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Some specific Components of the Duty of Fairness

• Although most of the procedural rights protected by the duty

CANADIAN of fairness are well established, their parameters are open
ADMINISTRATIVE to argument in particular contexts:
LAW Right to Be Heard Right to an Unbiased
Decision Maker
Notice, Disclosure, Oral Issues wrt individual
hearings, Right to be conduct, institutional
Module 4 Present, Right to counsel, (structural) issues and lack
Rights to call evidence, of independence
Timeliness and delay, Duty
to give reasons
Liz Nastasi & Trevor Guy

Procedural or Substantive? Exam Prep and Group Work

• REVIEW the “SALLY Scenario”
• Denial of an adjournment request
based on factors not set out in the rules. • What possible breaches of procedural fairness could
• Denial of the opportunity to cross-examine a witness. be argued by Sally?
• A finding that applicant missed a limitation period and is
out of time to apply. • Which, if any, are likely to succeed?
• The decision maker used to work at the same firm as the
opposing party on your case.
• Discuss the reasons for your conclusions.
• Adjudicator allowed the opposing party to add an issue in
dispute on the morning the hearing.
• HINT – Use the Process Map to guide you through the
• Reasons for the denial of an application appeared to be a
template response. answer

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Notice
Notice
• The overarching requirement of the duty of fairness is the
idea of reasonableness. Canada v. Mavi, 2011 SCC 30
• General rule:
• Issue: those who sponsor foreign nationals must undertake to cover the cost of
“[N]otice must be adequate in all circumstances in order to afford to every benefit provided as social assistance to the sponsored family member. To
those concerned a reasonable opportunity to present proofs and what extent must the government notify sponsors before certifying the debt and
arguments, and to respond to those presented in opposition.” registering it with the FC to collect?

• Ongoing duty: • Factors:

• it arises prior to the making of a decision and continues throughout • Nature of the scheme is straightforward debt collection – process should not be
the course of a decision-making process. complicated. The scheme leaves with the government with discretion to not
take enforcement in appropriate circumstances (statutory regime and Ontario)
• A party entitled to participate meaningfully in the decision- • The nature of the decision is final and specific: will result in a judgment. No
making process, and in order to do so must be kept ability to appeal. Absence of other remedies. The effect of the decision may be
significant, since debts can be large.
apprised of any relevant issues that arise during the • PF content: notice of the claim, chance to respond with personal
course of a hearing. circumstances, government must consider relevant circumstances, and notify
(no reasons) sponsors of decision.

Disclosure
Notice • Concept of disclosure well known in the context of the criminal law.

Martin v. Ontario Civilian Police Commission, 2020 ONSC 1116

• In R. v. Stinchcombe, the Supreme Court of Canada held that the Crown must
- See par 80-91 disclose “all relevant material” to the defence in a criminal prosecution BUT
Stinchcombe principles do not apply in the administrative context.
https://www.canlii.org/en/on/onscdc/doc/2020/2020onsc1116/202
0onsc1116.pdf • In May v. Ferndale Institution, 2005 SCC 82 (re disclosure of prisoner
classification tool):
• The Chief and Board submit that they were denied procedural • “the duty of procedural fairness generally requires that the decision-maker
fairness. They argue that, although the PSA allows the discloses the information he or she relied upon. The requirement is that the
individual must know the case he or she has to meet.”
Commission to make an interim order without notice or holding
a hearing in an emergency, it is nevertheless required to act
with procedural fairness. • The question is not whether disclosure is required in administrative
proceedings, but how much disclosure is required in particular proceedings?
What’s at stake?
• Unambiguous statutory authority to issue interim orders without • See statutory regime (e.g., May),Tribunal’s rules, or general procedural codes
notice or a hearing - any common law rights to notice or a (e.g., SPPA, s. 5.1(3), 5.4)
hearing were, therefore, expressly displaced by the language • Courts have held that some circumstances, such as professional discipline and
of the PSA. the possibility of a loss of livelihood, require a high level of disclosure.

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Disclosure Disclosure
1657575 Ontario Inc. v. Hamilton (City), 2008 ONCA 570 Pritchard v. Ontario (Human Rights Com.), 2004 SCC 31
• Hamilton passed by-law evidencing intention to reduce adult entertainment parlours. Mechanism: issuer of licence
can recommend to city council’s licensing committee that license be suspended or revoked for non-use. Triggers • Facts: P filed a HR complaint with the Human Rights Commission, which
hearing. exercised its discretion not to deal with the compliant on the basis that it
was frivolous or vexatious. In bringing the JR, P asked for a copy of a
• Here, appellant’s parlour subject to recommendation, but did not provide grounds, contrary to by-law. legal opinion provided to the Commission.
• CA:
• Issue: whether the opinion prepared by the Commission's in-house
• Disclosure is a basic element of natural justice at common law and, in the administrative context, procedural counsel is subject to solicitor-client privilege?
fairness generally requires disclosure unless some competing interest prevails. The controlling idea: knowing
the case that one has to meet.
• Court: Yes. Solicitor-client privilege arises where: (i) a communication
• The grounds identified simply referred to a series of largely irrelevant documents and sections of the by-law between solicitor and client; (ii) which entails the seeking or giving of
relating to the committee's process and procedures. It would have been impossible for the appellant to extract legal advice; and (iii) which is intended to be confidential by the parties.
from this notice any meaningful understanding of the grounds for the recommendation to revoke its licence. In
fact, the notice itself was misleading.
• Applies with equal force in the in-house, admin or government context.
• Court relied on the fact that the by-law made disclosure mandatory twice.

• Note: “How the decision maker would have responded to any of this changed conduct is irrelevant. It is not for this • Note: Court leaves open the possibility to a statutory override.
court to speculate as to whether the result would have been the same had there been timely and adequate
disclosure.”

Disclosure Disclosure
Mission Institution v. Khela, 2014 SCC 24 • Statutory requirement that the DM give the prisoner “all the
information considered”
• After allegedly arranging a hit on a fellow inmate, inmate was
transferred from a medium security to a maximum security • Need to balance disclosure obligations with the needs of the
federal penitentiary. He challenged that decision by way of authorities in particular circumstances or the rights of other
application for habeas corpus made to provincial superior court, persons.
rather than through statutory grievance process.
• Information can be vetted by a court to determine its materiality
• What was not disclosed: information about the reliability of the and relevance and may be disclosed only to counsel
sources, the specific statements made by the sources, the
scoring matrix that informed Khela’s classification. • Duty of fairness satisfied if a party has sufficient information to
make informed submissions in regard to a particular matter.
• Issue: extent of disclosure required when there is a need to Here, Khela wasn’t given enough information to know the case
protect informant confidentiality he had to meet.

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Oral Hearings Right to be Present

• Oral hearings - often demanded, but seldom required - not usually • The parties have a right to be present throughout the entire
necessary to reach an informed decision - Implications of expense and
delay. hearing process.

• When will the common law require that an oral hearing be provided? • No part of the hearing should take place without all parties
 where a decision depends on findings of witness credibility present unless the party has voluntarily given up their right to
attend.
• SCC decision in Singh v. Minister of Employment and Immigration, in
which the Court held that a person claiming Convention refugee status • A tribunal may proceed in the absence of a party where:
was entitled to an oral hearing. That was because s. 7 right was
engaged, and refugee status depended on whether claimants had a
“well-founded fear of persecution” in their homeland, and this was not
something that could be sorted out on the basis of a paper hearing. • a party has been served but does not attend
• a party continues to disrupt a proceeding
• See Masters v. Ontario and Khan v. University of Ottawa.
• a party “walks out” in protest
• Where legislation does not preclude an oral hearing, however, recourse • the evidence is of a particularly sensitive nature
to constitutional and quasi-constitutional remedies will not be
necessary. The common law may require that an oral hearing be held. (rare)

Right to Counsel Right to Counsel

• There is no right to counsel in the context of administrative proceedings:
British Columbia (Attorney General) v. Christie, 2007 SCC 21 • Court’s practical issues:

• This right is constitutionally protected by s. 10(b) the Charter - limited to

circumstances of “arrest or detention.” To extent beyond that would • The ability to exercise the right to legal counsel would be
make s. 10(b) redundant. extensive and expensive: advice and many or all types of
hearings. To what extent should the courts impose state
• The Court noted that the right to counsel was understood historically as
relevant only in the context of the criminal law, rather than something funding?
required by the rule of law itself, and concluded that there was no
general constitutional right to counsel – but left open may be recognized
in specific and varied situations. • Also, do we want to encourage litigation?
• The right to be represented by counsel is often set out in legislation
(e.g., s. 10, SPPA). This may extend beyond counsel to representation
by a lay representative, depending on the nature of the proceedings. • The Court considered cost to be a primary reason for denying
the existence of such a constitutional right.
• It may be subject to limits – as it may add cost, delay, and related
problems for the administrative decision-maker. See Men’s Clothing
Manufacturers Assn., and Howard v. Stoney Mountain.

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Right to Counsel Rights to Call Evidence and Cross Examine Witnesses

EXCEPTION: • The right to call and cross-examine witnesses is normally part of
• In situations where a deprivation of life, liberty, or security of the the right to an oral hearing.
person is at stake, the principles of fundamental justice may require
the provision of legal representation to an individual.
• Not an absolute right but tribunals often have own rules and limits
• See New Brunswick (Minister of Health and Community Services) v. • SPPA limits – relevant – non-repetitive and non-abusive (10.1, 23(2))
G.(J.), [1999] 3 SCR 46 re whether there is a right to legal aid services • WSIAT – “cross questioning”
where legal aid regime denied services for custody proceedings. • IPC – witness questions directed through adjudicator

• Section 7 was engaged because of the negative impact on • General rule - parties must be afforded a reasonable opportunity
psychological integrity of J.G. This negative impact need not rise to the to present their cases.
level of “nervous shock” or “physical illness,” but must be greater than
“ordinary stress or anxiety.”
• In Innisfil (Township) v. Vespra (Township), Justice Estey emphasized
that the right of cross-examination is not to be withheld on the basis of a
• Not in accordance with fundamental principals of justice given: judgment by the tribunal that it is of limited utility:
complex hearing involving extensive evidence, cross-exams, and
objections; without counsel appellant could not participate effectively
and appellant had already been separated from children for one year “The decision to exercise the right is solely that of the holder of
and gov. was seeking six more months, the right. He, of course, must exercise it at his peril as is the
case in any other administrative or judicial proceeding where
such a right arises.”

Timeliness and Delay Timeliness and Delay

• Problem: even though tribunals are supposed to provide more efficient, • Delay in the administrative process can have significant consequences – Blencoe v. British
Columbia (Human Rights Commission)
less formal, and less expensive justice than courts – often not the case.
• A former minister in a British Columbia government sought an order staying human rights
tribunal proceedings in complaints against him, over 30 months after the date the complaints
• Additionally: administrative decision-makers are not usually under a were filed. During that time his political career came to an end: he was dismissed from
specific statutory timelines for holding hearings or making decisions. Cabinet, expelled from his caucus, and suffered from depression.

• Issue: did the delay breach his s. 7 right?

• There is no Charter right to have an administrative matter heard or

• The majority of the Supreme Court concluded that the harm resulted from bad publicity, not the
determined within a reasonable time – there is no equivalent to the right delay in the proceedings.
to a trial within a reasonable time as in s. 11(b) of the Charter which
applies only to persons charged with an offence. • Court held that, in some circumstances, delay in the administrative process might rise to the
level of a deprivation of liberty or security of the person under s. 7 of the Charter, which would
violate the right if not in accordance with the principles of fundamental justice.
• However, courts may use mandamus where, among other things, there
• In addition, the majority concluded that “undue” delay in an administrative proceeding might
is unreasonable delay. impair the fairness of a hearing, which can be remedied under admin law (e.g., essential
witnesses or evidence lost, or memories faded).

• Also, statutes may codify timelines. See s. 21.1(2), SPPA. • Also, evidentiary concerns aside, delay may result in a denial of PF or abuse of process (e.g.
significant psychological harm, or stigma). The delay must be “clearly unacceptable” and
amount to “significant prejudice.”

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Timeliness and Delay Timeliness and Delay

• Blencoe v. British Columbia (Human Rights Commission) – cont’d
• The minority emphasized the importance of a contextual inquiry into the
problem
• The minority of the Court - dealt with the matter solely on administrative
law grounds and set out three considerations that had to be balanced in • In the context of administrative proceedings, there were important interests,
considering complaints of administrative delay: apart from those of persons complaining of delay, that had to be
considered—in Blencoe’s case, the interests of the women who complained
1. the time taken compared to the inherent time requirements of the matter of sexual harassment.
before the particular administrative body, which would encompass legal
complexities (including the presence of any especially complex systemic issues)
and factual complexities (including the need to gather large amounts of • Staying the ability of the human rights tribunal to hold the hearing would
information or technical data), as well as reasonable periods of time for deny the complainants their right to have their complaints heard. Thus,
procedural safeguards that protect parties or the public; although they considered that the delay in Blencoe’s case constituted an
abuse of process, the minority of the Court considered that a stay of
2. the causes of delay beyond the inherent time requirements of the matter, which proceedings was inappropriate and would have made an order to expedite
would include consideration of such elements as whether the affected individual the proceedings instead.
contributed to or waived parts of the delay and whether the administrative body
used as efficiently as possible those resources it had available; and
• Following Blencoe, it is clear that delay in providing a hearing—or,
presumably, in rendering a decision—may breach the duty of fairness and
3. the impact of the delay, considered as encompassing both prejudice in an may even rise to the level of a Charter breach.
evidentiary sense and other harms to the lives of real people impacted by the
ongoing delay. This may also include a consideration of the efforts by various
parties to minimize negative impacts by providing information or interim • But the normal remedy for delay is likely to be an order in the nature of
solutions. mandamus, requiring the tribunal to perform its duty expeditiously.

The Duty to Give Reasons The Duty to Give Reasons

• Historically – no duty on administrative decision-makers to give reasons but this changed • Baker leaves open large discretion for courts to require reasons.
after Baker - Justice L’Heureux-Dubé stated simply:

• In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of • Contemplates flexibility in complying with the duty to give reasons –
procedural fairness will require the provision of a written explanation for a decision. The provide “some form of reasons” and, as a result, reasons may vary in
strong arguments demonstrating the advantages of written reasons suggest that, in cases length and formality in different circumstances.
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. • Indeed, in Baker the Court accepted that informal notes prepared by one
immigration officer for the advice of another satisfied the duty.
• Reasons are not required for all decisions; rather, they are required in “certain
circumstances.” • Two main concerns on procedural review:
1. Reasons are required if a particular decision has “important significance” for
an individual, because public actors demonstrate respect for those affected by
their decisions by justifying the decisions they make. 1. Are reasons required? There may be a failure to provide reasons in
circumstances in which a court concludes that reasons were
2. Reasons are also required if a statutory appeal process exists to facilitate the
required.
workings of that process.
2. Were the reasons provided adequate? Questions may arise as to
• It is difficult, if not impossible, to determine whether to appeal a particular decision and which the adequacy of reasons proffered in particular circumstances.
arguments to make if no explanation is provided for that decision.

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The Duty to Give Reasons

The Duty to Give Reasons
• The Court looked at the duty to provide reasons in Newfoundland and
Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury
Congrégation des témoins de Jéhovah de Board), 2011 SCC 62
St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48
• The appellant Nurses’ Union argued that the labour arbitrator, who had
• Facts: Municipality refused to approve a rezoning provided some reasons, nonetheless provided reasons that were so
application to allow the Congregation to build a place of inadequate that they rendered the decision-making process unfair, thus
engaging the correctness standard of review.
worship – without providing any reasons.
• Issue: were reasons owed? • The Supreme Court disagreed, and held that where reasons are
provided, the adequacy of the reasons is not reviewable as a matter of
• Court: there’s no doubt that PF was owed given the procedural fairness and is not a freestanding ground of review.
decision affected the Congration’s rights and interests.
• In other words, where applicants allege a deficiency in reasons, their
• Baker factors suggest reasons owed: concern about remedy is substantive review and, in that review was conducted on the
arbitrariness, lack of appeal procedure, decision was reasonableness standard.
important to Congregation, legitimate expectation that
• The point: if there are reasons – then there is no breach in procedural
application would be thoroughly vetted and considered » fairness on that basis.

The Duty to Give Reasons The Duty to Give Reasons

• Conceptual wrinkle: Alberta (IPC) v. Alberta Teachers’ Association, 2011 • All of this is to say that much requires clarification in future cases.
SCC 61, which dealt with an “implied decision.”

• Facts: Alberta IPC received complaint that teachers’ assn. disclosed private • At least this much is clear: a wholesale failure to provide reasons
information. At the time, PIPA required the IPC to complete an inquiry
within 90 days unless it had notified the parties it needed longer. The IPC will likely constitute a breach of the duty of fairness.
took 22 months to extend the time to complete inquiry. Seven months later
IPC adjudicator found assn. breached PIPA.
• Following Newfoundland Nurses, however, the Court will not be
• Issue: on JR, the assn. argued for the first time that the IPC had no concerned with the adequacy or sufficiency of reasons in
jurisdiction given the failure to extend 90-day limit on time.
determining whether the duty to provide reasons has been met.
• Court:
• Found an “implied decision” on the basis of the IPC’s past case law. Note: your
reasons may lie elsewhere. • The focus will be on the substantive question: do the reasons,
such as they are “allow the reviewing court to understand why the
• Emphasized that courts are not to reformulate a tribunal’s reasons in order to tribunal made its decision and permit it to determine whether the
render them reasonable.
conclusion is within the range of acceptable outcomes”?
• It may sometimes be necessary to return a decision in order to allow a decision-
maker to provide reasons on a particular matter, thereby allowing the Court to
defer on an informed basis if the decision is reviewed subsequently.

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 Determining the content of the duty Right to an Unbiased Decision Maker

Checklist Overview
• The right to an unbiased decision maker is the second broad
• If there is an enabling statute, then that is where you go to determine the class of procedural obligations.
content of the duty

• If the statute is NOT a complete procedural code or is there room or need • Bias stems from individual conduct by the decision maker, like
to supplement with the common law then consider: attitudinal bias or prejudgment, pecuniary interest, past conduct
etc.
1. Right to be heard
• Notice, Disclosure, Oral hearings, Right to be Present, Right to
• Bias also stems from the institution itself – the decision making
counsel, Rights to call evidence, Timeliness and delay, Duty to give
reasons body as a whole (the tribunal), and its insufficient
independence or institutional bias.
2. Right to an unbiased decision maker:
• Issues re: Individual bias • BUT be aware that it may be difficult to challenge on the basis of
• Issues: re: Institutional bias / Insufficient independence institutional bias if the statute creates the administrative regime -
common law cannot prevail over a statute.

Bias – General test

Bias and Independence
• Administrative tribunals must be free from an appearance of bias - General Test for Bias
that is, a reasonable person must conclude that an administrative • The apprehension of bias must be a reasonable one, held by
decision-maker is sufficiently free of factors that could interfere with his
reasonable and right minded persons, applying themselves to
or her ability to make impartial judgments (commonly known as the
"reasonable apprehension of bias" test) the question and obtaining thereon the required information.

• Independence is one important indicator of whether there is an

appearance of bias in an administrative body. Although administrative KEY CASE - Committee for Justice and Liberty v. National
independence is not required to be as strict as judicial independence, Energy Board, [1976] 1. S.C.R. 369 at p. 394:
there are still certain minimum requirements such as security of tenure • … the apprehension of bias must be a reasonable one, held by
and independent administrative control. However, administrative
independence is not guaranteed under the constitution, and can be
reasonable and right minded persons, applying themselves to
ousted by statutory language. the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is “what would an
• Once a court has determined that there has been a reasonable informed person, viewing the matter realistically and practically
apprehension of bias, the decision in question must be void ab initio, –and having thought the matter through – conclude. Would he
as there is no remedy for the damage created by the apprehension of think that it more likely than not that [the decision maker]
bias. whether consciously or unconsciously, would not decide fairly.

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Bias Individual Bias

• Allegations of reasonable apprehension of bias exist in 2
major forms in administrative law:
1. Antagonism during the hearing
(1) perceptions of individual bias, which deal with the 2. Association between party and decision-maker
impartiality of individual decision-makers; and 3. Involvement of decision-maker in earlier stage of
process
(2) perceptions of institutional bias and/or a lack of 4. Prejudgment by decision-maker (as evidenced by
independence, which deal with whether reasonable statements made before, during or after the
perceptions of partiality regarding the decision-making hearing)
body as a whole can be raised in a substantial number of 5. Monetary/other personal interest
cases.

Individual Bias Individual Bias

1. Antagonism During Hearing 2. Association with a Party

Unreasonably aggressive questions or critical commentary Marques v. Dylex Ltd., (1977), 81 DLR (4th) 554 (Div. Ct.)
• The employer challenged a decision of the Ontario Labour Relations Board to certify a
Baker union because one of the members of the board had been a lawyer of a firm that acted
for a union that became part of the union that was certified (even though the board
• A "reasonable apprehension of bias" that Officer Lorenz’s decision was based not on the evidence but on the
facts that Baker was a single mother with several children and had psychiatric illness, and thus would be
member had no contact with this specific client). The Court did not find a RAOB despite
“tremendous strain on our social welfare systems for (probably) the rest of her life.” the connection and previous association. There was no RAOB because the people
chosen to be chairs will have labour relations expertise and will likely know the parties.
Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856 In this case the court found that context is important.

• Adjudicator demonstrated “open disbelief” of appellant, and cross-examined him about whether he was See also Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 2130 (CanLII)
associated with a terrorist organization

S.G. v. Criminal Injuries Compensation Board, 2016 ONSC 7485 (Div. Ct.) • Tribunal members are selected because they have experience, knowledge and training of
the issues they adjudicate. That may include representing parties in similar matters.
• “the member asked a number of questions that reflected rape myth stereotypes about the reactions of victims Tribunal finds that reasonable and well-informed person would understand the change in
of sexual assault. For example, he repeatedly asked why the appellant had not screamed or run away, both
questions that reflect rape myths that would be an improper line of cross-examination in a criminal trial.” role that occurs when advocate becomes adjudicator.
• “the behaviour of the member during the hearing, coupled with the tone and line of questioning, gives rise to
concerns about the fairness of the proceeding. He was aggressive in tone, and he demonstrated impatience,
if not skepticism during the appellants testimony.” However, see Terceira, Melo v. Labourers International Union of North America, 2013
ONSC 3344 (Div. Ct.)
• OLRB decision overturned given that the board’s Vice-Chair had previously advised on
the parties on very similar, if not identical, issues.

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Individual Bias Individual Bias

2. Association with a Party 3. Involvement at Preliminary Stage

• In Committee for Justice and Liberty, the National Energy Board had a hearing
United Enterprises Ltd. Saskatchewan (Liquor and to consider competing applications for a pipeline. The Chairman had previously
Gaming Licensing Commission), [1997] 3 WWR 497 been part of a group that had set up one of the companies competing for the
pipeline. In determining whether the chairman’s prior involvement in the group
• Court found ROAB given the “repetition and cumulative raised a reasonable apprehension of bias, The Court considered:
effect” of the manner in which the panel dealt with • The nature and degree of prior involvement. In this case it had been
VERY close (it was a small study group)
respondent’s counsel, including arriving together, • Recency or the time past since the prior involvement. Only two years had
refferrign to him by first name, and extending an passed since the chairman left the study group.
invitation to attend a BBQ.
• The relationship between the Chair and the company was personal. It was also
extensive, specific, and recent.
Gedge v. Hearing Aid Practitioners Board, 2011 NLCA 50
• Court of Appeal found a ROAB given the relationships • In some cases the statute may actually authorize prior involvement. For
example, in Brosseau v. Alberta Securities Commission, [1989] 1 SCR 301 the
between the tribunal’s three members and the applicant: Court found that there can be overlapping functions if there is statutory
the applicant’s primary competitor, the girlfriend of a authorization.
former business partner, and a member of the public.

Individual Bias Individual Bias

4. Prejudgment by decision‐maker - Attitudinal Bias
3. Involvement at Preliminary Stage • Predisposition toward outcome
• Has the decision‐maker or the organization to which he/she belongs
Gardner v. Ontario Civilian Commission on Police Services, 2004 CanLII 2540
(Div. Ct.) demonstrated in the past a particular attitude towards this issue that is likely
to create a reasonable of apprehension of bias in the present case?
• A hearing was held before a panel consisting of three members of the
Commission. All three panel members had participated in Commission • Is it implicit in the type of work done by this agency that previous
meetings at which an investigative report was tabled and discussed and at statements ought not to automatically exclude the person from being
which the appellant's credibility was the subject of adverse comment. The involved in a determination of a subsequent similar issue?
panel found that the appellant was guilty of misconduct.
• The appellant appealed, arguing that the composition of the panel gave rise to Nova Scotia (Attorney General) v. MacLean, 2017 NSCA 24
a reasonable apprehension of bias and that the panel therefore lost jurisdiction
to conduct the hearing. Court agreed.
• Past comments made by the Chair were challenged as an indication of
bias.
Township of Vespa v. Ontario (Municipal Board), (1983) 43 OR 680 (Div. Ct.)
• Even though the judicial review was premature, the Court of Appeal heard
• ROAB after members of the board reheard case after a successful JR. it, as the matter had been ongoing since 2014.
• The Court found that the adjudicator’s decision was correct. Judicial
Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 (Div. Ct.) impartiality has strong presumption and adjudicator’s letters to the
• The mere fact that an adjudicator determined a request for reconsideration of government 15 years earlier were too remote in subject, time and nexus to
his or her own decision does not, in and of itself, create a ROAB since the the parties to overcome it.
legislative scheme made requests discretionary.

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Individual Bias Individual Bias

4. Prejudgment by decision‐maker - Attitudinal Bias 4. Prejudgment by decision‐maker - Attitudinal Bias
• In the 1980 ONCA case of Paine v. University of Toronto the court • Pre-judgment may also emerge via comments made in a political context.
found that the context allowed for tolerance of opinions from the
decision makers. This case involved the tenure evaluation process of
a professor. • In the case of Old St. Boniface – a large condo development was being
built. A City Counselor supported the development at committee. There is
an election and he sits on a committee for the rezoning hearing.
• Paine was denied tenure after a peer-review process. One of the
reviews was negative and this person had maintained this attitude for • The issue in this case is whether a RAOB precludes this rezoning
quite some time; this same person ends up on the tenure committee decision because of attitudinal predisposition.
after having expressed that opinion. The court held there was no
RAOB
• Sopinka writing for the majority wrote that - Municipal counselors, in cases
of attitudinal bias and pre-judgement, will not be disqualified unless there
• The court found that the process was clear – it involved peers and is evidence of having a closed mind and there has been an expression
everyone knew from day 1 that they are being watched/considered for of final opinion that cannot be dislodged.” The DM must be amenable to
tenure. It’s inevitable that people with pre-conceived ideas will end up persuasion so that representations must not be futile. The case also noted
on tenure committees. Therefore, because of the nature of the that decisions made by elected people are not the same as judicial/quasi-
process, there was a great deal of tolerance for general opinions. judicial decisions. This more on the legislative or policy end of the
spectrum.

Individual Bias Individual Bias

5. Monetary or other personal interest

• The general rule is that any direct interest – pecuniary or otherwise – will give rise to the Other Examples of Possible Individual Bias
disqualification of a decision maker.
• Meets with one party in the absence of other parties
• In the 1984 FCA case of Energy Probe and Canada (Atomic Energy Control Board) the
court stated that the test in regards to a pecuniary interest is that it must be “sufficiently • Has a friendship with someone with invested interest in the case
certain to arise”
• Is related to someone with invested interests in the case
• The Board was deciding whether to renew Ontario Hydro facility. Energy Probe (an • Has financial interest in the outcome of the case
interest group) claimed that Olsen (on the Board) was biased – he owned a cable
company who sold cables to Ontario Hydro. The issue was whether there was a RAOB • Is part of an association with invested interest in the outcome
on the basis of a direct pecuniary interest?
• Shares opinions before evidence and arguments are heard
• The court held there was no direct pecuniary interest. For a direct pecuniary interest to • Persistently favours one party during the hearing process
constitute bias, there has to be a fairly serious level of certainty that the decision maker
will benefit or suffer economically before there will be found to be a direct link and an • Expresses a strong like or dislike for a party/witnesses
automatic disqualification.
• Has been in litigation against a party/witness in a proceeding
• Any direct interest – pecuniary or otherwise – will give rise to disqualification
• Has had a significant professional relationship with a
• Energy Probe party/witness
• Matsqui Indian Band
• Burnbrae Farms • Accepts gifts or favours from a party or witness
• Moskalyk‐Walter

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Impartiality and Independence Impartiality and Independence

• Impartiality refers to a state of mind or attitude of the
tribunal in relation to the issues and the parties in a
A brief review …
particular case. The word “impartial” connotes absence of
• Individual bias and impartiality of a decision-maker is bias, actual or perceived.
determined by examining his or her state of mind.
• Independence reflects or embodies the traditional
• Institutional bias and impartiality refers to a state of mind or constitutional value of judicial independence. As such, it
attitude of the tribunal in relation to the issues and the connotes not merely a state of mind or attitude in the actual
parties in a particular case. exercise of judicial functions, but a status or relationship to
others, particularly to the executive branch of government,
• Independence of a tribunal is a matter of its status and
that rests on objective conditions or guarantees.
structure.
Independence concerns the insulation of tribunal members
from outside influence, something to be judged by reference
to security of tenure and remuneration and security from
external interference.

Institutional Bias Institutional Bias

Test – The test for institutional bias, which comes from 2747-3174 • Note that a statute may require some amount of partiality = a built-in-bias
– this is fine as long as it does not violate the Charter
Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 SCR 919 is:
• The determination of institutional bias presupposes that a well-
Brosseau v. Alberta Securities Commission
informed person, viewing the matter realistically and practically --
and having thought the matter through -- would have a reasonable • Brosseau was a solicitor who prepared the prospectus of a company that
later went into bankruptcy. The Alberta Securities Commission launched
apprehension of bias in a substantial number of cases. an investigation into Brosseau’s actions. Brosseau argued that the
Commission suffered from institutional bias due to Chair's multiple
functions, which allowed him to initiate investigations, prosecute people,
• Court found bias on an institutional level. Case also discussed lack of and then act as a judge on the panel determining their case, i.e. he/she
independence. involved at both the investigatory and adjudicatory levels. The
Commission disagreed – they argued that while not specifically authorized
 ok – The members appointed for 2, 3 or 5 years by statute, implicit authority for the investigation could be found in the
 ok - Members could be dismissed for cause and could challenge general scheme of the Securities Act.
their dismissal in court • In some instances, an overlap in functions (which is generally not
X no - Overlapping role of lawyers in both prosecution and permitted on account of bias) is a necessary element to fulfilling an
decision maker's mandate. Provided that the particular decision-maker is
adjudication – no not acting outside its statutory authority (and the governing statute is
X no - Overlapping roles of directors constitutional), an overlap in functions may not give rise to a reasonable
apprehension of bias.

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Institutional Bias Institutional Bias

1. Closeness between an agency / tribunal and 1. Closeness between an agency / tribunal and
government government
2. Sub-delegation
• Some issues to consider:
3. Intra‐Agency Consultation
4. Consistent Decisions and Guidelines • How much power does a chair have over appointing panels?
• Are agency staff employed by the agency or the government?
5. Multiple and Overlapping Functions: of counsel, of
decision-maker • How much does an agency have to follow government policy?
• Is the agency chair subject to a performance evaluation?
• Does the agency’s government department decide its budget?

Institutional Bias Institutional Bias

1. Closeness between an agency / tribunal and government 2. Sub-Delegation / Delegation of Authority to Decide
• Administrative decision-making bodies have been
created in a way that leaves them connected to
government. Most have a link with the executive branch • If you are a decision-maker, can you delegate your duty to decide to
of government through a minister of Cabinet. Generally, someone else?
under their enabling statutes, tribunals, or at least their  Permitted when a statute states that a ministry “may” do something,
chairs, are required to maintain some contact with this it is specifically authorized, or it is implied
minister.  Otherwise, whether it is allowed depends on the nature of the power
being delegated
• Users of the tribunal might be concerned that the • Improper delegation renders decision unlawful
minister might use these opportunities to dictate,
whether explicitly or implicitly, how particular files
should be decided • When a legislative provision delegates some decision-making power to
a delegate, that delegate may not in turn ask a sub-delegate to
exercise the decision making-power in their place.

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Institutional Bias Institutional Bias

2. Sub-Delegation / Delegation of Authority to Decide 3. Intra‐Agency Consultation – “s/he who hears must decide”
• Suresh – deportation decision – serious issues – Minister had to be the
one to make the decision and give reasons – not in the form of • The issue of consultation poses a challenge to administrative
advice/suggestion of an immigration officer. tribunals who want to foster coherence and consistent decisions -
but does it breach the natural justice principle – s/he who hears must
decide?
• Ontario (Director, Disability Support Program) v. Surdivall, [2014] O.J. No. 1505
(CA), leave to appeal to SCC refused.
• It is improper for:
• The Court of Appeal for Ontario found that the Social Benefits Tribunal had the • Anyone who missed part of the hearing to help to decide
discretion to reduce the amount of an overpayment owed by a recipient to the
Director of the ODSP, despite the fact that the relevant statute described any • Anyone associated with a tribunal to pressure the panel
overpayment as a “debt owed to the Crown”.

• The Court of Appeal found that the Tribunal had this discretion because the • Exceptions and limits:
Tribunal has the powers of the Director, and the statute uses the word “may” in • If a member of a panel cannot complete the hearing, the other
describing the mechanisms available to the Director in recovering an members may decide
overpayment.
• Parties may agree to have a new member read transcripts/agreed
statements of the evidence to complete the hearing

Institutional Bias Institutional Bias

3. Intra‐Agency Consultation – “he who hears must 3. Intra‐Agency Consultation – “s/he who hears must
decide” decide”

• Trilogy of cases set out the principles: Consolidated • Consolidated Bathurst

Bathurst, Tremblay, Ellis Don where the SCC says • Board member could request full board meeting where contemplating a
consultation is good: change in policy
• Large, busy tribunal; consistency is important; privative clause prevents • Had to present draft reasons
courts from dealing with inconsistencies; tripartite structure of board implies • No compulsion (no minutes, not mandatory, no vote)
exchanges of views
• Dissent did not believe there was a real distinction between policy and
But: fact
• Must be initiated by the adjudicators themselves, voluntary
“Full board meetings are a practical means of calling upon the
• Must be limited to questions of policy and law accumulated experience of board members when making an important
• Evidence cannot be re‐assessed – facts taken as found and if new policy decision and obviate the possibility of different panels inadvertently
issues/facts introduced must notify parties and permit them to comment deciding similar issues in a different way. The rules of natural justice
• Even on questions of law and policy, the decision‐makers must be free to should reconcile the characteristics and exigencies of decision making by
take whatever decision they deemed right in their conscience – no specialized tribunals with the procedural rights of the parties.”
pressure

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Institutional Bias Institutional Bias

3. Intra‐Agency Consultation – “s/he who hears must
3. Intra‐Agency Consultation – “s/he who hears must decide”
decide”

• Impacts on deliberative secrecy:

• Tremblay
• Ellis Don
• “Consensus table” process for social benefits decisions
• Draft decision revealed a change in a factual finding – an attempt to
• Flawed because creates systemic pressure:
examine panel members was dismissed
• Effectively compulsory when counsel suggests it
• Deliberative secrecy important to protect value of consultative process,
• President may initiate
independence
• A vote is taken, attendance and minutes kept
• Without evidence that facts were discussed, must presume they were
• President could resolve disagreement even though he did not hear the case
not
• In this case reasonable apprehension of bias because he had
• Dissent: the change is enough evidence of the improper discussions
expressed an opinion from the outset

Institutional Bias Institutional Bias

3. Intra‐Agency Consultation – “s/he who hears must decide” 3. Intra‐Agency Consultation - Involvement of Agency
Counsel
• RECENT CASE – Mary Shuttleworth v. Licence Appeal
Tribunal, 2018 ONSC 3790 (CanLII)
• Not appropriate for lawyers to have overlapping functions
(investigation, referral, prosecution, assistance to
[64] The review was conducted by a person at a superior level of authority
without a request from the adjudicator to do so. There is no evidence as to decision‐maker)
the nature of the changes made by the executive chair although counsel for • Counsel’s advice to the agency is subject to solicitor‐client
the Tribunal swore that decision-makers are free to make whatever decision privilege when given outside hearing context
they wish.
• If advice given during course of a hearing, parties must be
[65] The executive chair’s review is in breach of the first requirement set out aware and have opportunity to respond
in Consolidated Bathurst and applied in Ellis-Don that consultation cannot • Counsel must not appear to be in fact running the hearing
be imposed by a superior level of authority within the administrative
hierarchy, but can only be requested by the adjudicator herself. This breach • Decisions must be made by decision‐maker
creates a reasonable apprehension of lack of independence."
• Counsel must not be seen to be taking sides
• Counsel cannot provide advice during deliberation phase, but
• http://sossinblog.osgoode.yorku.ca/2018/10/shuttleworth-
adjudicative-ethics-and-the-modern-tribunal/ can assist in preparation of reasons

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Institutional bias Institutional Bias

3. Intra‐Agency Consultation – Involvement of Agency Counsel: 4. Consistent Decisions and Guidelines
• Khan - Assistance Drafting Reasons
• College of Physicians Discipline Committee • Guidelines govern internal operations of a tribunal. Attempts to
• Decision‐maker must retain complete control over the result apply tribunal's collective wisdom in interpreting statute or
• There should be no compulsion to have lawyer involved answering policy questions. Balances the need for individual
• Role of counsel was not to provide legal advice or participate in deliberations, but to
assist in the expression of the reasons
hearing versus consistency.
• No evidence that new facts, arguments or legal issues were being considered
• Important that this was review/revision of a draft, not an independent piece of work • Guidelines should be subject to public consultation process
before they are implemented (Immigration and Refugee Board
• Krever (FCA) - Drafting Reasons
News Release). Guidelines receive legitimacy where there is
• No reason for concern about counsel writing inquiry report, as long as it is reviewed and
the Commission adopts it as his own transparency.
• Not a decision
• Must be realistic
• Guidelines should be published and made available to parties
• Bovbel - Review of Reasons
before hearing.
• Review of all immigration decisions by legal department
• Benefits: a lay tribunal applying complex area of law; not about facts but about ensuring
consistent application of law to facts
• Note that common law has been unsuccessful at applying
• Allowed to look at facts only to the extent that decision’s review reveals an inconsistency
procedural fairness concepts to rulemaking - therefore public
• No evidence that counsel is not free to decide or that review process has led to abuse consultation becomes substitute for judicial review.

Institutional Bias Institutional Bias

4. Consistent Decisions and Guidelines 5. Multiple and Overlapping Functions: of counsel, of decision-
• Thamotheram
maker
• IRB guidelines regarding “reverse questioning”
• Guidelines do not fetter discretion when there is an option not to • Overlapping functions contribute to institutional bias when those
follow them who recommend, investigate or prosecute proceedings against a
• Requirement to explain deviation is not coercive but rather merely person also decide whether to take away the person’s rights,
assists with coherence privileges, or benefits
• Monitoring of adherence to guidelines is permissible where not
mandatory or not frequent or consistent
• A clear separation of roles avoids the appearance of bias
• In this case, was not coercive and no evidence of sanction being
threatened • Quebec Regie

• Cdn Telephone Employees • A lawyer could be involved in all stages, including referral,
• General “directives” by Human Rights Commission in relation to prosecution, and preparation of reasons
pay equity were authorized by statute to have force of law
• The same director could both decide that a hearing was to be held
• This does not compromise independence since a Tribunal is and then hear the case
bound to follow the law
• Earlier decisions had found that mandatory guidelines violated • No apparent safeguards
independence where they were not statutorily permitted

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Lack of Independence Lack of Independence

• The starting point for examining institutional independence is by looking at
• Independence is about the structural or institutional judicial independence.
framework which secures this impartiality, not only in the
minds of the tribunal members but also in the perception • 3 objective structural conditions
of the public.
 security of tenure
 financial security
• Although administrative independence is not required to  administrative (or institutional) control
be as strict as judicial independence, there are still
certain minimum requirements, such as security of • In the context of the courts, these conditions reassure the public that the
tenure and independent administrative control. possibility of interference in judicial decision making by the executive and
legislative branches of government has been reduced, if not eliminated.

• However, administrative independence is not guaranteed • Judges also have adjudicative independence - the ability of a decision-
under the constitution like the courts, and can be ousted maker to decide, free of inappropriate interference by other decision-
makers. Such inappropriate interference may include, for example,
by statutory language. pressure to decide a certain way or substitution of another’s decision for
one’s own.

Lack of Independence Lack of Independence

The test for adequate tribunal independence:
• This flexible method was stated concisely in Canadian Pacific Ltd. v.
Matsqui Indian Band by Lamer C.J.:
• Valente v. The Queen was the first Supreme Court case in
Canada to suggest the idea that the guarantees for judicial
• [W]hile administrative tribunals are subject to the Valente principles,
independence could also be applied to a variety of
the test for institutional independence must be applied in light of the
tribunals. functions being performed by the particular tribunal at issue.

• Administrative tribunals do not have to meet the same • The requisite level of institutional independence (i.e., security of
degree of independence as the courts do. tenure, financial security and administrative control) will depend on
the nature of the tribunal, the interests at stake, and other indices of
independence such as oaths of office.
• The methodological approach taken by the courts when the
independence of an administrative tribunal is challenged
consists of applying the guarantees of tribunal
independence in a flexible way to account for the functions
performed by the tribunal under scrutiny.

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Lack of Independence Lack of Independence

– Security of Tenure – Security of Tenure
• The SCC decision of Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor • Ocean Port Hotel
Control and Licensing Branch) examined the degree of independence that is required of • The case attempted to lay to rest the controversial issue of whether “at
members sitting on administrative tribunals empowered to impose penalties. pleasure” appointments provide a satisfactory degree of independence
for decision-makers sitting on tribunals that impose penalties.
• Ocean Port Hotel • This was the Supreme Court’s first opportunity to address the crucial
• The B.C. Liquor Appeal Board was a liquor-licensing body that could impose sanctions issue of “at pleasure” appointments which were clearly not as secure as
and remove licences upon finding that a licensee had contravened the province’s Liquor fixed-term appointments.
Control and Licensing Act.
• Provides reasons why administrative tribunals should not need the same
• The RCMP had reported that Ocean Port Hotel was responsible for five incidents that degree of independence as courts and clearly indicated that there is no
violated the Act and the terms of its liquor licence. freestanding constitutional guarantee of independence for administrative
• The Liquor Control and Licensing Branch, a regulatory branch established under the tribunals.
Act, imposed a two-day suspension on Ocean Port’s liquor licence.
• This is because administrative tribunals form part of the executive branch
• The Liquor Appeal Board held a hearing de novo and confirmed the suspension, finding of government. The Court held that because constitutional guarantees of
that the evidence supported four of the five alleged infractions. independence serve primarily to protect the judiciary from interference by
• On appeal to the B.C. Court of Appeal, Ocean Port argued that the Liquor Appeal Board the executive, they cannot work to protect tribunals from the branch of
lacked sufficient independence to render a fair hearing. government of which they are a part.
• It submitted that the Board’s decision was therefore invalid. The hotel took issue with • At the same time, Supreme Court and other Canadian jurisprudence has
the terms of appointment of the members of the Liquor Appeal Board. The Act indicated
that the chair and the members of the Board were to serve “at the pleasure of the
shown a willingness to expand the notion of “court” to allow litigants
Lieutenant Governor in Council.” before some lesser judicial entities the benefits of constitutional
guarantees of independence.

Lack of Independence Lack of Independence

– Security of Tenure – Security of Tenure
• Ocean Port did NOT however address the fundamental problem with “at How to resolve Ocean Port Hotel and Keen?
pleasure” appointments.
• Ocean Port Hotel affirmed that a variety of tribunal appointments can satisfy the
requirement of security of tenure so long as there are no constitutional standards at
• In Keen v. Canada, Canada’s Nuclear Safety Commission President play and the terms of the appointment derive from constitutionally valid legislation.
Linda Keen was removed from her job over a decision to keep a nuclear
power plant closed for its failure to meet safety standards. • Keen shows that, as a practical reality, governments still can, and do, interfere with
administrative decision making because of improper understandings about tribunal
accountability
• Ms. Keen applied to the Federal Court for judicial review. At issue was
whether she received adequate procedural fairness in the manner of her • The Federal Court was faithful to the Supreme Court’s guidance in Dunsmuir, which
dismissal. provided that a lower level of procedural fairness is required on termination of an
“at pleasure” appointee – court in Dunsmuir stated - with respect to “at pleasure”
appointments, procedural fairness is needed “to ensure that public power is not
• The Court held that the circumstances of her termination were sufficient exercised capriciously.
to satisfy the requirements of fairness for an “at pleasure” appointment
(which is how her appointment as president was characterized). The
governor in council’s dismissal was therefore upheld.

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Lack of Independence Lack of Independence

– Security of Tenure – Security of Tenure
• In Bell Canada v. Canadian Telephone Employees
Association, 2003 SCC 36, a challenge was made Alex Couture v. Canada (Attorney General), 1991 CanLII
to the Chair’s power to extend appointments that 3120
were set to expire during the course of a hearing.
• The Quebec Court of Appeal found that part time
appointment would be problematic if other activities of the
• The Court found that extending the appointments member were likely to put them in conflict. The court also
did not offend independence, because the decision pointed to other safeguards that would assist regarding
was made by the Chair, not the Minister. bias in statute – such as

• The Chair’s ability to extend the appointments did • Oath of office

not offend impartiality, because there was no reason • Limit on number of re-appointments
to believe that members would feel pressure to • Specific prohibition of financial interests
adopt the views of the Chair. • Removal was for cause

Lack of Independence Lack of Independence

– Financial Security – Financial Security
Idea is to ensure compensation decisions are not arbitrary or • In the Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3
otherwise susceptible to influence decision‐making and that there
is no need to supplement income • The tribunal members had no guarantee of any salary at all –
theoretically could decide not to pay if do not like decision
• Judges have a fixed salary and the decision is made by
remuneration commission – a legal process for determination of • The SCC found that there would have a reasonable apprehension that
members of the appeal tribunals were not sufficiently independent.
salary, with no room for arbitrary changes by government
• Three factors lead to this conclusion: (1) the complete absence of
• In general, a Tribunal must have fixed salary and decisions financial security for members of the tribunals; (2) the complete
should be relatively arms’ length from government absence of security of tenure and (3) the fact that the tribunals, whose
members are appointed by the Band Chiefs and Councils, are being
asked to adjudicate a dispute pitting the interests of the bands against
outside interests.
• In the previously discussed Bell Telephone case, Human Rights
Tribunal remuneration was set by the Human Rights
• Effectively, the tribunal members must determine the interests of the
Commission, a party that appeared before it. This was found to very people, the bands, to whom they owe their appointments.
be not acceptable and was ultimately changed.

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Lack of Independence
Lack of Independence – Administrative Control
– Administrative Control
• Alex Couture – Competition Tribunal
• Administrative control concerns the manner in which the affairs of the court /
tribunal are administered/ • Lower court concerned because Governor in Council sets
rate and privy council received performance appraisal
• There should be minimal government control in, for example, allocation of • Appeal court satisfied that policy creates enough distance –
resources or assignment of cases. there was an advisory group for salary

• Tribunals generally have control over cases, but resource issues are closer to • Katz
government.
• Lawyers appointed to stock exchange disciplinary committee
Québec Inc. v. Quebec (Régie des permis d’alcool) – they had no fixed terms and no guarantee of pay
• SCC distinguished self‐regulatory function from the
• The respondent in Régie challenged the board’s administrative control. It argued adjudicative function in Matsqui, and focused on how tribunal
that there were so many points of contact between the liquor board and the actually functioned in practice
minister responsible for the board’s enabling legislation that the board’s institutional
• No evidence of arbitrary removal ‐‐ people sit until they resign
independence was threatened. Court held - administrative control was also
sufficient – it was not unusual for a minister to have many points of contact with a • No evidence of payment issues, no evidence of interference
tribunal under its responsibility. Court noted - no evidence had been provided to by executive – chairs selected by a manager, on rotation –
show that the minister could affect the decision-making process. Informed person would not be concerned about
independence

Raising an Allegation of Bias Tribunal Response to an Allegation of Bias

• If an adjudicator is concerned there may be an appearance of bias, he
• Allegations should be raised as early as possible or she may:
• The best way to raise the issue will depend on the  Ask the tribunal chair to assign a different adjudicator
circumstances of each case  Informally disclose the facts to the parties and volunteer to stand
aside
• The court will consider a party to have waived the right to  Decide that it is in the public’s interest to continue to hear the case,
argue an allegation of bias if they do not raise it during if he or she believes that there is no actual bias or reasonable
apprehension of bias (i.e./ hearing has started and there would be
the hearing substantial cost or delay to step down)
• The right is NOT waived if a party raises an allegation but
the member continues to hear the case • The responsibility to decide lies with the adjudicator against whom
allegation is made, and should resist natural tendency to step aside
“...it is my duty to determine whether or not I ought to recuse myself, not
by simply agreeing to refrain from hearing the matter because an
objection is raised, but by reference to established legal principles.”
De Cotiis v. De Cotiis, 2004 BCSC 117 (CanLII), 2004 BCSC 117

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Tribunal Response to an Allegation of Bias Remedy for Breach of Procedural Fairness

Interesting Dilemma
• The requirements of the duty of fairness are
independent of the merits of the substantive matter in
• If an adjudicator is giving reasons of why s/he feels there is
issue and that breach of the duty voids a decision.
no bias, this may be considered giving evidence.

• The Supreme Court of Canada expressed the point

• Adjudicator not generally permitted to be a witness in the
categorically in Cardinal:
matter in which they preside – could the parties then cross-
examine the adjudicator on the evidence?
[T]he 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.

Remedy for Breach of Procedural Fairness Remedy for Breach of Procedural Fairness

• In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore • Cardinal remains good law and the Mobil Oil exception should
Petroleum Board, [1994] 1 SCR 202 the SCC endorsed the view: be rare.

“[a] distinction might perhaps be made according to the nature of the decision.
In the case of a tribunal which must decide according to law, it may be • Judicial review is concerned with deciding what the duty of
justifiable to disregard a breach of natural justice where the demerits of the fairness requires in the circumstances of a particular decision
claim are such that it would in any case be hopeless.”

• Need to distinguish judicial review on substantive grounds. No

• Court refused to quash a decision in the face of a breach of
procedural fairness in Mobil Oil, but did so on the basis that it would
similar approach is taken with regard to the duty of fairness.
be “impractical” and “nonsensical” to do so, because, as a result of a
cross-appeal, the tribunal would have no alternative but to reject the • Historically, compliance with the duty of fairness has been
application in question. regarded as a jurisdictional question and, as such, a question
that must be answered correctly. If it is not, then jurisdiction will
• The Court described these circumstances as “exceptional,” and be lost, the relevant decision will be quashed, and the decision-
reiterated that it “would not wish to apply it [the exception] broadly.” maker will be required to make a fresh decision in accordance
with the correct procedure.

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Standard of Review –
THE DUTY OF FAIRNESS: SUMMARY CHECKLIST
Procedural Fairness
• Although a successful application for judicial review on
fairness grounds will result in an order quashing a decision STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED
and requiring it to be made anew, nothing necessarily Are there any limitations on the application of the duty of
prevents the decision-maker from reaching the same fairness – when is a duty of fairness NOT owed
substantive decision.
STEP 2 – DETERMINE THE CONTENT OF THE DUTY OF
• However in Baker a new hearing was ordered which
FAIRNESS
resulted in a different outcome. What elements of fairness are required in the particular
case?
• Mavis Baker was subsequently granted the humanitarian and
compassionate exception she sought and was allowed to stay in
Canada. STEP 3 – WHAT IS THE REMEDY FOR A PROCEDURAL
• Whether or not a different result obtains on a rehearing, the BREACH?
consequences of a breach of the duty of fairness may be significant.

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