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Appeal-Judicial-Review - Fairness - Baker - Nature and Process of Decision. Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court refers to the Baker fairness doctrine of 'nature and process of decision', here with a school board as JR respondent:[67] Moreover, in my view, the nature of the decision-maker and process are relevant to this issue. Given the nature of the Board as a body of democratically elected Trustees responsible to their constituencies, teachers, students and staff, the Board is different from a court or an adjudicative tribunal. When the Board considers a Code of Conduct matter, it is acting in a more adjudicative role than it does when ordinarily considering matters of policy. However, pursuant to s. 218.3, such a decision is nonetheless made at a public meeting by resolution of the Board and not at an adversarial hearing with processes akin to courts or adjudicative tribunals. As a result, it is not unreasonable for the Board to be responsive to the community as opposed to entirely insulated from it.
[68] The evidence is that there was a public outcry in response to the First Decision. As a responsive body, the Board called a special meeting to address the issue. At that meeting, over the course of eight hours, numerous delegations including former students spoke to the impact of the First Decision on them. The Applicant’s counsel made both written and oral submissions. The Board took all of those submissions into consideration when it deliberated on the motion to reconsider the First Decision. The Board did not simply bend to public pressure and reverse the First Decision upon receiving a negative response. . 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. ...
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