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Appeal-Judicial Review - Fairness - Re-Opening. Ghafari v. Canada (Attorney General)
In Ghafari v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a decision of the Federal Public Service Labour Relations and Employment Board (FPSLREB) that dismissed a "complaint alleging abuse of authority in an internal appointment process".
In these quotes the court considered a denial of a request to re-open the hearing (after submissions) for additional evidence, here as an issue of procedural fairness:B. The Refusal to Admit Post-hearing Evidence Did Not Breach Rights of Procedural Fairness
[30] Mr. Ghafari’s second procedural fairness argument relates to the Board’s refusal to accept additional evidence after the conclusion of the hearing. Mr. Ghafari became aware of the evidence in question during his cross-examination of one of the respondent’s witnesses on Friday March 4, 2022, the last day of testimony. Oral arguments were made the following Tuesday, followed that same day by written submissions. Two days later, Mr. Ghafari wrote to the Board seeking permission to introduce the additional evidence.
[31] Mr. Ghafari’s request addressed the test for admission of post-hearing evidence. After receiving submissions from the respondent, the Board refused to admit the evidence, explaining that, in its view, the test for admission of new evidence was not met. Among its reasons, the Board pointed out that Mr. Ghafari did not make his request until two days after the last hearing day.
[32] Mr. Ghafari submits that the Board’s decision was procedurally unfair because he only learned of the evidence on the last day of testimony and so could not have obtained it earlier than he did. He also asserts that the period of time within which the Board expected him to seek permission to admit it was too short.
[33] I see no breach of procedural fairness. The Board heard arguments from both sides and then made its decision. Even if Mr. Ghafari could not access the evidence until after the close of the hearing, nothing prevented him from asking for time to obtain it, either immediately following the testimony of the witness who raised it, or during his final oral submissions four days later. I also observe that the Board concluded the evidence was “readily available before the hearing”. In my view, the substance of Mr. Ghafari’s submissions on this matter is disagreement with the Board’s application of the test for new evidence.
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