Unit 3 Module 1

Question 1

the distinction between administrative and quasi-judicial decisions

Answer 1

Unlike in the past, the distinction between administrative and quasi-judicial decisions no longer governs whether procedural fairness is required. However, what specific procedures are required still depends to some extent on the nature of the decision, including where it falls on the decision-making spectrum, from purely administrative to quasi-judicial.

For officials and bodies that follow an informal decision-making process, the duty to be fair often only entails giving notice of the intended decision and an opportunity to respond to the individual or individuals who will be affected by the decision.

For tribunals that hold formal hearings, however, fairness often requires more elaborate procedures; these apply to tribunal staff as well as to tribunal members, and they apply both inside and outside the hearing room.

Question 2

Where Procedural Fairness Rules Are Found

Answer 2

in agencies’ enabling statutes, in other statutes under which agencies make decisions, in common law principles applied by the courts, and in the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, and Quebec’s Charter of Human Rights and Freedoms.

Question 3

minimum requirements that a bureaucrat must follow in a particular case

Answer 3

For the minimum requirements that a bureaucrat must follow in a particular case, it is often necessary to look to common law fairness principles and try to apply them to that case.

Procedural fairness is “contextual,” not absolute. That is, the amount of fairness required depends on the context. The more serious the consequences of a procedure, the greater the fairness required.

Question 4

Baker v Canada (Minister of Citizenship and Immigration), the Supreme Court said that in determining the appropriate level of fairness and the specific procedures that must be

Answer 4

followed by a tribunal or other agency, one should look at • the nature of the decision (where it falls on the spectrum from administrative to quasi-judicial decision-making processes);
• the nature of the statutory scheme (for example, where the statute does not provide for an appeal from an administrator’s decision, more fairness safeguards may be warranted in making the initial decision than if an appeal wereavailable);
• the importance of the decision to the affected person; • the extent to which the person affected has legitimate expectations of a particular process; and
• the extent to which the legislature intended the decision-maker to have dis cretion to choose its own procedure.

Question 5

Permissible Departures from Common Law Procedural Fairness Requirements

Answer 5

If a statute or regulation sets out a more specific fairness requirement than the common law in a particular situation, the statutory requirement takes precedence, regardless of whether it is more onerous or less onerous than the common law requirement.

example, in Ontario, a person is entitled to refuse medical treatment unless a doctor convinces the Consent and Capacity Board that the patient lacks the mental capacity to make an informed decision. The Health Care Consent Act, 1996 2 requires that the hearing take place within seven days of a patient application to the Board to overturn a doctor’s decision that the patient lacks capacity. This short time frame takes precedence over the general rule that each side must be given adequate notice of the hearing. In other circumstances, under other statutes, “adequate” notice might be a month; in this case, adequacy is determined by the fact that the hearing itself must be held within seven days.

If the government refuses an applicant access to a document, this decision can be appealed to a tribunal. The tribunal will scrutinize the document to determine whether to order the government to release it, but the applicant will not be permitted to see the document, even though this would help the applicant argue his or her case effectively. If the applicant saw the document, he or she would win by default, the government would lose by default, and the proceedings would, effectively, be unnecessary.

Question 6

The Common Law Principles of Procedural Fairness

Answer 6

the basic principles of procedural fairness may be reduced to just two:

the right to be heard and

the right to an unbiased decisionmaker.

Each of these pillars of procedural fairness has a number of components.

Question 7

The Requirement to Provide a Hearing: The First Pillar of Procedural Fairness

Answer 7

In proceedings before a tribunal, the complexity and comprehensiveness of the procedures required for a hearing depend on the nature and complexity of the issues involved and the seriousness of the consequences of the decision to the parties and the public.

For example, suppose that two parties oppose each other and the credibility of witnesses is in issue. A process that does not allow parties to know what witnesses have said about them and does not provide an opportunity for cross-examination will not be considered a hearing—or it will be considered an unfair hearing. Where there is only one party, a less formal process will sometimes meet the procedural fairness requirements of a hearing.

For example, a victim of a crime may apply to the Criminal Injuries Compensation Board for compensation for injuries resulting from a crime. The Board must be satisfied that the crime really occurred and that the damage was real, but the potential trauma to the applicant from allowing the perpetrator of the crime to be present and cross-examine the victim could outweigh the value of permitting the evidence to be tested in this manner.

Question 8

The Requirement to Give All Parties an Opportunity to Be Heard

Answer 8

a tribunal has a duty to ensure that all other parties and persons who may be substantially affected by the decision are given an adequate opportunity to present their cases. This principle is expressed in the Latin phrase audi alteram partem, which means “hear the other side.”

In some cases, as long as each party has had an opportunity to submit written material and to respond to the other parties’ written material, the hearing will be considered a fair one.

In other cases, nothing less than a right to be present, give testimony orally, and cross-examine opposing witnesses will conform to the audi alteram partem principle.

Question 9

Components of the Right to Be Heard

Answer 9

The Right to Notice
to be considered adequate, the notice must 1. provide participants with an explanation of what the hearing is about that is sufficient to allow them to prepare to address the issues, and
2. provide them with sufficient time to prepare.

Adequate notice also involves scheduling the hearing at a time when affected persons can participate.

Question 10

Limits on the Right to Notice

Answer 10

the right to notice does not always include a requirement for disclosure of evidence beyond the bare minimum required to inform a party of the case it must meet.

Disclosure thus prevents “trial by ambush.”

At common law, traditionally there was no general procedural fairness requirement for advance disclosure of evidence in proceedings before tribunals, only the right of parties to know the basic substance of the proceeding. Instead, the common law required that, on the presentation of surprise evidence by one party, a request by the other party for an adjournment be granted to allow the other party to prepare aresponse.

In its 2005 decision in May v Ferndale Institution, the Supreme Court of Canada expanded the common law requirement for disclosure. The Court held that the duty of procedural fairness generally requires a statutory decision-maker to disclose the information that he or she relied on in reaching a decision.

Question 11

Particulars are

Answer 11

details that explain or clarify matters related to evidence, arguments, or remedies disclosed before or in the course of a proceeding— for example, details and clarifications of allegations made by one party against another or, where the tribunal staff presents the case, details of allegations made by the tribunal staff against a party.

Question 12

The Requirement to Retain Evidence

Answer 12

In Charkaoui v Canada (Citizenship and Immigration), the Supreme Court established a new procedural fairness requirement that an investigator must retain evidence that it may be necessary to disclose to a tribunal or party in the future in order to ensure a fair hearing at that time. The Court initially expanded procedural fairness to include a requirement to retain evidence only in cases where the evidence may have an impact on a proceeding with serious consequences—for example, a deportation hearing that may result in the deportation of a party to a country where he or she may face torture or death.

Question 13

The Right to Be Present

Answer 13

Parties have the right to be present at a hearing before a tribunal throughout the entire hearing process.

No part of a hearing should be conducted without all parties being present, unless a party has voluntarily given up his or her right to attend or has engaged in conduct that justifies depriving him or her of this right.

In a written hearing, the right to be present takes the form of a right to receive all relevant information presented to the tribunal and to be given a reasonable opportunity to respond to it.

In an electronic hearing, the right to be present is satisfied if all parties are able to hear each other and the adjudicator in a teleconference or to see and hear everyone else in a video conference.

Question 14

Limits on the Right to Be Present

Answer 14

several circumstances in which a tribunal may proceed in the absence of a party:
• If a p arty has been served with notice of a hearing and does not attend, a tribunal may proceed in the party’s absence. If a party does not attend, the adjudicator must be satisfied that the party was properly served with notice of the hearing. If there is satisfactory evidence that the party was served, the hearing may proceed in the party’s absence. (It is usually reasonable to expect a tribunal to wait at least 30 minutes and to ask one of the other parties or tribunal staff to contact the party and find out the reason for the party’s absence before proceeding.)

• Where a party persists in disrupting proceedings, the tribunal may exclude the party to maintain order.
• If a party “walks out” of a hearing as a form of protest, the party has waived his or her right to be present.
• In rare circumstances, the sensitivity of evidence may justify allowing a party’s representative, but not the party, to have access to the evidence—for example, where the tribunal rules that the evidence must be kept confidential and there is compelling reason to believe that the party will not maintain confidentiality.

Question 15

The Right to Be Represented

Answer 15

Parties have the right to present their own case or to have their case put forward by a lawyer or other representative. - parties have a right to choose who will represent them, and the tribunal must make reasonable efforts to accommodate the schedule of a party’s representative.

Generally, the right to be represented before a tribunal does not include the right to have the government pay for a lawyer where a party cannot afford one.

include a right to state-funded legal assistance where an individual is indigent and the interests at stake are so serious and the proceedings so complex that the individual would not receive a fair hearing without legal representation.

Question 16

Limits on the Right to Be Represented

Answer 16

The right to be represented does not give a party an absolute right to an adjournment to obtain representation. A party is entitled to a reasonable opportunity to find a lawyer or other suitable representative. However, if the tribunal finds that the party has not taken advantage of the opportunity and a delay will cause serious inconvenience to other parties and raise the cost of the hearing, the tribunal may be justified in refusing an adjournment to allow a party to find a lawyer or agent.

Question 17

The Right to Present Evidence

Answer 17

• only after the facts are clear is it possible to determine how the law should apply to them.
• reasonable opportunity to produce relevant information in an attempt to prove the facts they want the tribunal to accept and to disprove unfavourable allegations by other parties.
• corollary of the right of a party to present evidence is that there must be an appropriate mechanism to enable a party to require other persons who have relevant information to provide it to the tribunal. Usually, this mechanism is a summons (sometimes called a “subpoena”) issued by the tribunal to a witness that requires the witness to attend the hearing, bring relevant documents, and present evidence.

Question 18

Limits on the Right to Present Evidence

Answer 18

right to present evidence does not always mean that a party has the right to present evidence orally in the presence of tribunal members.

In some circumstances, an electronic or written hearing may be sufficient.

Moreover, a tribunal may refuse to receive information for various reasons—for example, because the information was not disclosed in advance of the hearing in compliance with the tribunal’s rules of procedure, or because it is irrelevant or unreliable.

Question 19

the Right to Cross-Examine

Answer 19

parties have the right to know the evidence being brought against them and to respond to it.

They must have a fair opportunity to learn of any information that is unfavourable to them and to correct or contradict it.

The purpose of cross-examination is to give parties an opportunity to challenge the evidence given by the other side’s witnesses. The right to cross-examine witnesses in adversarial proceedings has been described as “fundamental” and “a vital element” of the system.

Written hearing - the opportunity to respond in writing to the evidence and submissions.

Question 20

Limits on the Right to Cross-Examine

Answer 20

does not mean that a party or a party’s representative is allowed to ask irrelevant, inflammatory, abusive, or repetitive questions.

Whether a tribunal has the right to disallow cross-examination in order to ensure an inexpensive and expeditious hearing may vary from case to case. The Workplace Safety and Insurance Appeals Tribunal allows a limited form of cross-examination in some circumstances, which it calls “cross-questioning.”

Question 21

The Requirement That the Person Who Hears Must Decide

Answer 21

The person who hears a case is the only person who may decide the case.
First, it is generally improper for an adjudicator who was absent for any part of a hearing to take part in making the decision. (There may, however, be exceptions, such as when all parties consent and there is an effective way of informing a n e w or substitute tribunal member of the evidence heard in his or her absence.)

Second, it is improper for anyone associated with a tribunal—such as the chair, other tribunal members, or tribunal staff—to put pressure on a hearing panel to make the decision in favour of one party or another or to change an intended decision.

Question 22

Exceptions and Limits to This Requirement

Answer 22

if one member of a panel of adjudicators cannot complete a hearing (for example, as a result of prolonged illness or death), the remaining members may complete the hearing and render a decision.

Generally, a new member or adjudicator cannot take the place of the member who cannot complete the hearing partway through the hearing unless all parties consent to the replacement, and it is improper for the tribunal to put any pressure on the parties to accept such an arrangement.

rule that only a member who hears a case can decide it does not prohibit that member from seeking the advice of other tribunal members, tribunal counsel, or tribunal staff (a practice sometimes known as “collegial decision-making”).

the consultation should be limited to questions of law and policy.

tribunal member must not rely on evidence or facts provided by his or her colleagues without taking precautionary steps. The member must notify all parties that he or she is considering relying on other evidence, and must give the parties an opportunity to challenge not only the accuracy of the evidence but also the member’s right to consider it.

Question 23

The Requirement to Base the Decision Solely on the Evidence

Answer 23

parties before a tribunal have the right to expect that the tribunal’s decision will be based on the facts established at the hearing, and not on other information.

An adjudicator who relies on facts within his or her own knowledge or on facts learned outside the hearing compromises the integrity of the hearing process.

Question 24

Exception to This Requirement

Answer 24

judicial notice or administrative notice.

Adjudicators are entitled to “take notice” of facts that would be known to a well-informed member of the community (for example, that Ontario is a province of Canada) or that would be known by a well-informed member of a professional group, particularly when the tribunal consists of members of that profession.

Question 25

The Right to Be Heard in a Timely Manner and to Receive a Decision Without Undue Delay

Answer 25

A basic tenet of our legal system is, “Justice delayed is justice denied.” The right to be heard within a reasonable time and to receive a decision without delay is now recognized as an aspect of procedural fairness, although traditionally it was not.

example, by impairing his or her ability to receive a fair hearing—it will be considered a breach of procedural fairness if it is longer than necessary, if the individual is not responsible for it, and if the agency has no good explanation for the delay.

Question 26

The Requirement to Give Reasons for the Decision

Answer 26

now established at common law that procedural fairness requires tribunals and other decision-makers to provide reasons for their decisions, at least in situations where the decisions may seriously affect an individual’s rights, privileges, or interests, or where reasons are necessary for the exercise of a right of appeal.

Where reasons for a decision are provided, for the decision to be upheld on judicial review, it is necessary for the reasons to clearly explain how that decision was reached.

It has been said that in the context of administrative law, reasons must be sufficient to fulfill the purposes required of them, particularly to let the individual whose rights, privileges, or interests are affected know why the decision was made and to permit effective judicial review. The basis of the decision must be explained, and this explanation must be logically linked to the decision made.

Question 27

disclosure:

Answer 27

a procedure in which parties before a tribunal present to each other evidence in their possession that may be relevant to the proceeding in advance of the hearing; provides all parties with a reasonable opportunity to know the evidence that will be produced against them at the hearing

Question 28

hearing:

Answer 28

refers both to the opportunity to be “heard” by an administrative decisionmaker, in the sense of being notified of an intended decision and given an opportunity to respond, and to the more formal hearing required when the decision-maker is a tribunal, including the various procedural safeguards that are appropriate given the nature and complexity of the issues involved and the seriousness of the consequences of the decision to the parties and the public

Question 29

judicial notice:

Answer 29

the exception to the rule that an adjudicator must rely solely on the facts established at the hearing in making a decision; the acceptance by a court or tribunal of certain facts that would be known to a well-informed member of the community or by a well-informed member of a professional group; also called “administrative notice” or “official notice”

Question 30

notice:

Answer 30

a document that informs a person of a legal proceeding that may affect the person’s interests or in which the person may have a right to participate

Question 31

particulars:

Answer 31

details that explain or clarify matters related to evidence, arguments, or remedies disclosed before or in the course of a proceeding—for example, details and clarifications of allegations made by one party against another, or, where the tribunal staff presents the case, details of allegations made by the tribunal staff against a party

Question 32

summons:

Answer 32

a document issued to a witness by a tribunal or court that requires the witness to attend the hearing, bring relevant documents, and present evidence; sometimes called a “subpoena”

Question 33

The Two Elements of Impartiality: Individual Impartiality and Institutional Impartiality

Answer 33

First, the decision-maker must be free from individual bias.

Second, the tribunal or other agency to which the decision-maker belongs must not be structured in a way that suggests that its decisions will be biasedin favour of one party or another.

The impartial, unbiased adjudicator will not have prejudged the issues or have a predisposition in favour of one side or theother.

Question 34

In the case of tribunals, the impartiality requirement has two components.

Answer 34

First, the decision-maker must start the hearing with an open mind and must reserve judgment until all evidence and arguments have been presented. If he or she is inclined to support one party’s position over the other’s, and if this bias is not institutional (see below), the decision-maker is said to be influenced by personal bias.

Second, to be perceived as impartial, the tribunal itself must be reasonably independent of any government agency that is a party to its hearings. If the tribunal is structured in a way that does not permit its members to decide freely between the parties in accordance with the applicable law, the decision-makers are said to be influenced by institutional bias.

Question 35

Actual Bias and Reasonable Apprehension of Bias

Answer 35

A decision-maker is biased when he or she does not approach a decision with an open mind.

example, the decision-maker may stand to benefit financially from the outcome of a decision, or may have a close personal relationship with or strongly dislike a person who will be affected by the decision.

Where a decision-maker has a predisposition to decide one way or the other because of some personal interest, it is improper for the decision-maker to participate in making the decision.

even if a decision-maker does not believe that a relationship or interest causes him or her to have an actual bias in deciding a case, a decision-maker should not hear a case where a reasonable and well-informed observer of the situation would assume that he or she would probably be biased. This appearance of bias is called a reasonable apprehension of bias.

Question 36

The Relationship Between Bias and Conflict of Interest

Answer 36

conflict of interest is only one source of bias or perceived bias; other sources include friendship with a party, a dislike of one of the parties, or prior knowledge offacts that are prejudicial to one of the parties.

Conflict of interest is a specific kindof bias—a financial interest in the outcome of a particular case, or, more generally, any interest that is incompatible with an individual’s function as a member of a tribunal.

Question 37

Indicators of Possible Bias

Answer 37

These considerations include whether the decision-maker
• meets with one party in the absence of other parties;
• has a close friendship with a person whose interests may be affected by the outcome of the case;
• has a close relative whose interests may be affected by the outcome of the case;
• has a financial interest in the outcome of the case;
• belongs to an association that has taken a position on an issue or issues that must be decided by the tribunal;
• expresses opinions about the issues in the case before all the evidence and arguments have been heard;
• intervenes in the hearing process in a way that persistently favours one party over another;
• expresses a strong like or dislike for a party or its witnesses;
• is in or has been in litigation against a party or witness in a proceeding;
• has or has had in the recent past a significant business or professional relationship with a party or witness;
• has played a part in the case at any stage (for example, the adjudicator may have been consulted about some minor point years earlier); 1 or
• accepts gifts or favours from a party or witness.

Question 38

Elements of Institutional

Bias Impartiality Versus Independence

Answer 38

The Supreme Court of Canada has stated that the impartiality of a decision-maker is determined by examining his or her state of mind, whereas the independence of a tribunal is a matter of its status:

Question 39

What Constitutes Independence?

Answer 39

the constitutional requirement of judicial independence, judges must have security of tenure, financial security, and control of the operations of their courts.

tribunals are not expected to have the same degree of independence as courts

Question 40

Factors to Consider in Determining Whether There Is Institutional Bias

Answer 40

• the closeness of the relationship between an agency or tribunal and a government department that is affected by its decisions; and
• where an agency has multiple functions, the extent to which these functions overlap in a manner that suggests that some employees have inappropriate influence over others.

Question 41

Determining Whether the Agency – Government Relationship Contributes to Institutional Bias

Answer 41

• Are agency or tribunal members appointed for a fixed term, or do they hold their offices at pleasure? (The term “at pleasure” means that an appointment may be terminated whenever the government pleases.)
• If the appointment is for a fixed term, how long is the term? (The longer the term is, the greater will be the appearance of independence.)
• Are members’ salaries fixed, or can the government raise or lower them at will? (Fixed salaries will contribute to the appearance of independence.)
• Are the appointments part time or full time? (A part-time appointment raises a greater concern that an agency or tribunal member might be denied work if he or she makes a decision that is unsatisfactory in the eyes of the government or the chair of the agency.)
• To what extent does an agency chair have discretion over which members to appoint to hearing panels? (If the selection process is not random, this increases the ability of the chair to influence the outcome of hearings by appointing members whom he or she feels, from experience, are likely to be sympathetic to one side or the other.)
• Are the staff of an agency selected or employed by the agency, or by the government? (Where the government is sometimes a party to proceedings, the fact that tribunal staff owe their livelihood to the government rather than the agency can create an appearance of bias.)
• To what extent is an agency required by government rules to follow government policy? (The more an agency must follow policy, the less will be the appearance of independence.)
• Does the minister to whom an agency chair reports conduct the performance evaluation of the chair, and what criteria are used in evaluating the chair’s performance? (If the agency makes decisions that can adversely affect the government, the possibility of an unfavourable performance appraisal can be perceived as interfering with the ability of the agency to be impartial, particularly if the criteria used involve an assessment of the wisdom of the decisions that affect the government.)
• Does the government department to which an agency reports determine the agency’s annual budget? (If the department controls the budget, there may bean appearance that it is able to reduce the budget to punish unfavourable decisions and increase it to reward favourable ones.)

Question 42

Determining Whether Overlapping Functions Contribute to Institutional Bias

Answer 42

a multifunctional structure creates an appearance of bias when those who are responsible for recommending or prosecuting proceedings against a person are also involved in deciding whether to take away the person’s rights, privileges, or benefits.

avoid an appearance of institutional bias, there should be a clear separation of roles between those who investigate and recommend administrative action, those who argue the case before the tribunal, and those who make the decision.

example, an agency lawyer who is responsible for approving proceedings against a person, or for arguing a case before a tribunal, privately advises the tribunal as to how it should decide the case.

Question 43

Statutory Exceptions to the Requirement of Institutional Impartiality

Answer 43

• that a tribunal must follow government policy,
• that the chair must report to the minister of a department that appears as a party before the tribunal,
• that the minister has the right to approve the tribunal’s rules of procedure,
• that the chair must provide any information about the tribunal’s operations that the minister requests, and
• that the agency’s budget must be approved by the minister.

Together, these requirements might raise doubts about the tribunal’s impartiality. However, any bias resulting from these requirements is immune from attack in the courts because it is clearly authorized by statute and is not unconstitutional.

Question 44

Raising an Allegation of Bias

Answer 44

courts will consider a party thatdoes not raise an allegation of bias during a hearing to have waived the right to argue it in court.

if a party knows of facts that may give rise to an appearance of bias before a hearing begins, the party should seek to raise the matter discreetly with the tribunal chair or tribunal member and resolve it at that time; in this way, the party will avoid having to raise the matter during the hearing in a public forum, which could embarrass the tribunal and the member.

party should seek to raise the matter discreetly with the tribunal chair or tribunal member and resolve it at that time; in this way, the party will avoid having to raise the matter during the hearing in a public forum, which could embarrass the tribunal and the member.

If the member does not agree that his or her participation will result in a reasonable apprehension of bias, it is not necessary to immediately seek judicial review of the member’s decision to continue.

A party’s continued participation in the hearing will not be considered a waiver of the right to raise the issue in later court proceedings, since the issue was raised during the hearing.

Question 45

Tribunal Response to an Allegation of Bias

Answer 45

tribunal members should take steps to prevent such allegations from being raised during a hearing.

Question 46

bias:

Answer 46

an interest, attitude, relationship, or action that leads a decision-maker to favour one party over another

Question 47

a situation in which a decision-maker

Answer 47

conflict of interest: has a personal or financial interest in the outcome of the proceeding that can affect his or her ability to make a fair decision

Question 48

reasonable apprehension of bias:

Answer 48

the appearance of bias to a reasonable and well-informed observer; also called an “appearance of bias” or “perception of bias”