Extracts: Procedural Fairness – Why does it matter? | shannonsalter | May 06, 2015

H2O

Extracts: Procedural Fairness – Why does it matter?

 

Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 establishes the default position that a breach of procedural fairness must always result in quashing the administrative tribunal’s decision.

On this point, the SCC held at paragraph 23:

[…] I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

 

  1. Exception: Triviality or Mootness

 

  1. Triviality

 

Westfair Foods Ltd. v. United Food and Commercial Workers' Union, Local 401, 2007 ABCA 167:

 

5     We are mindful that the failure to give a party an opportunity to reply to either evidence or other submissions is a denial of procedural fairness and a breach of natural justice: Goyal v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 258 at pp. 2-3 (F.C.A.) and Hehr v. Alberta (Crimes Compensation Board) (1995), 174 A.R. 318 at 319 (C.A.).

6     The Appellant concedes that the Respondent would have a legitimate expectation of a right to reply to post-hearing submissions made by the Appellant which were material, and upon which the arbitrator relied in arriving at his decision. In this case, however, the post-hearing submissions were, in our opinion, neither material, considered, nor relied upon by the arbitrator in arriving at his decision.

7     In Lone Pine (Committee) v. Alberta (Natural Resources Conservation Board), [2005] A.J. No. 1380, 2005 ABCA 348, this Court found that:

[T]he Board was not unfair and was not required to await a reply by the applicant to materials that the Board did not take into account in its deliberations. Neither a common law duty of fairness nor the APA can reasonably be construed as granting an absolute right to reply regardless of whether the information received ... was considered or otherwise taken into account by the Board." (at para. 11).

8     The Court in Lone Pine held that because "the Board did not take the [first party's] submission into account ... the [second party] was not treated unfairly in not being provided with opportunity to respond to a submission that was not considered by the Board." (at para. 11)

9     In the result, it cannot be said that, in this case, the arbitrator breached the duty of procedural fairness by not considering the Respondent's post-hearing submission before rendering his decision.

10     Accordingly, we allow the appeal and restore the decision of the arbitrator.

 

Compass Group Canada (Health Services) Ltd. v. Hospital Employees' Union, 2007 BCCA 237:

33     The foundation for HEU's alternative submission is a subsequent certification, upheld on reconsideration, of the same kind of unit that was certified here: BCLRB No. B6/2006, [2005] B.C.L.R.B.D. No. 339, upheld on reconsideration, BCLRB No. B71/2006, [2006] B.C.L.R.B.D. No. 71, coupled with the decision of the Supreme Court of Canada in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. HEU submits that in view of the group of cases considered in BCLRB No. B6/2006, this Court has the unusual opportunity to know with near certainty what will happen if the matter is referred back to the Board and therefore there is no practical utility in doing so.

62     In my opinion, the chambers judge did not err in law in applying what the Supreme Court of Canada said in Larocque to the facts of the case before her. The judge gave full and cogent reasons for concluding that the additional evidence Compass tendered was of marginal significance in determining the issue of bargaining unit appropriateness and that the Vice-Chair's assumed failure to take the evidence into account therefore did not result in an unfair hearing.

 

  1. Mootness

 

Moose Jaw Central Bingo Assn. Inc. v. Saskatchewan (Liquor and Gaming Authority), [1994] S.J. No. 76 (C.A.):

 

2     To begin with, certiorari is a discretionary remedy, discretionary in the sense that even if an applicant makes out a case for its issue, notwithstanding the presence of a privative clause, it remains for the judge to grant or withhold the remedy in the exercise of his or her discretion. In the exercise of the discretion thus afforded him, and acting upon the circumstances of the case, Malone J. declined to grant the remedy. He did so on the ground, in effect, of futility.

3     We are unable to say that he erred in principle or that he overlooked or disregarded any material matter in doing so. Even if the circumstances had given rise to an appearance of institutional bias or to some other failing going the Commission's jurisdiction to make the decision it made -- matters we do not find it necessary to decide -- the chamber judge nevertheless remained empowered to withhold the remedy if its grant were futile. And we think it would have been futile to grant it.

4     It is not as though the chambers judge could have gone on to order that licenses be issued to the applicants had he granted the remedy. That was out of the question. Nor is it as though he could have set aside the licenses of the respondent associations. That, too, was out of the question. The most he could have done was to have remitted the matter to the Commission for re-determination. But since the Authority had decided to limit the number of licenses in Moose Jaw to two, an unchallenged decision made well in advance of its determination of the applications for license, and since two validly issued and extant licenses were in existence, where could the grant of the remedy have led except to a dead end? Add to that the other considerations upon which the chambers judge acted, and in reality the remedy could have little or no effect or purpose.

5     Hence we can find no tenable basis for interfering with the exercise by the chamber judge of the discretionary power afforded him and no basis therefore to interfere with his disposition of the application.

 

Bago v. Canada (Minister of Citizenship and Immigration), 2004 F.C.J. No. 1565 (T.D.)

 

10     The Federal Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, has cautioned against striking out a judicial review application except in very exceptional circumstances, however such exceptional circumstances generally involve situations in which the issue of relief has become moot: see Narvey v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 1 (F.C.T.D.); Lee v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 229 (F.C.T.D.).

11     The test for mootness, as set out in Borowski by Mr. Justice Sopinka at page 353, states:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision.

[…]

The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

12     Mr. Justice Sopinka further considered the reasoning behind the doctrine of mootness at pages 359 to 362 of Borowski, concluding that there are three points to consider:

(i)  the existence of an adversarial context;

(ii)  judicial economy and the conservation of judicial resources; and

(iii)  a need for the Court to demonstrate awareness of its proper function.

 

Mobil Oil Canada Ltd. v. Canada-Nfld. Offshore Petroleum Board, [1994] 1 S.C.R. 202:

50     Mobil Oil's application was greeted by a letter from the Chairman which stated that the application could "not be brought before the Board" because it was not "bona fide". While I agree that the Implementation Act absolutely cannot support the interpretation advocated by Mobil Oil, it goes too far to pretend that Mobil Oil did not deserve a full hearing, which could have been effected in writing, in respect of its novel interpretation. The Chairman's response was the product of an improper subdelegation which effectively interrupted Mobil Oil's procedural guarantees. Indeed, before this Court counsel for the Board admitted that it would have been preferable for Mobil Oil to have been given a Board hearing. If it would have been preferable, why should another result be accepted?

51     In light of these comments, and in the ordinary case, Mobil Oil would be entitled to a remedy responsive to the breach of fairness or natural justice which I have described. However, in light of my disposition on the cross-appeal, the remedies sought by Mobil Oil in the appeal per se are impractical. While it may seem appropriate to quash the Chairman's decision on the basis that it was the product of an improper subdelegation, it would be nonsensical to do so and to compel the Board to consider now Mobil Oil's 1990 application, since the result of the cross-appeal is that the Board would be bound in law to reject that application by the decision of this Court.

52     The bottom line in this case is thus exceptional, since ordinarily the apparent futility of a remedy will not bar its recognition: Cardinal, supra. On occasion, however, this Court has discussed circumstances in which no relief will be offered in the face of breached administrative law principles: e.g., Harelkin v. University of Regina, [1979] 2 S.C.R. 561. As I described in the context of the issue in the cross-appeal, the circumstances of this case involve a particular kind of legal question, viz., one which has an inevitable answer.

 

 

  1. Exhausting Internal Remedies/Prematurity & Curing

 

  1. Exhausting Internal Remedies

 

Harelkin v. University of Regina, [1979] 2 S.C.R. 561:

 

Beetz J.:—

 

The principle that certiorari and mandamus are discretionary remedies by nature cannot be disputed.

 

[…]

 

The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right. I believe the correct view was expressed by O'Halloran J. in The King ex rel. Lee v. Workmen's Compensation Board, [1942] 2 D.L.R. 665], at pp. 677-678 dealing with mandamus but equally applicable to certiorari:

Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise, then mandamus issues ex debito justitiae, if there is no other convenient remedy ... If however, there is a convenient alternative remedy, the granting of mandamus is discretionary, but to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice...

 

  1. Prematurity:

 

Zundel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 (C.A.):

 

10     Are the applications for judicial review premature? As a general rule, absent jurisdictional issues, rulings made during the course of a tribunal's proceeding should not be challenged until the tribunal's proceedings have been completed. The rationale for this rule is that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. For example, in the proceedings at issue in this appeal, the Tribunal made some 53 rulings. If each and every one of the rulings was challenged by way of judicial review, the hearing would be delayed for an unconscionably long period….

14     Notwithstanding the general rule, counsel for Mr. Zündel argued that the two rulings made by the Tribunal constituted "special circumstances" that warranted immediate judicial review. He argued that the Tribunal's rulings were so significant that they went to the Tribunal's very jurisdiction.

15     I disagree. The rulings at issue in these appeals are mere evidentiary rulings made during the course of a hearing. Such rulings are made constantly by trial courts and tribunals and if interlocutory appeals were allowed from such rulings, justice could be delayed indefinitely. Matters like bias and a tribunal's jurisdiction to determine constitutional questions or to make declaratory judgments have been held to go to the very jurisdiction of a tribunal and have therefore constituted special circumstances that warranted immediate judicial review of a tribunal's interlocutory decision.

 

Secord v. Saint John (City) Board of Commissioners, [2006] N.B.J. No. 84 (Q.B.):

 

12     The Police Board asserts that this application to quash the Adjudicator's preliminary ruling is premature and is not one of those rare situations in which the Court should review a preliminary decision.

13     In Szczecka v. Canada (Minister of Employment and Immigration) (1992), 116 D.L.R. (4th) 333, Letourneau J.A., writing on behalf of the Federal Court of Appeal, concluded at page 335 that:

unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exits. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute.

27     A review of the case law reveals an attack on the tribunal's jurisdiction or the absence of an appropriate remedy at the end of the proceedings would constitute special or exceptional circumstances.

29     In my opinion, where the question of jurisdiction presents itself as a clear question of law, it is not premature to apply to the Court to have that question determined.

30     I am of the view that since the issue here involves an attack on the very existence of the Adjudicator, there is a special reason permitting judicial review at this stage.

 

  • Curing

 

Taiga Works Wilderness Equipment Ltd. v. British Columbia (Director of Employment Standards), 2010 BCCA 97:

36     The above review of the jurisprudence demonstrates that Cardinal does not stand for the broad proposition put forward by the employer that an appellate tribunal has no power to cure breaches of the rules of natural justice and procedural fairness….

37     I think it is fair to say that Cardinal stands for the proposition that a breach of the rules of natural justice or procedural fairness cannot be overlooked on the basis that the reviewing court or appellate tribunal is of the view the result would have been the same had no breach occurred. As demonstrated by the post-Cardinal authorities to which I have referred, Harelkin and King continue to stand for the proposition that appellate tribunals can, in appropriate circumstances, cure breaches of natural justice or procedural fairness by an underlying tribunal. The question then becomes how one should determine whether such breaches have been properly cured.

38     As did Huddart J.A. in International Union of Operating Engineers and Berger J.A. in Stewart, I prefer the approach advocated by de Smith, Woolf and Jowell in Judicial Review of Administrative Action. One should review the proceedings before the initial tribunal and the appellate tribunal, and determine whether the procedure as a whole satisfies the requirements of fairness. One should consider all of the circumstances, including the factors listed by de Smith, Woolf and Jowell

 

  1. Waiver

 

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

 

103     … However, with respect to the second issue on appeal-whether the Property Assessment Appeal Board's decision to hold a written hearing constitutes a denial of natural justice -- I reach the same conclusion as my colleague, but I prefer to rest my opinion on narrower grounds. For the reasons I explain below, I agree with the chambers judge. Mr. Allard did not pursue his request for an oral hearing and consequently it cannot be said he was denied a fair process.

 

Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services), [2000] F.C.J. No. 1946 (C.A.):

43     Finally, it should be noted that, from the beginning, Cougar had been aware of the identity of the members of the evaluation committee and knew that two of them had worked with officials from PAL. Allegations of bias must normally be raised at the earliest practicable opportunity; if not taken in timely fashion, an objection will be regarded as waived. It cannot be used by the unsuccessful party to impugn the validity of the decision after the administrative process has been allowed to run its course without objection.

 

Kvelashvili v. Canada (Minister of Citizenship and Immigration) (2000), 180 F.T.R. 128:

 

[17]      The presiding member then went on to indicate that the claimants should be allowed 5 minutes to have the procedure explained to them, when only one member conducts a hearing. The Tribunal failed to provide the claimants with any independent advice and asked the R.H.O. to assist in providing them with legal advice.

 

[18]      From a reading of the transcript, it is evident that the claimants were not advised that they could refuse to proceed with the refugee hearing since only one panel member was available. Nowhere in the transcript is it indicated that Dominique Leclercq informed the claimants that they had the option to refuse to proceed in light of the fact that only one member was competent on that day to entertain the claim.

 

[19]      As Mr. Justice Linden of the Federal Court of Appeal wrote in Virk v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 199:

 

For, if a claimant is pressured into consenting or if he does not understand what he is doing, there is no valid consent.

 

[20]      I could elaborate further but I am satisfied that there has been a miscarriage of justice and that the matter should be returned for a rehearing before a differently constituted panel.

 

  1. Unclean Hands

 

 

Cosman Realty Ltd. v. Winnipeg (City) (2001), 157 Man. R. (2d) 117 (Q.B.) aff’d (2001), 160 Man. R. (2d) 32 (C.A.):

 

15     This principle of looking at the purpose of the equitable relief requested and refusing to grant that relief where it was not being sought for a useful or proper purpose was recently dealt with by the Manitoba Court of Appeal in Rivard Ultracuts Ltd. v. Unicity Mall Ltd. (1999), 142 Man. R.(2d) 63. That was a decision dealing with an application for the equitable remedy of an injunction to prevent the demolition of a shopping mall before the termination of several leases. The mall owners decided to replace an enclosed mall with several separate stores, so they emptied the mall of most of the tenants. They were not able to negotiate the termination of a few leases, so they were proceeding with their plans to demolish the mall notwithstanding that these businesses continued to operate. The tenants applied for interlocutory injunction, which was granted. On appeal, the Court of Appeal agreed that the mall owners were acting in breach of the leases and that they had no right to remove the tenants from the premises to enable the demolition to proceed. Despite the fact that the mall owners were acting illegally, the court refused to uphold the injunction because it found that the equitable remedy was being used for an improper purpose. The court found that the tenants were seeking an injunction to give them leverage in negotiating the terms on which their respective leases might be terminated and, in particular, the damages to be paid, which the court found was not a proper purpose….

16     While these comments from Rivard were made in the context of an application for the equitable remedy of an injunction, I find that they are equally applicable to this application for a declaration. Where equitable relief being requested by a litigant would not achieve the goal for which it is ostensibly being requested, but will advance some other more oblique purpose, the court must look very closely at the true purpose of the application. If the true purpose is to achieve an improper result, then the equitable relief should be refused.

20     Thus, I have concluded that this application has no utility, in that the project is proceeding and expropriation is most likely to be undertaken by the Province if the courts find that the City does not have the jurisdiction to do so. While a decision favourable to Cosman will delay the project, it will not stop it.

21     I have also concluded that the application has been brought for an improper purpose, that being to improve Cosman's bargaining position with the City and extract a greater price for the property.

22     Finally, there is an alternative remedy available to Cosman, being to seek compensation under provincial expropriation legislation for the taking of its property. Cosman has given no evidence that it cannot be appropriately compensated by way of damages, and this is by far the more appropriate remedy.

Jaouadi v. Canada (Minister of Citizenship and Immigration) (2003), 257 F.T.R. 161:

17     When an applicant applies to this Court for a discretionary order, as is the case here, his conduct must be beyond reproach (Kouchek v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 323 (T.D.). The relevant facts in support of the application for leave and judicial review must be submitted fully and objectively to the Court….

19     Clearly, the applicant did not come to Court with clean hands, and for this reason alone it is proper for the Court to dismiss the application for judicial review at bar. The Court is not prepared to accept that a refugee claimant who has fabricated a story on the advice of a former representative can seek a new hearing before a panel of different members simply on the basis that he has been badly advised by that person. The applicant cannot profit here from his own turpitude. It must be borne in mind that the applicant has taken an oath to tell the complete truth. He must accordingly bear full responsibility for any perjury he may have committed before the panel.

 

  1. Balance of Convenience

 

MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2:

 

[52]  I acknowledge that in exercising discretion to grant declaratory relief without requiring the parties to substantially redo the environmental assessment, the result is to allow a process found not to comply with the requirements of the CEAA to stand in this case.  But the fact that an appellant would otherwise be entitled to a remedy does not alter the fact that the court has the power to exercise its discretion not to grant such a remedy, or at least not the entire remedy sought.  However, because such discretionary power may make inroads upon the rule of law, it must be exercised with the greatest care.  See Sir William Wade and C. Forsyth, Administrative Law (10th ed. 2009), at p. 599, and  Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 361.  In the exercise of that discretion to deny a portion of the relief sought, balance of convenience considerations are involved.  See D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 3-88 and 3-89, referred to by Binnie J. in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 36.  Such considerations will include any disproportionate impact on the parties or the interests of third parties (Brown and Evans, at p. 3-88, fn. 454).  In my respectful opinion, that is the situation here.  The focus of MiningWatch’s interest as a public interest litigant is the legal point to which the declaration will respond.  On the other hand, I can see no justification in requiring Red Chris to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the RAs.

 

Close

Text Information

May 08, 2015

Author Stats

shannonsalter

Adjunct Professor

University of British Columbia Faculty of Law

Expand
Leitura Garamond Futura Verdana Proxima Nova Dagny Web
small medium large extra-large