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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Appeal-Judicial Review - Fairness - Is It Only An Administrative Law Issue?

. R. v. Smith

In R. v. Smith (Ont CA, 2023) the Court of Appeal openly asserts a "denial of procedural fairness", here in the criminal sentencing process:
[32] In my view, there was an inadvertent denial of procedural fairness in this sentencing proceeding. That denial arose from the appellant’s reliance upon comments made by the sentencing judge at the January 20, 2021 appearance, a reliance that later worked to his detriment when the matter returned to court for further sentencing submissions in August.
. Nguyen v. Hu

In Nguyen v. Hu (Div Court, 2023) the Divisional Court illustrated how the terminology of 'fairness' has infiltrated itself from administrative law to civil law, here in an action on a failed APS:
[20] This appeal raises the following issues:

(1) Did the motion judge violate procedural fairness when he assessed damages as of the date of the breach? ...


[30] Mr. Nguyen makes an overriding argument that it was unfair for the motion judge to assess damages as of a date that resulted in him receiving only nominal damages. After all, he was the innocent party in the transaction. This submission is fully answered by the Court of Appeal’s decision in Akelius. As the motion judge noted, para. 29 of Akelius makes it clear that the principles governing the date to choose for the assessment of damages apply equally to an innocent purchaser in a rising market.

[31] Mr. Nguyen also submits that it was unfair for the motion judge to assess damages as of the date of the breach because he was not able to re-enter the market until his deposit was returned to him.

[32] We do not see any basis to interfere in the conclusion that assessing damages on the date of the breach was fair in all the circumstances. As set out above, the motion judge relied on Akelius to correctly conclude Mr. Nguyen had the onus of establishing he could not re-enter the market on the date of breach. The motion judge expressly found Mr. Nguyen failed to meet this onus. He noted at para. 84 of his reasons that Mr. Nguyen had admitted to purchasing the property as a speculative investment and had given “no evidence of his resources.” Meanwhile, Mr. Hu pointed to the mortgage approval obtained by Mr. Nguyen to suggest he had the financial ability to buy elsewhere. The motion judge concluded that, on learning the transaction would not close, Mr. Nguyen was not out of any money other than the deposit that remained with the real estate agents. He had not “adduced any evidence suggesting that he was disabled at all from investing in another condominium.”

[33] Although Mr. Nguyen now claims he needed the return of his deposit to re-enter the market, this argument was not raised on the motion. The motion judge stated at para. 12:
Mr. Nguyen does not claim that he could not re-invest until he received his deposit back and provided no evidence justifying a delay of the assessment of damages from the date of the breach of contract committed by Mr. Hu.[Emphasis added]
[34] Given that Mr. Nguyen did not raise this argument before the motion judge and in the face of his failure to lead evidence of his financial resources, the motion judge was entitled to assess damages as of the date of the breach.
. Terra Scapes Landscape Construction Inc. v. Ashtaryeh

In Terra Scapes Landscape Construction Inc. v. Ashtaryeh (Div Court, 2022) the Divisional Court granted an appeal in Small Claims Court grounded on procedural fairness - there was no mention that 'fairness' was an administrative law principle.

. AE Hospitality Ltd. v. Canada (National Revenue)

In AE Hospitality Ltd. v. Canada (National Revenue) (Fed CA, 2020) the Federal Court of Appeal considered whether new case law introduced by the court itself, though on an already-argued issue, was a breach of 'procedural fairness'. What's interesting is that fairness was raised at the Tax Court level:
[17] Lastly, AE submits that the Tax Court denied it procedural fairness by relying on case law that was not submitted by the parties and without providing it an opportunity to make submissions. A breach of procedural fairness might arise where a judge’s reliance on additional authorities "“introduce[s] a principle of law that was not raised by either party expressly or by necessary implication, or [takes] the case on a substantially new and different analytical path”" (Heron Bay Investments Ltd. v. Canada, 2010 FCA 203, 405 N.R. 73 at para. 24). We do not agree that there was a breach of procedural fairness in this case.


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