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Appeal-Judicial Review - Fairness - Baker - Legitimate Expectations

. Theresa McNicol v. York Catholic District School Board

In Theresa McNicol v. York Catholic District School Board (Div Court, 2024) the Divisional Court allows a JR from a school board sanction decision that the applicant trustee breached the Board's "Code of Conduct, the Workplace Harassment Policy and Equity and Inclusive Education Policy".

Here the court outlines Baker procedural fairness grounds, focussing on the element of 'legitimate expectations':
[1] Ms. McNicol is one of ten elected trustees who serve on the York Catholic District School Board (the “Board”). Following a dispute with other members of the Board, Ms. McNicol referred to a group of trustees as the “Italian trustees”, sent an email to the group in Italian, and expressed concern about her personal safety. An investigation of Ms. McNicol’s conduct determined that she had violated the applicable Code of Conduct, the Workplace Harassment Policy and Equity and Inclusive Education Policy.

[2] Following receipt of the investigation report, the Board voted to sanction Ms. McNicol with a censure and a bar on sitting on or attending all board meetings or committee meetings until the end of her term in office (a three-year period). After receiving submissions from legal counsel, the Board later varied its sanction to limit the bar on attending board meetings to one meeting. The other sanctions remained in place.

....

[4] For the reasons that follow, I would allow the application and quash the Board’s decision on the basis that it breached procedural fairness. The Board did not follow its own procedure for dealing with Code of Conduct complaints. Ms. McNicol had a legitimate expectation that these procedures would be followed. The Board also ignored one of the statutory requirements for imposing a sanction – namely, the need to make a finding that there had been a breach of the Code of Conduct.

....

Was the decision under review arrived at through a process that was procedurally unfair?

The Doctrine of Legitimate Expectations

[29] The leading authority on issues involving procedural fairness is 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. At paras. 23 to 28 of that decision the following factors are identified as being relevant to identifying “what is required by the common law duty of procedural fairness in a given set of circumstances”.
(i) The first important consideration is “the nature of the decision being made and the process followed in making it…The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determination that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.”(Baker, para. 23).

(ii) The second factor is the “nature of statutory scheme”. To apply this factor, it is necessary to assess the role of the decision maker within the statutory scheme. “Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.” (Baker, para. 24).

(iii) A third factor is the importance of the decision to the individual affected. The more important the impact of the decision on the affected individual, “the more stringent the procedural protections that will be mandated.” (Baker, para. 25).

(iv) The fourth factor is the one that is central to this case – “the legitimate expectations of the person challenging the decision.” As explained in Baker at para. 26:
“As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness…This doctrine, as applied in Canada, is based on the principle that the ‘circumstances’ affecting procedural fairness take into account the…regular practices of administrative decisionmakers, and that it will generally be unfair for them to act in contravention of representations as to procedure…”(cites omitted).
(v) An analysis of what the duty of fairness requires “should also take into account the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures…” (Baker, para. 27).
....

Did Ms. McNicol Have a Legitimate Expectation that the Procedures Provided for in the Statute and the COC Would be Followed?

[43] Once a body formally adopts a procedure it is legitimate for a member to expect that that procedure will be followed. In this case it was not. Two key components of that procedure were ignored. The first was that COC complaints, if they are brought, are to be brought expeditiously, i.e., within 15 days of the conduct at issue. Second, there is to be an opportunity for informal resolution to promote collegiality.

....

The Duty of Fairness Was Violated

[50] As Baker makes clear at para. 26: “If a claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.”

[51] In this case, one of the procedural requirements that was ignored was a statutory precondition to the imposition of a sanction – the need for the Board to make a finding that the COC had been breached. This raises an issue as to whether the Board had the jurisdiction to do what it did.

[52] While the allegations underlying Ms. McNicol’s conduct were serious, the rights at stake were also serious, both to Ms. McNicol and to her electorate. Limiting her ability to participate in the Board’s deliberations directly affected her ability to effectively represent her constituents.

[53] If the duty of fairness is breached a decision must be set aside.
. Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board

In Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board (Ont CA, 2023) the Court of Appeal considers the fairness/Baker issue of 'legitimate expectations':
[69] The appellant has not alleged that the Minister promised that the recommendations of the Board would not be followed if they were not in the appellant’s favour. While the appellant alleges that the Minister somehow “implied” that he would not follow negative recommendations of the Board, this does not constitute a “clear, unambiguous and unqualified” representation required to establish a legitimate expectation: Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68. Further, this representation did not promise a different or more rigorous procedure but rather a substantive outcome, which does not constitute a legitimate expectation in Canadian administrative law: Mavi, at para. 68.
. 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 Baker fairness element of 'legitimate expectations':
[63] I would not apply either proposition to this situation. Generally, legitimate expectation arises where a government agency promises a process and then reneges on the promise, denying the hearing or consideration that was the subject of the promise. I would be loathe to apply that principle here. The Landlord and Tenant Board refers to itself as a high-volume tribunal. Typically, it receives around 81,000 applications a year. In the year 2020-2021 it received a reduced number, 48,422. During 2020-2021, it resolved 35,983 applications.[60] The purpose of the Residential Tenancies Act is stated to be:
The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.
. Dr. Luchkiw v. College of Physicians and Surgeons of Ontario

In Dr. Luchkiw v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered a JR of a disciplinary finding of the 'Inquiries, Complaints and Reports Committee' (ICRC) of the College of Physicians and Surgeons of Ontario (CPSO), here regarding issuing COVID vaccination exemptions and related COVID matters. In this quote the court considers the application of the Baker doctrine of 'legitimate expectations':
[72] For the doctrine of legitimate expectations to apply, the practice or conduct must be “clear, unambiguous and unqualified”: Agraira v. Canada (Public Safety and Emergency Preparedness,) 2013 SCC 36. Here, there is no evidence that the College’s clear and unambiguous practice was to bring s. 87 applications whenever a physician failed to co-operate in an investigation or breached an order. I am satisfied that even if there was some evidence that the College had brought s. 87 applications in the past, the doctrine of legitimate expectations is not available where it conflicts with an express provision in a statute: Adam Giffen v. Ontario (Minister of Transportation), 2013 ONSC 7461, at para. 49. Section 76 of the Code imposes a positive obligation on a physician to co-operate with an investigation.
. 30 Bay ORC Holdings Inc. et al. v. City of Toronto

In 30 Bay ORC Holdings Inc. et al. v. City of Toronto (Div Ct, 2021) the Divisional Court relied on procedural fairness doctrine that legitimate expectations (Baker) did not give rise to substantive rights:
[97] I would not accede to this argument for several reasons. First, I do not read the relevant passage from Vavilov as in any way rejecting or undermining the well-established administrative law principle that legitimate expectations cannot give rise to substantive rights: see Brown et al., at para. 7:1730. The fact that the Applicants may have believed that Council would approve their IMIT grant applications, based on the City’s past practice, does not give rise to any enforceable right to have their applications approved: Skypower CL I LP et al. v. Minister of Energy (Ontario), 2012 ONSC 4979 (Div. Ct.), at paras. 53, 84.
. Canadian Pacific Railway Company v. Canada (Transportation Agency)

In Canadian Pacific Railway Company v. Canada (Transportation Agency) (Fed CA, 2021) the Federal Court of Appeal harkens back to the beginning of the doctrine of fairness:
[53] Ever since Nicholson v. Haldimand‑Norfolk Regional Police Commissioners, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311, 88 D.L.R. (3d) 671, it has been recognized that administrative decision makers have a duty to act fairly. While the cases in which the question arose often involved adjudicative tribunals, the principle does not flow from the nature of the tribunal but from the effect of the decision on the interested party. This was recognized, though not for the first time, in Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653 when the Court wrote:
...This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual: Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board (No. 2), 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602; Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735. ...
[55] Fairness is an elastic concept which varies according to the circumstances. As the Supreme Court wrote in Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, 69 D.L.R. (4th) 489, at 682 and confirmed 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 para. 21 [Baker], "“the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”".

[56] Baker sets out a number of factors to be considered in determining the content of the duty of fairness. One of these is the legitimate expectations of the person concerned. In this case, CP claims that it had legitimate expectations that it would be consulted before the manner of determining its CoC was changed, expectations which were based on the Agency’s past practice and its own undertaking to act transparently.

[57] Legitimate expectations can only arise as a result of an administrative tribunal’s conduct or its representations:
…If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. ...

Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at para. 94
[58] This Court has explained the interests underlying the legitimate expectations doctrine as follows:
The interests underlying the legitimate expectations doctrine are the non-discriminatory application in public administration of the procedural norms established by past practice or published guidelines, and the protection of the individual from an abuse of power through the breach of an undertaking. These are among the traditional core concerns of public law.

Apotex Inc. v. Canada (Attorney General), 2000 CanLII 17135 (FCA), [2000] 4 FC 264, 188 D.L.R. (4th) 145 at para. 123
. Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue)

In Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue) (Fed CA, 2022) the Federal Court of Appeal considered the Baker doctrine of legitimate expectations as an aspect of procedural fairness:
[39] Turning to the notion of legitimate expectations, an administrative decision-maker’s failure to follow the procedure it has said it would follow may give rise to a breach of procedural fairness (Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (1999), 174 D.L.R. (4th) 193 at para. 26 [Baker]; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504 [Mavi]). The Supreme Court set out the conditions where an administrative decision-maker’s representations give rise to legitimate expectations in Mavi at paragraph 68:
Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision-maker’s statutory duty. Proof of reliance is not a requisite. See Mount Sinai Hospital Center [v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281], at paras. 29-30; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 78; and C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131. It will be a breach of the duty of fairness for the decision maker to fail in a substantial way to live up to its undertaking: Brown and Evans, at pp. 7-25 and 7-26.
. Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks)

In Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2020) the Divisional Court elaborated on the Baker test for administrative procedural fairness:
[60] In Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (CanLII), [2013] 2 SCR 559, the Supreme Court of Canada described the doctrine of legitimate expectations as follows in paras. 94-97:
(a) A legitimate expectation arises from some conduct of the decision-maker, or some other relevant actor.

(b) A legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a specific case.

(c) The practice or conduct must be clear, unambiguous, and unqualified, in the sense that if made in the context of a private law contract, they would be certain enough to be capable of enforcement.

(d) The doctrine cannot give rise to substantive rights, only appropriate procedural remedies to respond to the ‘legitimate’ expectation.


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Last modified: 27-05-24
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