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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Administrative - Disclosure

. Opara v. Human Rights Tribunal of Ontario

In Opara v. Human Rights Tribunal of Ontario (Div Court, 2023) the Divisional Court considered questionable administrative 'disclosure' as a procedural fairness issue, here in a HRTO context:
[14] In addition to the above, the applicant submits that there was a breach of procedural fairness because he was given no disclosure prior to the preliminary hearing. However, it is more accurate to say that the applicant was given some disclosure, but not everything he sought in his request for production of documents.

[15] As set out in the above Case Assessment Direction, the HRTO required that the parties provide witness statements and documents that they intended to rely on at least 45 days before the preliminary issue hearing. Collabria and Desjardins did so. There was also some voluntary disclosure as set out in emails between the parties that form part of the record.

[16] However, the applicant also submitted an extensive request for an order for the production of documents dated July 8, 2020, which was denied. That request included, for example, requests for considerable data for all Meridian credit cards that Desjardins provides insurance for and all notes, emails, minutes or notes of meetings and correspondence, both internal and external, about policies and terms related to Desjardins’ review of the insurance on its credit cards.

[17] The interim decision on the document request indicated that the applicant did not explain why the documents were requested at that stage, but the applicant had provided some submissions. Before this Court, the applicant submits that all of this data/documents was needed to permit the applicant to retain an expert actuary for the purposes of the preliminary hearing. We are not persuaded that is the case. Nor are we persuaded that such an extensive production request is required for the fair determination of the issues on the preliminary hearing. However, it may be that some production is needed. We need not rule on the production request in isolation. Given our decision to require a new hearing, the applicant may make a fresh request for an order for production in accordance with the HTRO process and it will be for the HRTO to address whatever request is made in the first instance.
. Schuur v Sas

In Schuur v Sas (Div Court, 2023) the Divisional Court considered a judicial review of an HSARB disclosure order to only release a heavily redacted ICRC ['Inquiries, Complaints, and Reports Committee'] record of a complaint to the College of Psychologists. In these quotes the court considered that the procedural fairness to be accorded a complainant is less that that to be accorded a professional, here a psychologist:
iii. The Disclosure Order and Motion to Vary

[16] On 9 March 2020, the Applicant requested a review of the ICRC decision by the HPARB. In her request, the Applicant alleged deficiencies in the ICRC’s information gathering process and complained that she had never received a copy of Dr. Sas’s response to the complaint.

[17] On 24 February 2021, the HPARB made a disclosure order with respect to the ICRC’s Record of Investigation and any other documents the ICRC utilized in making its decision to the parties to the review. However, the HPARB ordered that pursuant to s. 32(3) of the Health Professions Procedural Code (being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18) (the “Code”), the Applicant was only entitled to a redacted version of the record containing approximately 92 unredacted pages of a total of 2,464 pages. The HPARB’s Disclosure Order noted that the redacted pages contained the personal health information of people not party of the complaint review process, and no consent was received to release the information. The relevant personal health information included that of the Applicant’s two children.

[18] Section 32(3)(c) of the Code provides:

(3) The Board may refuse to disclose anything that may, in its opinion,


(c) disclose financial or personal or other matters of such a nature that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that disclosure be made;
[19] The HPARB found that the confidentiality interests of the persons affected by disclosing their personal health information outweighed the desirability of adhering to the principle that full disclosure be made.

[20] On 5 April 2021, the Applicant provided the HPARB with signed consents for the release of the personal health information of her minor children. The HPARB did not change its position.

[21] On 5 May 2021, the Applicant filed a motion to vary the Disclosure Order and asked that the Record of Investigation be reproduced to her without the redactions, including the three USB keys that had documents/media the ICRC used in its determinations. Dr. Sas opposed the motion. The HPARB declined to vary or set aside the Disclosure Order because of the privacy interests of the children, and because the Record of Investigation contains court materials. Mitrow J. had issued endorsements restricting the Applicant’s access to litigation materials, as well as limiting Dr. Sas’s involvement in the family law litigation. The HPARB found the motion to vary was an attempt to obtain the documents which were specifically restricted by the court. Dr. Sas will be called to testify in the Applicant and her ex-partner’s four-year family litigation, and the HPARB found the proper forum to contest the findings of Dr. Sas was in court.


[23] The HPARB found that the investigation need not be exhaustive to be adequate. The Applicant argued that she should have been provided with Dr. Sas’s response and that she should have been able to respond to it. The HPARB rejected this and noted that the procedural fairness owed to a complainant is more limited than that owed to the regulated health professional under investigation. The ICRC is required to provide a certain minimum disclosure to a complainant. Beyond that, the ICRC has discretion in ordering disclosure as circumscribed by s. 32. The HPARB was not persuaded that the ICRC would have come to a different conclusion had it received the Applicant’s comments about Dr. Sas’s response. The HPARB determined the decision was reasonable as the ICRC considered the materials before it, applied its own knowledge relating to the standards of the profession and applied its own expertise to interpret the Record.


[34] It is well recognized that under s. 32(3) of the Code, the HPARB has differing disclosure obligations as between complainants and members being investigated. The disclosure obligation to a complainant is lower than that to the member complained about. The complainant is not at risk of the loss of any profession or occupation, nor is his right to bring an action for malpractice affected in any way. Because the stakes for the complainant are very low, the disclosure duty to him or her is commensurately low, subject to the other factors in Baker (see Walker, at paras. 14-16; Silverthorne, at para. 13).
. Faruk v. The Landlord and Tenant Board

In Faruk v. The Landlord and Tenant Board (Div Court, 2023) the Divisional Court considered a judicial review (not a RTA s.210 appeal, which would be more usual), grounded in administrative fairness and abuse of process, of interrupted RTA proceedings where the LTB member had resigned before the hearing was completed and the LTB ordered a de novo hearing. The substantive issues were COVID-era arrears of rent and s.83 relief form eviction.

In this quote the court considers the SPPA s.5.4's disclosure provisions, where the LTB has recently elected to introduce disclosure duties by passing appropriate rules:
[6] In its determinations made as a result of the case management hearing, the Landlord and Tenant Board considered requests made by the tenants that the landlord be ordered to produce emails which contained the words “union” or “group of tenants”, statements of its profits from the residential complex for the current and immediately previous year and copies of payment plans other tenants had entered into with the landlord, as well as the outcomes of those agreements. Had those agreements resulted in missed payments and ended with eviction? As with the issue of which witnesses would be permitted to testify, the Landlord and Tenant Board was careful in the analysis it undertook. With respect to the emails, it reviewed its authority to make such an order under s. 5.4 of the Statutory Powers Procedure:
(1) If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

(b) the oral or written examination of a party;

(c) the exchange of witness statements and reports of expert witnesses;

(d) the provision of particulars;

(e) any other form of disclosure.
[7] The Board reviewed a case that it felt informed the situation it confronted (Ontario (Human Rights Commission) v. Dofasco [2001 CanLII 2554 (ON CA)] The Board ordered a word search of the emails be undertaken with an eye to producing emails that were relevant to the issues at hand.[11]

[8] Since the landlord was not relying on financial hardship as part of its rationale for seeking the eviction orders, the Landlord and Tenant Board refused to order the production of any financial statements. Similarly, the Board refused to order production of any of the payment plans that may have been entered into. The fact that a payment was missed or the tenant vacated the premises would not assist in understanding why, and therefore, would not further an argument that the landlord did not meaningfully or reasonably negotiate.[12]
. Watson v. Law Society of Ontario [the numbered case cites can be accessed at the main Canlii case]

In Watson v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered the importance of disclosure in administrative proceedings, here in professional discipline proceedings:
[91] This approach was apparent not only during the hearing, but prior to its commencement, particularly with respect to disclosure. It is clear that the disclosure obligations of the Law Society in cases of this nature are governed by the principles established by the Supreme Court of Canada in Stinchcombe.[79] The Court held in Stinchcombe that the Crown must disclose all “relevant material whether it is inculpatory or exculpatory” and that the duty applies to everything in the Crown’s possession unless it is “clearly irrelevant.”[80] Where there is a “reasonable possibility” that the materials “might be of use to the defence” they must be disclosed.[81] This has been described as a very low threshold.

[92] The Ontario Divisional Court has emphasized the importance of disclosure to procedural fairness in professional discipline proceedings, as follows:
The importance of full disclosure to the fairness of the disciplinary proceedings before the Board cannot be overstated. Although the standards of pre-trial disclosure in criminal matters would generally be higher than in administrative matters (See Biscotti et al. v. Ontario Securities Commission, supra), tribunals should disclose all information relevant to the conduct of the case, whether it be damaging to or supportive of a respondent's position, in a timely manner unless it is privileged as a matter of law. Minimally, this should include copies of all witness statements and notes of the investigators. The disclosure should be made by counsel to the Board after a diligent review of the course of the investigation. Where information is withheld on the basis of its irrelevance or a claim of legal privilege, counsel should facilitate review of these decisions, if necessary. The absence of a request for disclosure, whether it be for additional disclosure or otherwise, is of no significance. The obligation to make disclosure is a continuing one. The Board has a positive obligation to ensure the fairness of its own processes. The failure to make proper disclosure impacts significantly on the appearances of justice and the fairness of the hearing itself. Seldom will relief not be granted for a failure to make proper disclosure. For comparable principles in the context of criminal prosecutions see M.H.C. v. The Queen (1991), 1991 CanLII 94 (SCC), 63 C.C.C. (3rd) 385 (S.C.C.); R. v. Stinchcombe (1991) 1991 CanLII 45 (SCC), 68 C.C.C. (3rd) 1 (S.C.C.); R. v. Egger (1993), 1993 CanLII 98 (SCC), 82 C.C.C. (3rd) 193 (S.C.C.); R. v. McAnespie (1993), 1993 CanLII 14716 (ON CA), 82 C.C.C. (3rd) 527 (Ont. C.A.); R. v. Hutter (1993), 1993 CanLII 8478 (ON CA), 16 O.R. (3rd) 145 (Ont. C.A.); R. v. L.A.T. (1993), 1993 CanLII 3382 (ON CA), 84 C.C.C. (3rd) 90 (Ont. C.A.); R. v. T (1993), 14 O.R. (3rd) 378 (Ont. C.A.) and "The Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions" at pp. 143-273 prepared by The Honourable G. Arthur Martin, O.C., O.Ont., Q.C. LL.D.[82]
. Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario)

In Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario) (Div Court, 2022) the Divisional Court considered a failure of disclosure to be an aspect of fairness, locating it under the "nature of the decision being made and the process followed in making it" aspect of the Baker test:
[64] In 1657575 Ontario Inc. v. Corporation of City of Hamilton[10], a hearing was held to consider revoking the appellant's licence to operate an adult entertainment parlour. The City failed to disclose the grounds for the revocation or disclose the issues to be determined. While a revocation of a licence was at issue in that decision which resulted in a hearing being held, in my view the principles of disclosure required by natural justice and knowing the case to be made against them are equally applicable here. Rouleau JA for the Court of Appeal stated:
[25] Disclosure is a basis element of natural justice at common law and, in the administrative context, procedural fairness generally requires disclosure unless some competing interest prevails. ...
The courts have consistently held that a fair hearing can only be had if the persons affected by the tribunal's decision know the case to be made against them. Only in this circumstance can they correct evidence prejudicial to their case and bring evidence to prove their position. Without knowing what might be said against them, people cannot properly present their case. ...

[27] In cases involving breaches of procedural fairness, the court will generally set aside the decision without considering whether the result would have been the same had there been no unfairness. ...
. Dr. Rajiv Maini v. HPARB et al.

In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered disclosure as an aspect of administrative procedural fairness:
[21] The Applicant maintains that he is owed a high level of disclosure requirements even in the investigative phase before the ICRC, as confirmed by this Court in Gopinath v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 3143 (Div. Ct.), at paragraph 14. In that case, however, the applicant’s counsel had requested specific disclosure on multiple occasions, but the CPSO did not provide it. There is no evidence on this record that the Applicant requested disclosure that would justify the higher level of disclosure referred to in Gopinath.


[27] As well, section 25(5) of the Code does not require Dr. Maini to have received full disclosure. The Code merely requires that he had “notice” of the complaint and an opportunity to respond (Botros, paras. 30-31). Had the Legislature intended a member to receive each document before the ICRC, it would have used express language to that effect. It did not.

[28] This case is distinguishable from the cases relied on by Dr. Maini. In Ajao v. College of Nurses of Ontario, 2011 ONSC 6061 (Div. Ct.) and Gopinath, the court found procedural unfairness in the regulators’ failure to provide the members an opportunity to respond to information they had no notice of. A similar conclusion was reached in another case upon which Dr. Maini relies. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, the regulator breached the procedural requirements set out in the Code by disposing of the matter without having given the member notice of the complaint or an opportunity to make written submissions to the ICRC.
. Dhillon v. The Corporation of the City of Brampton

In Dhillon v. The Corporation of the City of Brampton (Div Ct, 2021) the Divisional Court discusses disclosure obligations in an administrative context:
[56] I find that there was sufficient disclosure in the circumstances. There is nothing in the Municipal Act or the Complaint Protocol that suggests the level of disclosure sought by Councillor Dhillon. The Court in Di Biase v. City of Vaughan, 2016 ONSC 5620 determined that integrity commissioners have relatively low obligations of disclosure, stating at para. 146:
An administrative body that investigates and makes recommendations must disclose the substance of the allegations. The Supreme Court of Canada in two cases affirmed the following statement by Lord Denning in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), p. 19:
The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only.

Syndicat des Employés de Production de Québec et l'Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, at para. 27.

Irvine v. Canada (Restrictive Trade Practices Commission), 1987 CanLII 81 (SCC), [1987] 1 S.C.R. 181, at para. 71, citing Jenkins v. McKeithen, 395 U.S. 411 (1969), Harlan J. (dissenting), pp. 442-443.
. Brown v. Canada (Citizenship and Immigration)

In Brown v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal holds that a disclosure duty applies under the doctrine of administrative procedural fairness when the issue is quasi-criminal (here, immigration detention):
[140] The interveners assert that detainees do not receive sufficient and timely disclosure to allow them to know the case they have to meet and to respond. They argue that the Immigration Division Rules fall short of what fairness requires because they, and the relevant policy guidelines, require disclosure of only the documents on which the Minister intends to rely. They also point to evidence that says that the disclosure that is made is often late and leaves counsel with no ability to adequately represent the detainee’s interests.

[141] The existence of a legislated disclosure requirement does not dispose of the question whether procedural fairness has been met. The Court must still examine whether the duty of fairness has been fulfilled. The Federal Court observed that Mr. Brown raised "“legitimate concerns about the timeliness and quality of pre-hearing disclosure”" (Federal Court reasons at para. 127). I agree that those concerns are substantiated by the evidence. Mr. Singh, a hearings officer with the CBSA, admits that, although disclosure is to be provided in advance, "“there are times where it is not provided in advance”" (Federal Court reasons at para. 110).

[142] The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee. This includes information pertaining to the grounds for the detention, information pertaining to the section 248 criteria, the existence of an immigration nexus, and the factors that bear upon the judge’s assessment whether continued detention is warranted and consistent with Charter and administrative law principles. While the disclosure obligation necessarily encompasses information that is helpful to the detainee, it is not unlimited. It is always tempered by the requirement that the information be relevant to the circumstances of the particular detainee.


[149] The lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under section 248. In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure (see section 18.2 of the Federal Courts Act). Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents which results in a breach of procedural fairness.


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