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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)
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Appeal-Judicial Review - Fairness - Baker - Importance of Decision

. Toscani and Holland v. AGCO

In Toscani and Holland v. AGCO (Div Court, 2024) the Divisional Court dismissed a JR of "the decision of the Horse Racing Appeal Panel (“HRAP”) which dismissed their appeal from rulings by the Registrar, Alcohol and Gaming Commission of Ontario (“Registrar”) that they had violated the Rules of Standardbred Racing (“RSR”) established under the Horse Racing Licence Act, 2015".

Here the court briefly summarizes the Baker procedural fairness doctrine:
1. Did the HRAP Deny the Applicants Procedural Fairness on the Appeal?

[11] The parties agreed that to determine whether the HRAP provided a procedurally fair hearing process to the applicants, the court will assess and weigh the well-known Baker factors. These include: the nature of the decision to be made, the process followed, the nature of the issues and statutory scheme, the importance of the decision to those affected, the legitimate expectations of those challenging the decision and the choice of process, among others: See Baker at paras. 21-28.

[12] Parties are entitled to a very high level of procedural fairness in legal proceedings which affect their livelihoods or their ability to pursue a profession: See Filippova v. Whyte 2024, ONSC 497 at para. 73.
. Filippova v. Whyte

In Filippova v. Whyte (Div Court, 2023) the Divisional Court considered the Baker 'procedural fairness' test, here focussing on the 'importance' accorded to "livelihood or ability to pursue a profession" decisions:
Analysis

[73] The test for evaluating procedural fairness is set out in Baker. In that decision, at paras. 21-28, the Supreme Court identified and described five non-exclusive factors to be considered: the nature of the decision being made, and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency.

[74] Processes that determine issues affecting livelihood or ability to pursue a profession will generally attract a high level of procedural fairness: Ford, at para. 55.
. Ramsay v. Waterloo Region District School Board

In Ramsay v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered administrative fairness under Baker principles [here, the 'importance' of the decision], in relation to whether a school board disciplinary meeting should be held in camera:
[34] With respect to his concern with the use of in camera proceedings, Ramsay submits that a key factor in determining the scope of the content of the duty of fairness is the nature of the statutory scheme and the terms of the statute pursuant to which the body operates. In this case, s. 207 of the Act requires that meetings of the WRDSB be open to the public, subject only to specific statutory exceptions that permit the use of in camera proceedings. These are:
(a) the security of the property of the board;

(b) the disclosure of intimate, personal or financial information in respect of a member of the board or committee, an employee or prospective employee of the board or a pupil or his or her parent or guardian;

(c) the acquisition or disposal of a school site;

(d) decisions in respect of negotiations with employees of the board; or

(e) litigation affecting the board.
[35] Ramsay argues that none of these exceptions applied to the complaint against him or were otherwise engaged. Hence, the principle of openness was not followed and his right to procedural fairness was breached.

[36] The WRDSB maintains that Ramsay was afforded adequate procedural fairness throughout. As articulated by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 27, considerable weight must be given to the choice of procedures made by the agency itself and its institutional constraints when assessing the requirements of procedural fairness.

[37] The WRDSB submits that decisions of a purely administrative nature, where a board is not acting as a tribunal which must deliberate and decide upon the rights of others, minimal procedural fairness is required. Decisions related to the enforcement of the Code of Conduct with respect to members of a school board, such as this decision of the WRDSB dealing with the conduct of one of its trustees, are predominantly administrative in nature.

[38] The WRDSB argues that, assuming that procedural fairness was owed to Ramsay, the factors set out in Baker would suggest that such fairness is on the lower end of the spectrum in these circumstances. The impact of the decision on Ramsay is nominal, and the sanctions imposed on him were minimal. The decision was not quasi-judicial in nature so as to require a very high level of procedural fairness. As the WRDSB points out, the Code of Conduct is explicit in stating that no formal trial-type hearing is to be conducted in enforcing the Code of Conduct. Rather, this process was designed to be an administrative one carried out by an elected WRDSB of Trustees empowered by statute to govern its own internal affairs.

[39] The WRDSB further submits that the use of in camera proceedings for deliberations was permissible under the applicable legislation. Section 207(2) of the Education Act allows for meetings to be closed to the public when, among other exceptions, the subject matter under consideration involves litigation affecting the school board. Since the delegate who was prevented from finishing her presentation commenced an application for judicial review as well as a civil action for damages against the WRDSB and its Chair, the facts involved with the complaint about the Ramsay were involved in litigation affecting the WRDSB. Further, the heart of the decision-making took place in the public sessions, where trustees publicly voted to find a breach of the Code of Conduct and to sanction Ramsay.

[40] The reasons for the decision in Del Grande v Toronto Catholic District School Board, 2023 ONSC 349 (Div. Ct.) illustrates the degree of procedural fairness a school board owes one of its trustees when enforcing its code of conduct in the context of alleged inappropriate trustee conduct. The Court stated (at paras 50-51):
As is evident from the process provided under s. 218.3, the process for determining whether a trustee has breached a code of conduct is not akin to a criminal process. The potential sanctions under the Education Act, including censure and the inability to participate in committees, are correspondingly weak…The process under s. 218.3 leads to a determination as to whether a trustee has breached the code of conduct and an appropriate sanction, and nothing more…

Under s. 58.5(1) of the Education Act, a school board is permitted to function as a corporation and “has all the powers and shall preform all the duties that are conferred or imposed on it under this or any other Act.” That provision reflects a legislative intent that school boards not be limited in conducting their affairs to those functions that are specified in the Education Act. Moreover, the Act does not dictate to the Board how it must conduct its affairs, rather, the Board is the primary determinant of its own processes.
[41] In my view, the June 6, 2022 meeting was permitted to be held in camera as the subject matter under consideration involved litigation affecting the WRDSB that stemmed from the delegation incident and its aftermath. This formed a significant part of the subject matter under consideration at the in camera meeting. It was “the triggering event [which gave] rise to the conduct which forms the primary basis for the Complaint” as found by the Integrity Commissioner to be the case.

[42] For this same reason, the WRDSB has filed a redacted Record of Proceeding with which Ramsay takes issue. The report of the Integrity Commissioner directly acknowledges that its contents arise from the delegation event which forms the subject matter of the related court application for judicial review and the civil action for damages against the WRDSB and the Chair. Similarly, the minutes of the in camera meetings were removed from the materials filed with the Court. There is no unfairness to Ramsay that results from this approach, nor any impediment to his raising of any argument on his own application for judicial review of the WRDSB decision in his case.
. Mirza et al. v. Law Society of Ontario

In Mirza et al. v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered a JR by candidates for "barristers and solicitors licensing exams" where 'cheating keys' had been leaked. Subsequently:
[4] ... after receiving written submissions but without holding a hearing, the LSO licensing department concluded that the Applicants had engaged in “prohibited actions” by making “a false or misleading representation or declaration.” The LSO decided to void the Applicants’ exam results and, for all Applicants other than Ms. Subramaniam, their registration in the licensing process. The LSO further disqualified the Applicants, for one year, from re-applying to the licensing process.
In these quotes, the court conducts the 'importance of the decision' portion of the Baker procedural fairness consideration of the LSO's applying punitive administrative sanctions, and their associated failure to hold an hearing:
b. Factor three - the importance of the decision to the affected individual

[42] The LSO did not deny the decisions were important to the Applicants, although it submitted that the Applicants were overstating the impact. There can be little dispute that the consequences of the LSO’s decisions were significant. The voiding of the registration meant the Applicants (other than Ms. Subramaniam) were required to wait a year (for most, until March 2023), before re-registering. At that point, they would have to repeat their experiential training (their articles or the Law Practice Program) and re-write their exams, including any that were successfully completed before November 2021. Although most or all the Applicants had received exemptions from the experiential component because of prior experience (for example, practising as a lawyer in a different country), they would be required to re-apply for the exemption.

[43] There were also wider-ranging consequences. The LSO considered the outcome to be a “regulatory sanction” such that the Applicant was required to disclose it in any re-registration application. The LSO then reserved the right to conduct a further investigation into the Applicant’s good character in the re-registration process and refer the Applicant for a good conduct hearing at the Tribunal. In other words, after waiting a year and then completing the registration process for a second time, the Applicants could still face a hearing on the very issues that had led to the voiding of their registration.

[44] Counsel for the LSO submitted that the Applicants had simply suffered a “setback” on the path to becoming licensed. In our view, a more apt description would be that the Applicants suffered a permanent stain on their reputation. The LSO highlighted that it would share the decision with legal regulators across Canada. Similarly, the finding of a regulatory sanction could prevent the Applicants from successfully applying to a different regulated profession where this would need to be disclosed. A law firm interested in hiring an Applicant could ask questions that would elicit this history and then be dissuaded from hiring the lawyer or paralegal.

[45] The substantial and wide-ranging consequences suffered by the Applicants weigh in favour of a high level of procedural fairness.
. Carolyn Burjoski v. Waterloo Region District School Board

In Carolyn Burjoski v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considers a JR against a school board decision to stop a "presentation to a Committee of the Whole Meeting". These quotes consider the applicant's procedural fairness argument:
Was there a breach of procedural fairness?

35. Burjoski also argues that there is no doubt that the WRDSB owed her a duty of procedural fairness because it made a decision that “affects the rights, privileges, or interests” of individuals is enough to trigger the duty of fairness. She maintains that she was denied such procedural fairness (see: Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817).

36. If any procedural fairness was owed to Burjoski, it was on the low end of the spectrum and it was not breached. The impact of the decision on Burjoski was relatively minimal. She was given an opportunity to speak about the library review process itself, as she requested to do in her request for delegation. It was only when she began to speak of topics irrelevant to those outlined in her request for a delegation that her presentation was interrupted with a warning. When she continued expressing her opinion about the content of books, and not the library review process, she was stopped by the Chair. In these circumstances and in this context, I consider that the restriction on her freedom of expression was minimal.

37. Like every administrative body, a school board such as WRDSB is “the master of its own procedure and need not assume the trappings of a court.” Important weight must be given to the choice of procedures made by the agency itself and its institutional constraints.

38. The WRDSB followed its own procedures in coming to a resolution to end Burjoski’s presentation. Although the Bylaws do not specify how the board may stop a delegation, even where a mode of procedure is not prescribed by statute, any reasonable mode not expressly forbidden by law may be adopted (see: Knight v. Indian Head School Division No 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653). The Chair did provide brief reasons when he referenced the delegation procedure and his concern that Burjoski’s comments may have violated the Human Rights Code.

39. I consider that the process that was afforded to Burjowski was not unfair. She was given more than one opportunity to deliver her delegation on the topic approved in advance, but declined to do so even after she was reminded of its scope. I therefore would not give effect to this ground of review.
. A-1 Credit Recovery v. Ministry of Finance

In A-1 Credit Recovery v. Ministry of Finance (Div Court, 2023) the Divisional Court considered a JR against a decision by two Ontario Ministries to disqualify the applicant from an 'RFB' (request for bid) process.

In these quotes, the court considered the low-importance (Baker) duty of fairness accorded to commercial decisions:
[36] A-1 also submits that the Ministries adopted a procedurally unfair process by arbitrarily revising the registration criteria and requiring that A-1 submit a valid certificate of registration. A-1 submits that this amounts to adopting a “non-existent” requirement about which A-1 did not have notice. In doing so, A-1 submits that the Ministries breached their duty of fairness in tendering for procurement contracts as recognized in Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services), 2000 CanLII 16572 (FCA) at para. 27.

[37] Given the commercial context, the duty of procedural fairness owed to participants in a government tendering process tends to fall toward the lower end of the spectrum: Airbus Helicopters Canada Limited v. Canada (Attorney General), 2015 FC 257 (CanLII) at para. 116.
. Stenka v. Garten

In Stenka v. Garten (Div Court, 2023) the Divisional Court considered the Baker 'importance of decision' issue, here in an LTD context:
[19] This court has found that procedural fairness before the LTB is at the higher end of the spectrum of procedural fairness because of the high stakes for all parties, among other things: Shapiro v. Swingler, 2021 ONSC 6191, [2021] O.J. No. 4832 (Div. Ct.), at para. 39. While the Respondent submits that an unauthorized occupant does not have the same entitlement to procedural fairness as a tenant, s. 183 of the RTA states that “all persons directly affected by the proceeding [are to be given] an adequate opportunity to know the issues and be heard on the matter” (emphasis added). Moreover, the very issue of whether the Appellant was an unauthorized occupant or tenant was one of the issues to be determined in the proceeding.
. Stuckless v. Canada (Attorney General)

In Stuckless v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal held that an administrative fairness issue was at the lower end of the Baker spectrum:
[2] Mr. Stuckless alleges that the Federal Court erred in finding that the required level of procedural fairness owed to him was at the lower end of the spectrum and in concluding that his procedural rights were not breached.

....

[4] I have carefully considered Mr. Stuckless’ written and oral submissions. I am not convinced that the Federal Court committed a reviewable error by referring to the decisions in Wojcik v. Canada (Attorney General), 2020 FC 958; Lum v. Canada (Attorney General), 2020 FC 797; and Henri v. Canada (Attorney General), 2014 FC 1141, to find that the degree of procedural fairness owed to Mr. Stuckless in this case was low. The statutory scheme and its purpose, the discretionary nature of the decision and the impact of the decision on Mr. Stuckless all support the Federal Court’s finding.
. Yen v. Office of the Independent Police Review Director

In Yen v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considers factors that feed in the Baker 'degree of fairness' consideration:
Procedural fairness was accorded to the Applicant

[23] The Supreme Court of Canada’s decision 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 states that the degree of procedural fairness required of any administrative decision maker is to be determined by reference to all the circumstances of that decision. These include: (1) the nature of the decision being made, and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of the procedure made by the administrative decision maker itself.

[24] The legislative scheme of the Police Services Act provides the Director with the discretion to decide not to deal with a complaint under s. 60(1). The summary nature of the initial screening process does not attract a high level of procedural fairness.

[25] The Applicant did not point to any part of that process that was unfair save and except the case coordinator’s initial recommendations being changed upon further review. The fact that the team lead did not agree with the recommendations of the case coordinator does not make the process unfair.

[26] The Applicant’s complaint was received, reviewed by a case coordinator, reviewed again by a Team Lead, with the ultimate decision being made by the Director. That decision was communicated to the Applicant with reasons. The process met the Respondent’s duty of procedural fairness.
. Schram v. Thompson

In Schram v. Thompson (Div Court, 2022) the Divisional Court held that the Baker 'fairness' importance standard for RTA matters was high:
[33] The adjudication of residential tenancy disputes requires a level of procedural fairness "at the higher end of the spectrum": Baker v Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), at paras 28, 30, 4547; Shapiro v Swingler, 2021 ONSC 6191 (Div. Ct.), at paras. 39-42. The right to be heard is a “fundamental precept of our system of justice": See, Duncan v. Toronto Community Housing Corp, 2015 ONSC 4728 (CanLII) at para 2.
. Ford v. University of Ottawa

In Ford v. University of Ottawa (Div Court, 2022) the Divisional Court considered (and allowed!) a classic student case, that of a judicial review of grades.

In these quotes the court notes the Baker fairness issue of the importance of the decision to the applicant::
[54] The degree of procedural fairness required for an administrative decision varies depending on the context. The reviewing court should consider factors such as the importance of the decision to the person affected, the statutory scheme, how similar the procedures are to those of a judicial decision-maker, and the legitimate expectations of the person involved: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at paras. 23-37; Khan v. University of Ottawa, 1997 CanLII 941 (ON CA), 1997 CarswellOnt 2613 (Ont. C.A.), [1997] O.J. No. 2650, 101 O.A.C. 241 at para. 13; Vavilov at para. 77.

[55] Processes that determine issues affecting livelihood or ability to pursue a profession will generally attract a high level of procedural fairness: see Kahsay at para. 2; AlGhaithy at para. 41; Baker at para. 25; Kane v. University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105; Khan v. University of Ottawa, at para. 14.
Brown v. Canada (Citizenship and Immigration)

In Brown v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal comments on administrative procedural fairness in the immigration detention context:
[136] Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).

[137] Although the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings "“will merit greater vigilance by the courts”" (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.

[138] Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.
. 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 that the degree of procedural fairness varies with the circumstances of the issue:
[24] The content of the duty of fairness applicable to any given set of circumstances is flexible and variable and will depend on the context. In the investigative context, the duty of fairness does not impose the same obligations as it does at a hearing stage, where the rights of a party are finally determined, and sanctions are potentially imposed. As the Supreme Court of Canada set out in Irvine v. Canada (Restrictive Trade Practices Commission), 1987 CanLII 81 (SCC), [1987] 1 S.C.R. 181, paragraphs 78 and 87.
Fairness is a flexible concept whose content varies depending on the nature of the inquiry and the consequences for the individuals involved ...

Courts must, in the exercise of this discretion, remain alert to the danger of unduly burdening and complicating the law enforcement investigative process. Where that process is in embryonic form engaged in the gathering of the raw material for further consideration, the inclination of the courts is away from intervention.


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Last modified: 28-03-24
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