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Fairness - Remedies. Catholic Children's Aid Society of Toronto v. R.E.
In Catholic Children's Aid Society of Toronto v. R.E. (Ont CA, 2025) the Ontario Court of Appeal considered remedies for breaches of procedural fairness:[28] Relying on this court’s decision in Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82, leave to appeal requested, [2025] S.C.C.A. No. 125, the mother argues that, in the normal course, a finding that there was a breach of procedural fairness should lead to a new trial. This is not entirely accurate. In the normal course, where a court finds a breach of procedural fairness, the decision should be quashed or set aside: Vento Motorcycles, at para. 29. However, this does not necessarily lead to the need for a new trial. Section 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, sets out the powers of an appellate court which are to (a) “make any order or decision that ought to or could have been made by the court or tribunal appealed from”, (b) “order a new trial” or (c) “make any other order or decision that is considered just”. Where an appellate court finds a breach of procedural fairness, the court may be able to decide the issue based on the evidentiary record below and the submissions of counsel: Jones v. Quinn, 2024 ONCA 315, 59 R.P.R. (6th) 56, at para. 93; Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, 17 C.P.C. (8th) 1, at paras. 15-16, leave to appeal refused, [2018] S.C.C.A. No. 214; Slawter v. Bellefontaine, 2012 NSCA 48, 318 N.S.R. (2d) 29, at paras. 5-6, 56-57. Whether an appeal court should order a new trial or decide the issue itself depends on the circumstances of the case and whether the court is satisfied that it has the evidence necessary to decide the issue. . Shull v. Canada
In Shull v. Canada (Fed CA, 2025) the Federal Court of Appeal considered the remedy on finding a breach of procedural fairness:[32] A finding of a breach of procedural fairness renders a decision liable to be overturned: Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at para. 23 [Cardinal]; Université du Québec à Trois-Rivières v. Larocque, 1993 CanLII 162 (SCC), [1993] 1 S.C.R. 471 at 493. However, where the result is inevitable, a court may exercise its discretion to not grant a remedy for the breach: Rebello v. Canada (Justice), 2023 FCA 67 at para. 16, leave to appeal to SCC refused, 40752 (2 November 2023), citing Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202 at 228-229 and Ilaslan v. Hospitality & Service Trades Union, 2013 FCA 150 at para. 28; see also Canada v. Bowker, 2023 FCA 133 at para. 77.
[33] This exception is admittedly narrow. A court should not decline to overturn a decision based on "“speculation as to what the result might have been”": Cardinal at para. 23; see also Gale v. Canada (Solicitor General), 2004 FCA 13 at para. 13. In other words, it is not sufficient that a new hearing is unlikely to lead to a different result: R. v. Habib, 2024 ONCA 830 at paras. 27-28.
[34] That said, I am satisfied that narrow exception applies here insofar as the Tax Court dismissed Mr. Shull’s appeal. On that issue, Mr. Shull’s appeal has no prospect of success. Returning the matter back to the Tax Court would be futile: Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56 at para. 117. The result is inevitable. . PUC Services Inc. v. Power Workers’ Union
In PUC Services Inc. v. Power Workers’ Union (Div Court, 2024) the Divisional Court dismissed a labour JR brought by the employer, here respecting a one-day suspension from employment of a union representative for "unprofessional and disrespectful conduct".
Here the court considers remedies where a breach of procedural fairness is found, focussing on any prejudice that may cause:Should the matter be remitted back for a new hearing?
[37] In most cases, the Court will order a new hearing when the proceedings below were procedurally unfair. However, judicial review is a discretionary remedy. The court may decline to remit a matter back for a new hearing even if the decision below is flawed, provided the Court is satisfied that the outcome of the new hearing will inevitably be the same and remitting it back will serve no useful purpose: Vavilov, at para. 142.
[38] I am satisfied this case is one of those exceptional cases where remitting it back for a new hearing will serve no useful purpose. The nature of Mr. Priddle’s conduct and whether his conduct fell within the protection afforded to union representatives were the main issues in this grievance. Neither PUC’s motion to strike nor its request to adduce reply evidence to discredit Ms. Nicholas could have changed the result on either issue. First, the Arbitrator did not rely on impugned evidence about the merits of Ms. Nicholas’s termination. Second, even if PUC had been allowed to adduce reply evidence to undermine Ms. Nicholas’s credibility, it could not have changed the result because the Arbitrator entirely accepted PUC’s evidence about the seriousness of Mr. Priddle’s conduct. Third, the Arbitrator applied the right legal test when deciding whether Mr. Priddle’s conduct was protected.
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