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Appeal-Judicial Hearing - Fairness - When Oral Hearing Necessary

. Walcott v. Public Service Alliance of Canada

In Walcott v. Public Service Alliance of Canada (Fed CA, 2024) the Federal Court of Appeal considered the absence of an oral hearing as a matter of procedural fairness:
[4] We reject the applicant’s submissions on procedural unfairness. ... We also see no unfairness in the Board deciding the matter without an oral hearing. The Board is expressly authorized to do so by section 22 of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365 (FPSLREBA). ....
. Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation

In Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal against two decisions against a First Nation in a residential schools system class action proceeding, the first a motion to intervene and the second to be added as a class to the action.

Here the court considered the appellant's procedural fairness objection that the motion's below were heard in writing, not orally, despite the significance of the matter for the parties:
[23] The Attorney General and the Gottfriedson respondents argue that the judge did not err in disposing of the motion in writing, given the powers conferred on case management judges by rules 384.1 and 385 of the Federal Courts Rules as well as the general powers of the Court under rule 3 of the Federal Courts Rules. The Gottfriedson respondents argue that an oral hearing was not required as a matter of natural justice here, especially given the judge’s familiarity with the matter.


Error in deciding the motion in writing

[37] I begin with a review of some basic principles.

[38] First, the standard of review for an allegation of procedural unfairness is functionally correctness: a court must ask whether the procedure was fair having regard to all of the circumstances (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 79; Canadian Pacific Railway Company v. Canada, 2018 FCA 69, [2018] F.C.J. No. 382 at para. 54). For an alleged error of fact-finding, the standard is palpable and overriding error. A court can take into account the motion judge’s role as case management judge in its analysis (see, for example, Paradissis v. Canada, 2019 FCA 70, 303 A.C.W.S. (3d) 881 at para. 6, citing Turmel v. Canada, 2016 FCA 9, 481 N.R. 139).

[39] Second, a court is not required to hold an oral hearing in disposing of a motion.

[40] In dealing with class actions, case management judges are given wide powers under the Federal Courts Rules, including the power to "“give any directions or make any orders that are necessary for the just, most expeditious and least expensive outcome of the proceeding”", per rule 385(1)(a). Judges are also authorized to deal with motions in writing under rule 369 of the Federal Courts Rules, and can exercise their discretion to do so based on the nature of the motion, the evidence, the issues, and the arguments (Adams v. Canada (Parole Board), 2022 FC 273, 2022 W.C.B. 494 at para. 19). Finally, this Court recently held in ViiV Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122, 460 D.L.R. (4th) 272, that a court can act on its own initiative when confronted with a "“problematic motion”", though it should not be quick to do so, and it must always invite submissions and consider them (at paras. 22-27). I hasten to add that there was nothing problematic about Salt River’s motion. It was promptly brought upon Salt River becoming aware of the proceeding and substantially in proper form (despite it being framed as an intervention motion, when it was in substance a motion to be added to the class, as the judge properly recognized).

[41] Wide as the discretion of a case management judge may be, it is not unlimited. There are other factors that bear on how it should be exercised, and in this case those include the nature of the issues, the allegations, and, importantly, the expectations of the parties as to how their case will be presented. Put otherwise, counsel may present a much different argument if they know that the motion is to be disposed of in writing only. Here, all parties proceeded on the understanding that there would be an oral hearing with respect to Salt River’s motion.

[42] The nature of the evidence put before the Court by Salt River also constrained its exercise of discretion. Representatives of Salt River averred, under oath, that they had not received notice of the class action. This was a serious matter.

[43] Class counsel contend that the judge was entitled to rely on her familiarity with the case and assume that the notices that the Court had directed to be sent were in fact sent and reached their recipients.

[44] As a general proposition I agree, but again, there are limits. That assumption cannot be relied on in the face of sworn evidence to the contrary. While the judge does not say so directly, it is implicit in her reasons that she did not believe Salt River’s affiants. The judge’s reliance on the proposition that all that was to have been done, had in fact been done, was undermined by the uncontroverted evidence that the notice of the proceeding had not been received. Therefore, the Federal Court erred in making findings of fact not supported by the evidence before it on the motion: namely, that class counsel had effectively communicated the opt-in deadline to potential Band class members, including Salt River, contrary to Salt River’s affidavits asserting the opposite. I note, parenthetically, that the fresh evidence clarifies that while notice had been sent to Salt River, it was unaware of the proceeding.

[45] Finally, there are circumstances where an oral hearing is required. For the reasons that the judge expressed in the Settlement Approval decision, this settlement was historic in nature and designed to address decades of cultural assimilation through the residential school system. If Salt River was to be denied the opportunity to participate in this settlement, it should have had the right to make the oral submissions that both it and the Federal Courts Rules contemplated and that the parties requested and anticipated. To this I would add that the judge did not consider the overarching objective of reconciliation in deciding to render the decision on the motion in writing and without the benefit of full submissions.

[46] The judge therefore erred in deciding the matter in writing and without hearing from the parties.
. Dahlia McPherson v. City of Toronto, RGI Eligibility Review Board

In Dahlia McPherson v. City of Toronto, RGI Eligibility Review Board (Div Ct, 2022) the Divisional Court considered, a matter of procedural fairness, when an administrative hearing need be oral:
[33] Contrary to the Applicant's assertion, the Review Body was not obligated to provide an oral hearing of her matter. The Supreme Court of Canada has held that an oral hearing is not always necessary to ensure a fair proceeding and proper consideration of the issues involved in a case. In paragraph 33 of Baker, the Court wrote that "the flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations."

[34] In Khan v University of Ottawa, 1997 CanLII 941 (ON CA), 1997 CarswellOnt 2613 at para 21, the Court of Appeal for Ontario held that "an oral hearing may be required in certain circumstances and particularly where Charter rights are at stake and in those common situations where credibility of the parties and witnesses is a factor in the decision-making process." Those circumstances are not present in this case. An oral hearing was not required.


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Last modified: 12-04-24
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