural fairness is Djakovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2010 BCSC 1279. There, Voith J. held:

 

[52]           Still further, the Appeal Tribunal appears to have misapprehended the nature of the role served by cross-examination. The decision-maker asserted that, "there would be little value" in allowing a cross-examination and that asking "the same question is not likely to elicit an opposing opinion and there is no other evidence which this panel requires to arrive at a decision". These comments reflect two related problems. First, the decision-maker pre-supposed or prejudged what success might be achieved during the cross-examination of Mr. Dorsey or his colleague. Yet based on the various earlier written answers provided to the Appeal Tribunal, a range of potential responses were realistic -- some of which may well have advanced Mr. Djakovic’s interests.

[53]           Second, as I have noted earlier, one significant object of procedural fairness is to allow a party to further his or her case and to respond to the case he or she has to meet. Cross-examination serves a potentially vital role in fostering and advancing these objects. In Re County of Strathcona No. 20 et el. & Maclab Enterprises Ltd. (1971), 20 D.L.R. (3d) 200 (Alta. C.A.) at 203, Mr. Justice Johnson, for the court, considered the importance of cross-examination to a party’s ability to present its case:

One of the functions of cross-examination is “to correct or controvert any relevant statement’. Its purpose can be much wider. One such use is to establish or assist in establishing, by cross-examining, the party’s own case.

A person appearing before quasi-judicial bodies is entitled to be heard and to present his case, and when this is not permitted there is a denial of natural justice. In the process of presenting his own case he is entitled to weaken and destroy the case that is made against him. In trials in Court this is often effectively done by cross-examination. A party is often able to advance his own case from the mouths of his opponent’s witnesses.

[54]           In Armstrong v. Royal Canadian Mounted Police Commissioner, [1994] 2 F.C. 356, 24 Admin. L.R. (2d) 1 (T.D.) at para. 26, the Federal Court held that “where a member can demonstrate that it is necessary to contradict something ... and that cross-examination is the means in which it is proposed to do so, a board would run a serious risk of breaching rules of natural justice if it refused leave”.

[55]           In preventing counsel for Mr. Djakovic from undertaking the cross-examination he sought, the Appeal Tribunal foreclosed the prospect that Mr. Djakovic’s case might be advanced. It further impaired the ability of Mr. Djakovic to meet the case he faced. The question was not whether the Tribunal had the information required to arrive at a decision. Rather the question was whether Mr. Djakovic was given the opportunity to "fully and fairly" present his case: Baker at para. 28.

[56]           In denying him this opportunity I find that WCAT took the "unacceptable risk that not all information that could have affected its decision was placed before it": Baker v. Workers’ Compensation Appeal Tribunal, 2007 BCSC 1517 at para. 73. It thereby denied Mr. Djakovic the degree of procedural fairness to which he was otherwise entitled.

Johnson v. Alberta (Appeals Commission for Alberta Workers' Compensation), 2011 ABCA 345

 

The court pointed out that the Alberta Appeal Commission had already stated in its rules of procedure that cross examination could be permitted as follows:

 

Rules 3.10 and 3.11 provide as follows:

3.10     (1) The Appeals Commission may issue a notice to attend ... in accordance with section 13.1(5) of the Act.

(2)  An application for a notice to attend ... must be in writing and,

(a)  state the reasons why the notice is required, including an explanation of why a witness ... is relevant to the appeal ...

3.11     The Appeals Commission may refuse to issue a notice to attend ... if the Appeals Commission considers

(a)  the evidence ... sought [is] not relevant to the appeal,

(b)  the reason for the request is insufficient, or

(c)  the evidence is already available from another source."

 

 

Document Disclosure

 

Section 34 of the ATA provides:

 

Power to compel witnesses and order disclosure

 

(1)                            A party to an application may prepare and serve a summons in the form established by the tribunal, requiring a person

 

  1. […]

 

  1. b) to produce for the tribunal, that party or another party a document and relevant to an issue in the application.

 

(2)                            […]

 

(3)                            Subject to section 29, at any time before or during a hearing, but before its decision, the tribunal may make an order requiring a person

 

  • […]

 

  • to produce for the tribunal or a party a document or other thing in the person's possession or control, as specified by the tribunal, that is admissible and relevant to an issue in an application.

 

Section 5.4(1) of Ontario’s Statutory Powers Procedure Act, R.S.O. 1990 c. S.22 provides:

 

Disclosure

 

  • If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,
    • the exchange of documents;
    • the oral or written examination of a party;
    • the exchange of witness statements and reports of expert witnesses;
    • the provision of particulars;
    • any other form of disclosure.

 

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105:

 

With respect to the Board’s obligation to disclose the material new evidence to Dr. Kane, the SCC stated at page 1116-6:

 

  1. It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellate authority must not hold private interviews with witnesses… or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny….
  2. The court will not inquire whether the evidence did work to the prejudice of one of the parties; it is sufficient if it might have done so…. In the case at bar, the Court cannot conclude that there was no possibility of prejudice as we have no knowledge of what evidence was, in fact, given by President Kenny following the dinner adjournment…. We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons….

The Board was under an obligation to postpone further consideration of the matter until such time as Dr. Kane might be present and hear the additional facts adduced; at the very least the Board should have made Dr. Kane aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made. In the event, the Board followed neither course. The Board heard the further facts, deliberated, and ruled against Dr. Kane. In so doing, it made a fundamental error….

 

Economical Mutual Insurance Company v. British Columbia (Information and Privacy Commissioner), 2013 BCSC 903

 

[81]        While the insurer’s right to collect the information raised a general question applicable to all policyholders, the consent issue did not. The consent issue was focussed on the particular consent that the Complainant had given. It did not raise the issues of the consents that other policyholders may have given and no evidence was led concerning such consents.

[82]        Economical was entitled to know in advance of the hearing if other consents were in issue so it could consider whether to lead evidence concerning such consents. In Alberta (Human Rights & Citizenship Commission) v. Kellogg Brown & Root (Canada) Co., 2007 ABCA 426, the issue before a Human Rights Panel was whether an individual had suffered discrimination under Alberta’s Human Rights legislation because of a company’s hiring policy that required all persons seeking non-unionized positions to take and pass a post-offer/pre-employment drug test before they would be hired. The issue as to whether the company drug policy discriminated against any drug-addicted prospective employees generally was raised by the complaint. In discussing this issue, the court said at para. 41:

In advance of any hearing, the party complained against must know who it has to defend its actions against. Thus, if a complaint is meant to represent a broad class of individuals, that must be made reasonably clear in the complaint. In this case, KBR could only reasonably conclude that it was defending its actions as they related to Chiasson and not to drug-dependent persons generally. Had it been otherwise, KBR would have structured its defences accordingly.

[83]        Those comments apply with equal force in this case. Based on the notice, Economical had no reason to believe that consents it obtained from other policyholders were in issue.

[84]        In Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396, the court discussed procedural fairness in the context of an administrative law hearing. It said at para. 65:

Procedural fairness requirements in administrative law are not technical, but rather functional in nature. The question is whether, in the circumstances of a given case, the party that contends it was denied procedural fairness was given an adequate opportunity to know the case against it and to respond to it. In some circumstances, a tribunal's decision to address an issue not raised by the parties may constitute a denial of procedural fairness -- see, for example, MacNeil v. Nova Scotia (Workers' Compensation Board), 2001 NSCA 3, 189 N.S.R. (2d) 310.

[85]        A party is entitled to know the case it has to meet. Deciding an issue on a point on which the parties have not had a reasonable opportunity to present submissions breaches the rules of procedural fairness:  Amacon Property Management Services Inc. v. Dutt, 2008 BCSC 889 at paras. 27-36.

 

Rules of evidence such as solicitor client privilege, spousal privilege etc. continue to apply in tribunal proceedings. For example, the ATA provides at section 40(3):

 

(3)                            Nothing is admissible before the tribunal that is inadmissible in a court because of a privilege under the law of evidence

 

Delay

 

In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, the SCC agreed that section 7 of the Charter could theoretically apply to delay issues where the delay creates serious, state-imposed psychological stress:

57     Not all state interference with an individual's psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to "serious state-imposed psychological stress"… The words "serious state-imposed psychological stress" delineate two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations. These two requirements will be examined in turn.

 

General administrative law principles also offered a potential avenue for Mr. Blencoe to address his concerns about delay:

101     In my view, there are appropriate remedies available in the administrative law context to deal with state-caused delay in human rights proceedings. However, delay, without more, will not warrant a stay of proceedings as an abuse of process at common law. Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period…. In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay.

 

On the topic of delay amounting to abuse of process in the absence of procedural prejudice, the SCC held:

115     I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person's reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an "unacceptable delay" that amounts to an abuse of process.

122     The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community's sense of fairness would be offended by the delay.

 

Investigations:

 

Swanson v. Institute of Chartered Accountants of Saskatchewan (Professional Conduct Committee), 2007 SKQB 480

 

[63]  In the case before me, the professional conduct committee decides whether there will be a hearing before the discipline committee. As I have said, given the nature of disciplinary proceedings in the context of a self-regulating profession, such a decision can have an adverse effect on the member. If the decision is to hold a hearing, the member is likely to experience adverse effects as described in Hammond and Tanaka. This circumstance demands some duty of fairness, on the part of the committee, to the member whose conduct is being investigated.

 

[64]  In considering the nature of that duty of fairness, I consider that the Act provides broad power and discretion to the professional conduct committee in its proceedings. Under the terms of s.20, the committee is free to choose who to talk to and what documents to review. I also consider that, while the committee’s decision that there will be a hearing is final, that decision is only a preliminary decision in the overall disciplinary proceedings. While the committee’s decision can affect Mr. Swanson adversely, that adverse effect is limited. The committee’s decision cannot affect Mr. Swanson in the way that he can be affected by an adverse decision on the part of the discipline committee.

 

 

[65]              With these factors in mind, I conclude that the approach used by Justice Gerein in Hawrish is appropriate here. In its proceedings under s. 20 of the Act, the professional conduct committee owes a limited duty of fairness to the member whose conduct is being investigated. It is not the broad duty of fairness that typically is associated with rights to complete disclosure and to a full hearing. It is a limited duty to act fairly.

 

[73]              The reason for suggesting that a member must be given some information at the investigation stage is, as suggested by Mr. Swanson, that the member should have an opportunity to respond and to have that response considered by the committee that is deciding whether to proceed to a hearing. This reasoning, in the context of fairness, was discussed by Justice Vertes in Tanaka at paras. 36 and 40:

 

36  . . . I fail to see how the investigator could come to a reasoned decision even at this initial stage without the investigation including at least the response of the person being investigated.

 

40  For these reasons, I have concluded that there is a duty on the part of the investigator to, at a minimum, notify the member of the complaint and solicit a response from the member. That is as far as the investigator needs to go. That was not done in this case, hence Mr. Wowk’s direction for an inquiry is quashed.

 

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May 08, 2015

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shannonsalter

Adjunct Professor

University of British Columbia Faculty of Law

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