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Appeal-Judicial Review - Fairness - Unargued Grounds. Drewlo Holdings Inc. v. Municipal Property Assessment Corporation
In Drewlo Holdings Inc. v. Municipal Property Assessment Corporation (Div Court, 2023) the Divisional Court considered an 'unargued grounds' [audi alteram partem] procedural fairness argument:A point of procedural fairness
[37] Drewlo also complains that it was denied procedural fairness because the Board focused in its decision on whether new lands were created, and made reference to the Condominium Act, “which neither party had raised, and regarding which the parties were not invited to make further submissions.” Drewlo asserts that this was a violation of the audi alteram partem rule.
[38] In fact, however, the Condominium Act, and its use as authority to create new individually taxable parcels of land, had been specifically referenced in paras. 19 and 20 (and their attendant footnotes) of MPAC’s submissions to the Board. In its own factum to the Board, at para. 4, Drewlo acknowledged its awareness that the condo plan would affect the “legal status” of an MPAC assessment. Drewlo was on notice that the effect of the Condominium Act was a live issue before the Board and had the opportunity to address it.
[39] The audi alteram partem rule must take into account a particular tribunal’s “expertise and the body of jurisprudence that has developed around its area of expertise”: Knoll North America Corp. v. Adams, 2010 ONSC 3005 (Div. Ct.), 104 O.R. (3d) 297, at paras. 28-31; Girouard v. Canada (Attorney General), 2020 FCA 129, 449 D.L.R. (4th) 679, at paras. 97-98; IWA v. Consolidated Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, 68 D.L.R. (4th) 524, at para. 93. With respect to the use of s. 33(1) by MPAC as an accepted tool when properties are converted to condominium units, see, for example, National Car Rental (Canada) Inc. v. Municipal Property Assessment Corporation, Region 15, 2022 CanLII 53352 (ON ARB), at paras. 109-110. The operation of the Condominium Act in the context of the Act must have been in the contemplation of these parties in the circumstances of this case.
[40] This ground of appeal, along with its procedural fairness component, must fail. . Ledore Investments v. Dixin Construction
In Ledore Investments v. Dixin Construction (Div Court, 2023) the Divisional Court considered whether a decision made on unargued grounds was a breach of procedural fairness (it was):Was there a breach procedural fairness?
[26] Dixin submits, however, that there was no breach of procedural fairness in this case. In its submission, the context of interim adjudication is important. It is a fast and informal process intended to secure an interim result pending the parties pursuing their dispute more comprehensively in court or before an arbitrator. Dixin submits that in this context, the parties are entitled to limited procedural protections.
[27] We agree that Ross Steel was not entitled to the full range of procedural protections that would apply, for example, in a final arbitration or court hearing. In determining the level of procedural fairness owed, Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, requires the court to consider, among other factors, the statutory scheme. The provisions of the Act establish a prompt and abbreviated adjudicative process. The process is targeted (see s. 13.5(4)), proceeds according to short timelines (see ss. 13.11, 13.13(1)) and, in this case, with strict page limits as described above.
[28] But the right to be heard on the determinative issue is a central component of even more limited procedural protections. It is a legal truism in our system of justice that it is fundamentally unfair, and quite possibly unreliable, for a judicial officer or adjudicator to reach a conclusion in his or her reasons for judgment in a proceeding based on an issue that has not been pleaded or relied upon by a party to the proceeding.
[29] It is fundamentally unfair because the losing party has had no opportunity to know the case it has to meet, or to address the issue that has been determined to be decisive. It is potentially unreliable because, in a system in which the adversarial process is relied upon to reach the best and most thoroughly considered determination, a decision that has not been tested in that framework cannot be trusted to have had its flaws exposed and addressed: Labatt Brewing Company Ltd. v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at paras. 4-5; Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 61-63; A-C-H International Inc. v. Royal Bank of Canada (2005), 2005 CanLII 17769 (ON CA), 139 ACWS (3d) 525 (Ont. C.A.), at paras. 15-18; Garfin v. Mirkopoulos, 2009 ONCA 421, 250 OAC 168, at paras. 19-20.
[30] In this case, the subject of the adjudication was whether the funds paid to Dixin by the College should flow down to Ross Steel since Dixin had delivered no notices of non-payment on the three invoices in question. From Dixin’s perspective, the adjudicator needed to determine whether it was entitled to withhold funds and set them off against deficiencies and damages caused by Ross Steel even in the absence of notices of non-payment. The parties agreed that the College had paid the funds on the invoices that Dixin had given it.
[31] The parties did not raise the form of Dixin’s invoice as an issue, and Dixin had not even filed in its adjudication materials the invoices that it had submitted to the College for the adjudicator’s consideration. Had submissions been invited from the parties, Ross Steel may have chosen to make comment on the adjudicator’s ability to base conclusions on invoices that were not before him.
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