|
Administrative - When Hearing Required. Afolabi v. Law Society of Ontario
In Afolabi v. Law Society of Ontario (Ont CA, 2025) the Ontario Court of Appeal allowed an LSO appeal, this from numerous partly successful JR applications relating to suspected lawyer-licensing examination cheating:
Here the court considers Baker fairness test elements where the Divisional Court allowed JRs against LSO determinations "voiding their registrations in the licensing process without having held a hearing":ISSUE #1 No unfairness in voiding the Applicants’ registrations
[62] The Divisional Court concluded that the LSO breached the Applicants’ right to procedural fairness when it cancelled their registrations in the licencing process without having held an oral hearing. It applied the Baker factors to reach this conclusion. In my view, the court erred in its application of those factors and wrongly concluded that the LSO had breached its duty of procedural fairness.
[63] At paras. 23-27 of Baker, the Supreme Court set out the following list of non‑exhaustive factors as relevant to determining what the common law duty of procedural fairness requires in a given set of circumstances:i. the nature of the decision being made and the process followed in making it;
ii. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
iii. the importance of the decision to the affected individual(s);
iv. the legitimate expectations of the person challenging the decision; and
v. the choices of procedure made by the decision-maker, particularly where the statute leaves to the decision-maker the ability to choose its own procedure. ....
Conclusion
[102] The LSO has a duty to protect the public interest, maintain public confidence in the profession, and ensure the entry-level competence of incoming licensees. It is to be afforded considerable latitude in regulating the legal profession and in determining how the duty to protect the public interest can best be furthered in the context of a particular discretionary decision: Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453, at para. 18.
[103] To fulfill these duties, when the LSO learned the integrity of the November 2021 exams was compromised, it called on two departments to respond: the Licensing Department and the Professional Regulation Division. The Licensing Department was tasked with determining how to deal with the threat posed to the integrity of the licensing examinations and licensure process. The Professional Regulation Division investigated possible ethical concerns.
[104] The Licensing Department and the Professional Regulation Division not only perform different functions, they are governed by different legislative provisions. They played different roles in responding to the November 2021 exam incident. While the groups spoke to one another and shared information, the procedural fairness considerations that govern the two are different. The fact that the two groups were working simultaneously and shared information does not mean that their processes merged. Nor does it mean that the same procedural fairness considerations apply to them.
[105] The Divisional Court misconstrued the statutory scheme by conflating the work of the Licensing Department with that of the Professional Regulation Division: the former was responsible for licensing decisions – the effect on licensing examinations and the effect on the candidate’s position in the licensure process. The Licensing Department’s Decision was made pursuant to By-law 4, which governs licensing. The LSA does not require that a hearing be held before a decision is made under By-law 4. The absence of procedural dictates in By-law 4 is usefully contrasted with s. 27 of the LSA which dictates that an application for a licence may be refused only after a hearing by the Hearing Division.
[106] When the legislative and factual circumstances in this case are considered in accordance with the Baker factors, the LSO did not breach the Applicants’ right to procedural fairness in making the Registration Decision. Accordingly, I would dismiss the Applications. . Mirza et al. v. Law Society of Ontario
In Mirza et al. v. Law Society of Ontario (Div Court, 2023) the Divisional Court cited a CA case for the point that the common law can require a hearing where the issue is central and important:[36] The conclusion that a hearing would be required is consistent with the general principles of procedural fairness stated in Khan v. University of Ottawa (1997), 1997 CanLII 941 (ON CA), 34 O.R. (3d) 535 (C.A.). The Court of Appeal found that a student had been denied procedural fairness with respect to her appeal from a failing grade on a law school exam. Although many academic appeals would not require an oral hearing, what distinguished this case was that the central issue related to the student’s honesty about whether she had completed an additional exam booklet. The court concluded that the examinations committee should not have judged her credibility adversely without affording her an in-person hearing. . Manitoba Métis Federation Inc. v. Canada (Energy Regulator)
In Manitoba Métis Federation Inc. v. Canada (Energy Regulator) (Fed CA, 2023) the Federal Court of Appeal considers an appeal by a Metis organization of a decision of the Commission of the Canadian Energy Regulator (the Commission) involving a hydro project advanced by Manitoba Hydro. In these quotes the court considers when a tribunal must hold a hearing:[206] It is true that certain proceedings before the Commission must be public, including hearings if related to the issuance, suspension, or revocation of a certificate (CER Act, s. 52(1)). A public hearing may also be held for any other matters if appropriate (CER Act, s. 52(3)).
[207] In this case, the primary issue in the MMF’s Notice of Application was whether the MAP was a commitment under Condition 3 and whether Manitoba Hydro had failed to implement it; in other words, whether Manitoba Hydro was non-compliant with respect to Condition 3. The Commission found no such commitment and, as a result, found that Manitoba Hydro was compliant. The question of revocation or suspension therefore did not arise.
[208] A public hearing is not required under subsection 52(1) by the simple fact that a party requested the revocation or suspension of a certificate. Revocation or suspension must actually become a live issue before the Commission.
[209] Furthermore, the Commission is empowered to conduct its proceedings in a flexible manner and adapt them to the circumstances at hand, subject to the common law requirements of procedural fairness (Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 at 685, 69 D.L.R. (4th) 489). Therefore, the factors used to determine what procedural rights are contained in the duty of fairness, set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paragraphs 22–28, apply to the Commission.
[210] Applications and proceedings before the Commission “must be dealt with as expeditiously as the circumstances and procedural fairness and natural justice permit” (CER Act, s. 31(3)). To this end, the Commission may make rules governing its procedures and practices (CER Act, s. 35(d); see also the National Energy Board Rules of Practice and Procedure, 1995, S.O.R. 95/208, which remain in effect). That is what the Commission did here. It was not required to hold a public hearing in these circumstances.
[211] In the present appeal, the MMF did not argue that it had not been heard or that it did not have the opportunity to provide fulsome submissions to the Commission regarding its concerns. There is no question here that the MMF was allowed to provide fulsome written submissions to the Commission over the course of several months.
[212] I am satisfied there was no breach of procedural fairness and find no error of law.
|
