CANADIAN

ADMINISTRATIVE
LAW

Module 4

Liz Nastasi & Trevor Guy

 Some specific Components of the Duty of Fairness

• Although most of the procedural rights protected by the duty

of fairness are well established, their parameters are open
to argument in particular contexts:

Right to Be Heard Right to an Unbiased

Decision Maker
Notice, Disclosure, Oral Issues wrt individual
hearings, Right to be conduct, institutional
Present, Right to counsel, (structural) issues and lack
Rights to call evidence, of independence
Timeliness and delay, Duty
to give reasons
Procedural or Substantive?
• Denial of an adjournment request
based on factors not set out in the rules.
• Denial of the opportunity to cross-examine a witness.
• A finding that applicant missed a limitation period and is
out of time to apply.
• The decision maker used to work at the same firm as the
opposing party on your case.
• Adjudicator allowed the opposing party to add an issue in
dispute on the morning the hearing.
• Reasons for the denial of an application appeared to be a
template response.
 Exam Prep and Group Work
• REVIEW the “SALLY Scenario”

• What possible breaches of procedural fairness could

be argued by Sally?

• Which, if any, are likely to succeed?

• Discuss the reasons for your conclusions. 

• HINT – Use the Process Map to guide you through the

answer
 Notice
• The overarching requirement of the duty of fairness is the
idea of reasonableness.
• General rule:
“[N]otice must be adequate in all circumstances in order to afford to
those concerned a reasonable opportunity to present proofs and
arguments, and to respond to those presented in opposition.”
• Ongoing duty:
• it arises prior to the making of a decision and continues throughout
the course of a decision-making process.
• A party entitled to participate meaningfully in the decision-
making process, and in order to do so must be kept
apprised of any relevant issues that arise during the
course of a hearing.
Notice
Canada v. Mavi, 2011 SCC 30

• Issue: those who sponsor foreign nationals must undertake to cover the cost of
every benefit provided as social assistance to the sponsored family member. To
what extent must the government notify sponsors before certifying the debt and
registering it with the FC to collect?

• Factors:
• Nature of the scheme is straightforward debt collection – process should not be
complicated. The scheme leaves with the government with discretion to not take
enforcement in appropriate circumstances (statutory regime and Ontario)
• The nature of the decision is final and specific: will result in a judgment. No ability
to appeal. Absence of other remedies. The effect of the decision may be
significant, since debts can be large.
• PF content: notice of the claim, chance to respond with personal circumstances,
government must consider relevant circumstances, and notify (no reasons)
sponsors of decision.
Notice
Martin v. Ontario Civilian Police Commission, 2020 ONSC 1116 -
See par 80-91

https://www.canlii.org/en/on/onscdc/doc/2020/2020onsc1116/2020on
sc1116.pdf

• The Chief and Board submit that they were denied procedural
fairness.  They argue that, although the PSA allows the
Commission to make an interim order without notice or holding a
hearing in an emergency, it is nevertheless required to act with
procedural fairness.

• Unambiguous statutory authority to issue interim orders without

notice or a hearing - any common law rights to notice or a hearing
were, therefore, expressly displaced by the language of the PSA.
 Disclosure
• Concept of disclosure well known in the context of the criminal law.

• In R. v. Stinchcombe, the Supreme Court of Canada held that the Crown must
disclose “all relevant material” to the defence in a criminal prosecution BUT
Stinchcombe principles do not apply in the administrative context.

• In May v. Ferndale Institution, 2005 SCC 82 (re disclosure of prisoner

classification tool):
• “the duty of procedural fairness generally requires that the decision-maker
discloses the information he or she relied upon. The requirement is that the
individual must know the case he or she has to meet.”

• The question is not whether disclosure is required in administrative proceedings,

but how much disclosure is required in particular proceedings? What’s at
stake?
• See statutory regime (e.g., May),Tribunal’s rules, or general procedural codes
(e.g., SPPA, s. 5.1(3), 5.4)
• Courts have held that some circumstances, such as professional discipline and
the possibility of a loss of livelihood, require a high level of disclosure.
Disclosure
1657575 Ontario Inc. v. Hamilton (City), 2008 ONCA 570

• Hamilton passed by-law evidencing intention to reduce adult entertainment parlours. Mechanism: issuer of licence
can recommend to city council’s licensing committee that license be suspended or revoked for non-use. Triggers
hearing.

• Here, appellant’s parlour subject to recommendation, but did not provide grounds, contrary to by-law.

• CA:

• Disclosure is a basic element of natural justice at common law and, in the administrative context, procedural
fairness generally requires disclosure unless some competing interest prevails. The controlling idea: knowing
the case that one has to meet.

• The grounds identified simply referred to a series of largely irrelevant documents and sections of the by-law
relating to the committee's process and procedures. It would have been impossible for the appellant to extract
from this notice any meaningful understanding of the grounds for the recommendation to revoke its licence. In
fact, the notice itself was misleading.

• Court relied on the fact that the by-law made disclosure mandatory twice.

• Note: “How the decision maker would have responded to any of this changed conduct is irrelevant. It is not for this
court to speculate as to whether the result would have been the same had there been timely and adequate
Disclosure
Pritchard v. Ontario (Human Rights Com.), 2004 SCC 31

• Facts: P filed a HR complaint with the Human Rights Commission, which exercised
its discretion not to deal with the compliant on the basis that it was frivolous or
vexatious. In bringing the JR, P asked for a copy of a legal opinion provided to the
Commission.

• Issue: whether the opinion prepared by the Commission's in-house counsel is

subject to solicitor-client privilege?

• Court: Yes. Solicitor-client privilege arises where: (i) a communication between

solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii)
which is intended to be confidential by the parties.

• Applies with equal force in the in-house, admin or government context.

• Note: Court leaves open the possibility to a statutory override.

 Disclosure
Mission Institution v. Khela, 2014 SCC 24

• After allegedly arranging a hit on a fellow inmate, inmate was

transferred from a medium security to a maximum security
federal penitentiary. He challenged that decision by way of
application for habeas corpus made to provincial superior court,
rather than through statutory grievance process.

• What was not disclosed: information about the reliability of the

sources, the specific statements made by the sources, the
scoring matrix that informed Khela’s classification.

• Issue: extent of disclosure required when there is a need to

protect informant confidentiality
 Disclosure
• Statutory requirement that the DM give the prisoner “all the
information considered”

• Need to balance disclosure obligations with the needs of the

authorities in particular circumstances or the rights of other
persons.

• Information can be vetted by a court to determine its materiality

and relevance and may be disclosed only to counsel

• Duty of fairness satisfied if a party has sufficient information to

make informed submissions in regard to a particular matter.
Here, Khela wasn’t given enough information to know the case
he had to meet.
Oral Hearings
• Oral hearings - often demanded, but seldom required - not usually necessary to
reach an informed decision - Implications of expense and delay.

• When will the common law require that an oral hearing be provided?
 where a decision depends on findings of witness credibility

• SCC decision in Singh v. Minister of Employment and Immigration, in which the

Court held that a person claiming Convention refugee status was entitled to an
oral hearing. That was because s. 7 right was engaged, and refugee status
depended on whether claimants had a “well-founded fear of persecution” in
their homeland, and this was not something that could be sorted out on the
basis of a paper hearing.

• See Masters v. Ontario and Khan v. University of Ottawa.

• Where legislation does not preclude an oral hearing, however, recourse to

constitutional and quasi-constitutional remedies will not be necessary. The
common law may require that an oral hearing be held.
 Right to be Present
• The parties have a right to be present throughout the entire
hearing process.
• No part of the hearing should take place without all parties
present unless the party has voluntarily given up their right to
attend.
• A tribunal may proceed in the absence of a party where:

• a party has been served but does not attend

• a party continues to disrupt a proceeding
• a party “walks out” in protest
• the evidence is of a particularly sensitive nature
(rare)
 Right to Counsel
• There is no right to counsel in the context of administrative proceedings: British
Columbia (Attorney General) v. Christie, 2007 SCC 21

• This right is constitutionally protected by s. 10(b) the Charter - limited to

circumstances of “arrest or detention.” To extent beyond that would make s.
10(b) redundant.

• The Court noted that the right to counsel was understood historically as relevant
only in the context of the criminal law, rather than something required by the rule
of law itself, and concluded that there was no general constitutional right to
counsel – but left open may be recognized in specific and varied situations.

• The right to be represented by counsel is often set out in legislation (e.g., s. 10,
SPPA). This may extend beyond counsel to representation by a lay
representative, depending on the nature of the proceedings.

• It may be subject to limits – as it may add cost, delay, and related problems for
the administrative decision-maker. See Men’s Clothing Manufacturers Assn., and
Howard v. Stoney Mountain.
 Right to Counsel
• Court’s practical issues:

• The ability to exercise the right to legal counsel would be

extensive and expensive: advice and many or all types of
hearings. To what extent should the courts impose state
funding?

• Also, do we want to encourage litigation?

• The Court considered cost to be a primary reason for denying

the existence of such a constitutional right.
 Right to Counsel
EXCEPTION:
• In situations where a deprivation of life, liberty, or security of the person is at
stake, the principles of fundamental justice may require the provision of legal
representation to an individual.

• See New Brunswick (Minister of Health and Community Services) v. G.(J.),

[1999] 3 SCR 46 re whether there is a right to legal aid services where legal aid
regime denied services for custody proceedings.

• Section 7 was engaged because of the negative impact on psychological

integrity of J.G. This negative impact need not rise to the level of “nervous
shock” or “physical illness,” but must be greater than “ordinary stress or
anxiety.”

• Not in accordance with fundamental principals of justice given: complex hearing

involving extensive evidence, cross-exams, and objections; without counsel
appellant could not participate effectively and appellant had already been
separated from children for one year and gov. was seeking six more months,
Rights to Call Evidence and Cross Examine Witnesses
• The right to call and cross-examine witnesses is normally part of the right
to an oral hearing.

• Not an absolute right but tribunals often have own rules and limits
• SPPA limits – relevant – non-repetitive and non-abusive (10.1, 23(2))
• WSIAT – “cross questioning”
• IPC – witness questions directed through adjudicator

• General rule - parties must be afforded a reasonable opportunity to present

their cases.

• In Innisfil (Township) v. Vespra (Township), Justice Estey emphasized that the right
of cross-examination is not to be withheld on the basis of a judgment by the tribunal
that it is of limited utility:

“The decision to exercise the right is solely that of the holder of the right. He, of course,
must exercise it at his peril as is the case in any other administrative or judicial
proceeding where such a right arises.”
 Timeliness and Delay
• Problem: even though tribunals are supposed to provide more efficient,
less formal, and less expensive justice than courts – often not the case.

• Additionally: administrative decision-makers are not usually under a

specific statutory timelines for holding hearings or making decisions.

• There is no Charter right to have an administrative matter heard or

determined within a reasonable time – there is no equivalent to the right
to a trial within a reasonable time as in s. 11(b) of the Charter which
applies only to persons charged with an offence.

• However, courts may use mandamus where, among other things, there
is unreasonable delay.

• Also, statutes may codify timelines. See s. 21.1(2), SPPA.

 Timeliness and Delay
• Delay in the administrative process can have significant consequences – Blencoe v. British Columbia
(Human Rights Commission)

• A former minister in a British Columbia government sought an order staying human rights tribunal
proceedings in complaints against him, over 30 months after the date the complaints were filed.
During that time his political career came to an end: he was dismissed from Cabinet, expelled from
his caucus, and suffered from depression.

• Issue: did the delay breach his s. 7 right?

• The majority of the Supreme Court concluded that the harm resulted from bad publicity, not the delay
in the proceedings.

• Court held that, in some circumstances, delay in the administrative process might rise to the level of a
deprivation of liberty or security of the person under s. 7 of the Charter, which would violate the right if
not in accordance with the principles of fundamental justice.

• In addition, the majority concluded that “undue” delay in an administrative proceeding might impair
the fairness of a hearing, which can be remedied under admin law (e.g., essential witnesses or
evidence lost, or memories faded).

• Also, evidentiary concerns aside, delay may result in a denial of PF or abuse of process (e.g.
significant psychological harm, or stigma). The delay must be “clearly unacceptable” and amount to
“significant prejudice.”
 Timeliness and Delay
• Blencoe v. British Columbia (Human Rights Commission) – cont’d

• The minority of the Court - dealt with the matter solely on administrative law
grounds and set out three considerations that had to be balanced in considering
complaints of administrative delay:

1. the time taken compared to the inherent time requirements of the matter before the
particular administrative body, which would encompass legal complexities (including the
presence of any especially complex systemic issues) and factual complexities (including the
need to gather large amounts of information or technical data), as well as reasonable periods
of time for procedural safeguards that protect parties or the public;

2. the causes of delay beyond the inherent time requirements of the matter, which would
include consideration of such elements as whether the affected individual contributed to or
waived parts of the delay and whether the administrative body used as efficiently as possible
those resources it had available; and

3. the impact of the delay, considered as encompassing both prejudice in an evidentiary sense
and other harms to the lives of real people impacted by the ongoing delay. This may also
include a consideration of the efforts by various parties to minimize negative impacts by
providing information or interim solutions.
 Timeliness and Delay
• The minority emphasized the importance of a contextual inquiry into the problem

• In the context of administrative proceedings, there were important interests, apart

from those of persons complaining of delay, that had to be considered—in
Blencoe’s case, the interests of the women who complained of sexual
harassment.

• Staying the ability of the human rights tribunal to hold the hearing would deny the
complainants their right to have their complaints heard. Thus, although they
considered that the delay in Blencoe’s case constituted an abuse of process, the
minority of the Court considered that a stay of proceedings was inappropriate and
would have made an order to expedite the proceedings instead.

• Following Blencoe, it is clear that delay in providing a hearing—or, presumably, in

rendering a decision—may breach the duty of fairness and may even rise to the
level of a Charter breach.

• But the normal remedy for delay is likely to be an order in the nature of
mandamus, requiring the tribunal to perform its duty expeditiously.
 The Duty to Give Reasons
• Historically – no duty on administrative decision-makers to give reasons but this changed
after Baker - Justice L’Heureux-Dubé stated simply:

• In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of

procedural fairness will require the provision of a written explanation for a decision. The
strong arguments demonstrating the advantages of written reasons suggest that, in cases
such as this where the decision has important significance for the individual, when there
is a statutory right of appeal, or in other circumstances, some form of reasons should be
required.

• Reasons are not required for all decisions; rather, they are required in “certain
circumstances.”
1. Reasons are required if a particular decision has “important significance” for
an individual, because public actors demonstrate respect for those affected by
their decisions by justifying the decisions they make.

2. Reasons are also required if a statutory appeal process exists to facilitate the
workings of that process.

• It is difficult, if not impossible, to determine whether to appeal a particular decision and which
arguments to make if no explanation is provided for that decision.
The Duty to Give Reasons
• Baker leaves open large discretion for courts to require reasons.

• Contemplates flexibility in complying with the duty to give reasons –

provide “some form of reasons” and, as a result, reasons may vary in
length and formality in different circumstances.

• Indeed, in Baker the Court accepted that informal notes prepared by one
immigration officer for the advice of another satisfied the duty.

• Two main concerns on procedural review:

1. Are reasons required? There may be a failure to provide reasons in

circumstances in which a court concludes that reasons were required.

2. Were the reasons provided adequate? Questions may arise as to the

adequacy of reasons proffered in particular circumstances.
The Duty to Give Reasons
Congrégation des témoins de Jéhovah de
St‑Jérôme‑Lafontaine v. Lafontaine (Village), 2004 SCC 48
• Facts: Municipality refused to approve a rezoning
application to allow the Congregation to build a place of
worship – without providing any reasons.
• Issue: were reasons owed?
• Court: there’s no doubt that PF was owed given the
decision affected the Congration’s rights and interests.
• Baker factors suggest reasons owed: concern about
arbitrariness, lack of appeal procedure, decision was
important to Congregation, legitimate expectation that
application would be  thoroughly vetted and considered »
 The Duty to Give Reasons
• The Court looked at the duty to provide reasons in Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62

• The appellant Nurses’ Union argued that the labour arbitrator, who had provided
some reasons, nonetheless provided reasons that were so inadequate that they
rendered the decision-making process unfair, thus engaging the correctness
standard of review.

• The Supreme Court disagreed, and held that where reasons are provided, the
adequacy of the reasons is not reviewable as a matter of procedural fairness and
is not a freestanding ground of review.

• In other words, where applicants allege a deficiency in reasons, their remedy is

substantive review and, in that review was conducted on the reasonableness
standard.

• The point: if there are reasons – then there is no breach in procedural fairness on
that basis.
 The Duty to Give Reasons
• Conceptual wrinkle: Alberta (IPC) v. Alberta Teachers’ Association, 2011 SCC 61, which
dealt with an “implied decision.”

• Facts: Alberta IPC received complaint that teachers’ assn. disclosed private information.
At the time, PIPA required the IPC to complete an inquiry within 90 days unless it had
notified the parties it needed longer. The IPC took 22 months to extend the time to
complete inquiry. Seven months later IPC adjudicator found assn. breached PIPA.

• Issue: on JR, the assn. argued for the first time that the IPC had no jurisdiction given the
failure to extend 90-day limit on time.

• Court:
• Found an “implied decision” on the basis of the IPC’s past case law. Note: your reasons may lie
elsewhere.

• Emphasized that courts are not to reformulate a tribunal’s reasons in order to render them
reasonable.

• It may sometimes be necessary to return a decision in order to allow a decision-maker to

provide reasons on a particular matter, thereby allowing the Court to defer on an informed
basis if the decision is reviewed subsequently.
 The Duty to Give Reasons
• All of this is to say that much requires clarification in future
cases.

• At least this much is clear: a wholesale failure to provide reasons

will likely constitute a breach of the duty of fairness.

• Following Newfoundland Nurses, however, the Court will not be

concerned with the adequacy or sufficiency of reasons in
determining whether the duty to provide reasons has been met.

• The focus will be on the substantive question: do the reasons,

such as they are “allow the reviewing court to understand why
the tribunal made its decision and permit it to determine whether
the conclusion is within the range of acceptable outcomes”?
 Determining the content of the duty
Checklist
• If there is an enabling statute, then that is where you go to determine the
content of the duty

• If the statute is NOT a complete procedural code or is there room or need

to supplement with the common law then consider:

1. Right to be heard
• Notice, Disclosure, Oral hearings, Right to be Present, Right to
counsel, Rights to call evidence, Timeliness and delay, Duty to give
reasons

2. Right to an unbiased decision maker:

• Issues re: Individual bias
• Issues: re: Institutional bias / Insufficient independence
 Right to an Unbiased Decision Maker
Overview
• The right to an unbiased decision maker is the second broad
class of procedural obligations.

• Bias stems from individual conduct by the decision maker,

like attitudinal bias or prejudgment, pecuniary interest, past
conduct etc.

• Bias also stems from the institution itself – the decision making
body as a whole (the tribunal), and its insufficient
independence or institutional bias.

• BUT be aware that it may be difficult to challenge on the basis

of institutional bias if the statute creates the administrative
regime - common law cannot prevail over a statute.
 Bias and Independence
• Administrative tribunals must be free from an appearance of bias - that
is, a reasonable person must conclude that an administrative decision-
maker is sufficiently free of factors that could interfere with his or her
ability to make impartial judgments (commonly known as the
"reasonable apprehension of bias" test)

• Independence is one important indicator of whether there is an

appearance of bias in an administrative body. Although administrative
independence is not required to be as strict as judicial independence,
there are still certain minimum requirements such as security of tenure
and independent administrative control. However, administrative
independence is not guaranteed under the constitution, and can be
ousted by statutory language.

• Once a court has determined that there has been a reasonable

apprehension of bias, the decision in question must be void ab initio, as
there is no remedy for the damage created by the apprehension of bias.
Bias – General test
General Test for Bias
• The apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to
the question and obtaining thereon the required information.

KEY CASE - Committee for Justice and Liberty v. National

Energy Board, [1976] 1. S.C.R. 369 at p. 394:
• … the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to
the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is “what would an
informed person, viewing the matter realistically and practically
–and having thought the matter through – conclude. Would he
think that it more likely than not that [the decision maker]
whether consciously or unconsciously, would not decide fairly.
 Bias
• Allegations of reasonable apprehension of bias exist in 2
major forms in administrative law:

(1) perceptions of individual bias, which deal with the

impartiality of individual decision-makers; and

(2) perceptions of institutional bias and/or a lack of

independence, which deal with whether reasonable
perceptions of partiality regarding the decision-making
body as a whole can be raised in a substantial number of
cases.
Individual Bias

1. Antagonism during the hearing

2. Association between party and decision-maker
3. Involvement of decision-maker in earlier stage of
process
4. Prejudgment by decision-maker (as evidenced by
statements made before, during or after the
hearing)
5. Monetary/other personal interest
 Individual Bias
1. Antagonism During Hearing

Unreasonably aggressive questions or critical commentary

Baker

• A "reasonable apprehension of bias" that Officer Lorenz’s decision was based not on the evidence but on the
facts that Baker was a single mother with several children and had psychiatric illness, and thus would be
“tremendous strain on our social welfare systems for (probably) the rest of her life.”

Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856

• Adjudicator demonstrated “open disbelief” of appellant, and cross-examined him about whether he was
associated with a terrorist organization

S.G. v. Criminal Injuries Compensation Board, 2016 ONSC 7485 (Div. Ct.)

• “the member asked a number of questions that reflected rape myth stereotypes about the reactions of victims of
sexual assault.  For example, he repeatedly asked why the appellant had not screamed or run away, both
questions that reflect rape myths that would be an improper line of cross-examination in a criminal trial.”
• “the behaviour of the member during the hearing, coupled with the tone and line of questioning, gives rise to
concerns about the fairness of the proceeding.  He was aggressive in tone, and he demonstrated impatience, if
not skepticism during the appellants testimony.”
 Individual Bias
2. Association with a Party

Marques v. Dylex Ltd., (1977), 81 DLR (4th) 554 (Div. Ct.)

• The employer challenged a decision of the Ontario Labour Relations Board to certify a union because
one of the members of the board had been a lawyer of a firm that acted for a union that became part
of the union that was certified (even though the board member had no contact with this specific client).
The Court did not find a RAOB despite the connection and previous association. There was no RAOB
because the people chosen to be chairs will have labour relations expertise and will likely know the
parties. In this case the court found that context is important.

See also Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 2130 (CanLII)

•Tribunalmembers are selected because they have experience, knowledge and training of the issues
they adjudicate. That may include representing parties in similar matters. Tribunal finds that
reasonable and well-informed person would understand the change in role that occurs when advocate
becomes adjudicator.

However, see Terceira, Melo v. Labourers International Union of North America, 2013 ONSC 3344 (Div.
Ct.)
• OLRB decision overturned given that the board’s Vice-Chair had previously advised on the parties on
very similar, if not identical, issues.
 Individual Bias
2. Association with a Party

United Enterprises Ltd. Saskatchewan (Liquor and Gaming

Licensing Commission), [1997] 3 WWR 497
• Court found ROAB given the “repetition and cumulative effect”
of the manner in which the panel dealt with respondent’s
counsel, including arriving together, refferrign to him by first
name, and extending an invitation to attend a BBQ.

Gedge v. Hearing Aid Practitioners Board, 2011 NLCA 50

• Court of Appeal found a ROAB given the relationships between
the tribunal’s three members and the applicant: the applicant’s
primary competitor, the girlfriend of a former business partner,
and a member of the public.
Individual Bias
3. Involvement at Preliminary Stage

•In Committee for Justice and Liberty, the National Energy Board had a hearing to
consider competing applications for a pipeline. The Chairman had previously been part
of a group that had set up one of the companies competing for the pipeline. In
determining whether the chairman’s prior involvement in the group raised a reasonable
apprehension of bias, The Court considered:
• The nature and degree of prior involvement. In this case it had been VERY close (it
was a small study group)
• Recency or the time past since the prior involvement. Only two years had passed
since the chairman left the study group.
 
•The relationship between the Chair and the company was personal. It was also
extensive, specific, and recent.

•Insome cases the statute may actually authorize prior involvement. For example, in
Brosseau v. Alberta Securities Commission, [1989] 1 SCR 301 the Court found that
there can be overlapping functions if there is statutory authorization.
Individual Bias
3. Involvement at Preliminary Stage

Gardner v. Ontario Civilian Commission on Police Services, 2004 CanLII 2540 (Div. Ct.)
• A hearing was held before a panel consisting of three members of the Commission. All
three panel members had participated in Commission meetings at which an
investigative report was tabled and discussed and at which the appellant's credibility
was the subject of adverse comment. The panel found that the appellant was guilty of
misconduct.
• The appellant appealed, arguing that the composition of the panel gave rise to a
reasonable apprehension of bias and that the panel therefore lost jurisdiction to conduct
the hearing. Court agreed.

Township of Vespa v. Ontario (Municipal Board), (1983) 43 OR 680 (Div. Ct.)

• ROAB after members of the board reheard case after a successful JR.

Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 (Div. Ct.)

• The mere fact that an adjudicator determined a request for reconsideration of his or
her own decision does not, in and of itself, create a ROAB since the legislative
scheme made requests discretionary. 
 Individual Bias
4. Prejudgment by decision‐maker - Attitudinal Bias

• Predisposition toward outcome

• Has the decision‐maker or the organization to which he/she belongs
demonstrated in the past a particular attitude towards this issue that is likely to
create a reasonable of apprehension of bias in the present case?
• Is it implicit in the type of work done by this agency that previous statements
ought not to automatically exclude the person from being involved in a
determination of a subsequent similar issue?

Nova Scotia (Attorney General) v. MacLean, 2017 NSCA 24

• Past comments made by the Chair were challenged as an indication of bias.

• Even though the judicial review was premature, the Court of Appeal heard it, as
the matter had been ongoing since 2014.
• The Court found that the adjudicator’s decision was correct. Judicial impartiality
has strong presumption and adjudicator’s letters to the government 15 years
earlier were too remote in subject, time and nexus to the parties to overcome it.
 Individual Bias

4. Prejudgment by decision‐maker - Attitudinal Bias

• In the 1980 ONCA case of Paine v. University of Toronto the court found
that the context allowed for tolerance of opinions from the decision
makers. This case involved the tenure evaluation process of a professor.

• Paine was denied tenure after a peer-review process. One of the reviews
was negative and this person had maintained this attitude for quite some
time; this same person ends up on the tenure committee after having
expressed that opinion. The court held there was no RAOB

• The court found that the process was clear – it involved peers and
everyone knew from day 1 that they are being watched/considered for
tenure. It’s inevitable that people with pre-conceived ideas will end up on
tenure committees. Therefore, because of the nature of the process,
there was a great deal of tolerance for general opinions.
 Individual Bias
4. Prejudgment by decision‐maker - Attitudinal Bias

• Pre-judgment may also emerge via comments made in a political context.

• In the case of Old St. Boniface – a large condo development was being built. A
City Counselor supported the development at committee. There is an election and
he sits on a committee for the rezoning hearing.

• The issue in this case is whether a RAOB precludes this rezoning decision
because of attitudinal predisposition.

• Sopinka writing for the majority wrote that - Municipal counselors, in cases of
attitudinal bias and pre-judgement, will not be disqualified unless there is evidence
of having a closed mind and there has been an expression of final opinion that
cannot be dislodged.” The DM must be amenable to persuasion so that
representations must not be futile. The case also noted that decisions made by
elected people are not the same as judicial/quasi-judicial decisions. This more on
the legislative or policy end of the spectrum.
 Individual Bias
5. Monetary or other personal interest

• The general rule is that any direct interest – pecuniary or otherwise – will give rise to the
disqualification of a decision maker.

• In the 1984 FCA case of Energy Probe and Canada (Atomic Energy Control Board) the court stated
that the test in regards to a pecuniary interest is that it must be “sufficiently certain to arise”

• The Board was deciding whether to renew Ontario Hydro facility. Energy Probe (an interest group)
claimed that Olsen (on the Board) was biased – he owned a cable company who sold cables to
Ontario Hydro. The issue was whether there was a RAOB on the basis of a direct pecuniary
interest?

• The court held there was no direct pecuniary interest. For a direct pecuniary interest to constitute
bias, there has to be a fairly serious level of certainty that the decision maker will benefit or suffer
economically before there will be found to be a direct link and an automatic disqualification.
 
• Any direct interest – pecuniary or otherwise – will give rise to disqualification

• Energy Probe
• Matsqui Indian Band
• Burnbrae Farms
• Moskalyk‐Walter
 Individual Bias
Other Examples of Possible Individual Bias

• Meets with one party in the absence of other parties

• Has a friendship with someone with invested interest in the case
• Is related to someone with invested interests in the case
• Has financial interest in the outcome of the case
• Is part of an association with invested interest in the outcome
• Shares opinions before evidence and arguments are heard
• Persistently favours one party during the hearing process
• Expresses a strong like or dislike for a party/witnesses
• Has been in litigation against a party/witness in a proceeding
• Has had a significant professional relationship with a party/witness
• Accepts gifts or favours from a party or witness
 Impartiality and Independence

A brief review …
• Individual bias and impartiality of a decision-maker is
determined by examining his or her state of mind.
• Institutional bias and impartiality refers to a state of mind or
attitude of the tribunal in relation to the issues and the
parties in a particular case.
• Independence of a tribunal is a matter of its status and
structure.
 Impartiality and Independence
• Impartiality refers to a state of mind or attitude of the
tribunal in relation to the issues and the parties in a
particular case. The word “impartial” connotes absence of
bias, actual or perceived.
• Independence reflects or embodies the traditional
constitutional value of judicial independence. As such, it
connotes not merely a state of mind or attitude in the actual
exercise of judicial functions, but a status or relationship to
others, particularly to the executive branch of government,
that rests on objective conditions or guarantees.
Independence concerns the insulation of tribunal members
from outside influence, something to be judged by reference
to security of tenure and remuneration and security from
external interference.
 Institutional Bias
Test – The test for institutional bias, which comes from 2747-3174
Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 SCR 919 is:
• The determination of institutional bias presupposes that a well-
informed person, viewing the matter realistically and practically --
and having thought the matter through -- would have a reasonable
apprehension of bias in a substantial number of cases.

• Court found bias on an institutional level. Case also discussed lack of

independence.
 ok – The members appointed for 2, 3 or 5 years
 ok - Members could be dismissed for cause and could challenge
their dismissal in court
X no - Overlapping role of lawyers in both prosecution and
adjudication – no
X no - Overlapping roles of directors
 Institutional Bias
• Note that a statute may require some amount of partiality = a built-in-bias – this
is fine as long as it does not violate the Charter

Brosseau v. Alberta Securities Commission

• Brosseau was a solicitor who prepared the prospectus of a company that later
went into bankruptcy. The Alberta Securities Commission launched an
investigation into Brosseau’s actions. Brosseau argued that the Commission
suffered from institutional bias due to Chair's multiple functions, which allowed
him to initiate investigations, prosecute people, and then act as a judge on the
panel determining their case, i.e. he/she involved at both the investigatory and
adjudicatory levels. The Commission disagreed – they argued that while not
specifically authorized by statute, implicit authority for the investigation could be
found in the general scheme of the Securities Act.
• In some instances, an overlap in functions (which is generally not permitted
on account of bias) is a necessary element to fulfilling an decision maker's
mandate. Provided that the particular decision-maker is not acting outside its
statutory authority (and the governing statute is constitutional), an overlap in
functions may not give rise to a reasonable apprehension of bias.
Institutional Bias
1. Closeness between an agency / tribunal and
government
2. Sub-delegation
3. Intra‐Agency Consultation
4. Consistent Decisions and Guidelines
5. Multiple and Overlapping Functions: of counsel, of
decision-maker
Institutional Bias
1. Closeness between an agency / tribunal and
government

• Some issues to consider:

• How much power does a chair have over appointing panels?

• Are agency staff employed by the agency or the government?
• How much does an agency have to follow government policy?
• Is the agency chair subject to a performance evaluation?
• Does the agency’s government department decide its
budget?
Institutional Bias
1. Closeness between an agency / tribunal and government

• Administrative decision-making bodies have been

created in a way that leaves them connected to
government. Most have a link with the executive branch
of government through a minister of Cabinet. Generally,
under their enabling statutes, tribunals, or at least their
chairs, are required to maintain some contact with this
minister.

• Users of the tribunal might be concerned that the

minister might use these opportunities to dictate,
whether explicitly or implicitly, how particular files should
be decided
 Institutional Bias
2. Sub-Delegation / Delegation of Authority to Decide

•If you are a decision-maker, can you delegate your duty to decide to
someone else?
Permitted when a statute states that a ministry “may” do something, it is
specifically authorized, or it is implied
Otherwise, whether it is allowed depends on the nature of the power being
delegated

•Improper delegation renders decision unlawful

•When a legislative provision delegates some decision-making power to a

delegate, that delegate may not in turn ask a sub-delegate to exercise the
decision making-power in their place.
 Institutional Bias
2. Sub-Delegation / Delegation of Authority to Decide

•Suresh – deportation decision – serious issues – Minister had to be the one to

make the decision and give reasons – not in the form of advice/suggestion of an
immigration officer.

•Ontario(Director, Disability Support Program) v. Surdivall, [2014] O.J. No. 1505

(CA), leave to appeal to SCC refused.

•The Court of Appeal for Ontario found that the Social Benefits Tribunal had the
discretion to reduce the amount of an overpayment owed by a recipient to the
Director of the ODSP, despite the fact that the relevant statute described any
overpayment as a “debt owed to the Crown”.

•TheCourt of Appeal found that the Tribunal had this discretion because the Tribunal
has the powers of the Director, and the statute uses the word “may” in describing
the mechanisms available to the Director in recovering an overpayment.
 Institutional Bias
3. Intra‐Agency Consultation – “s/he who hears must decide”

•The issue of consultation poses a challenge to administrative tribunals who want to

foster coherence and consistent decisions - but does it breach the natural justice
principle – s/he who hears must decide?

•It is improper for:

•Anyone who missed part of the hearing to help to decide
•Anyone associated with a tribunal to pressure the panel

•Exceptions and limits:

•If a member of a panel cannot complete the hearing, the other members may decide
•Parties may agree to have a new member read transcripts/agreed statements of the
evidence to complete the hearing

•
Institutional Bias

3. Intra‐Agency Consultation – “he who hears must

decide”

• Trilogy of cases set out the principles: Consolidated

Bathurst, Tremblay, Ellis Don where the SCC says
consultation is good:
• Large, busy tribunal; consistency is important; privative clause prevents
courts from dealing with inconsistencies; tripartite structure of board implies
exchanges of views
But:
• Must be initiated by the adjudicators themselves, voluntary
• Must be limited to questions of policy and law
• Evidence cannot be re‐assessed – facts taken as found and if new
issues/facts introduced must notify parties and permit them to comment
• Even on questions of law and policy, the decision‐makers must be free to
take whatever decision they deemed right in their conscience – no pressure
Institutional Bias
3. Intra‐Agency Consultation – “s/he who hears must
decide”

• Consolidated Bathurst
• Board member could request full board meeting where contemplating a
change in policy
• Had to present draft reasons
• No compulsion (no minutes, not mandatory, no vote)
• Dissent did not believe there was a real distinction between policy and
fact
“Full board meetings are a practical means of calling upon the
accumulated experience of board members when making an important
policy decision and obviate the possibility of different panels inadvertently
deciding similar issues in a different way.  The rules of natural justice
should reconcile the characteristics and exigencies of decision making by
specialized tribunals with the procedural rights of the parties.”
Institutional Bias

3. Intra‐Agency Consultation – “s/he who hears must

decide”

• Tremblay
• “Consensus table” process for social benefits decisions
• Flawed because creates systemic pressure:
• Effectively compulsory when counsel suggests it
• President may initiate
• A vote is taken, attendance and minutes kept
• President could resolve disagreement even though he did not hear the case
• In this case reasonable apprehension of bias because he had
expressed an opinion from the outset
Institutional Bias
3. Intra‐Agency Consultation – “s/he who hears must
decide”

• Impacts on deliberative secrecy:

• Ellis Don
• Draft decision revealed a change in a factual finding – an attempt to
examine panel members was dismissed
• Deliberative secrecy important to protect value of consultative
process, independence
• Without evidence that facts were discussed, must presume they were
not
• Dissent: the change is enough evidence of the improper discussions
Institutional Bias
3. Intra‐Agency Consultation – “s/he who hears must decide”

• RECENT CASE – Mary Shuttleworth

v. Licence Appeal Tribunal, 2018 ONSC 3790 (CanLII)

[64] The review was conducted by a person at a superior level of authority without
a request from the adjudicator to do so. There is no evidence as to the nature of the
changes made by the executive chair although counsel for the Tribunal swore that
decision-makers are free to make whatever decision they wish.

[65] The executive chair’s review is in breach of the first requirement set out in
Consolidated Bathurst and applied in Ellis-Don that consultation cannot be imposed
by a superior level of authority within the administrative hierarchy, but can only be
requested by the adjudicator herself. This breach creates a reasonable
apprehension of lack of independence."

• http://sossinblog.osgoode.yorku.ca/2018/10/shuttleworth-adjudicative-
ethics-and-the-modern-tribunal/
Institutional Bias
3. Intra‐Agency Consultation - Involvement of Agency Counsel

• Not appropriate for lawyers to have overlapping functions

(investigation, referral, prosecution, assistance to decision‐
maker)
• Counsel’s advice to the agency is subject to solicitor‐client
privilege when given outside hearing context
• If advice given during course of a hearing, parties must be
aware and have opportunity to respond
• Counsel must not appear to be in fact running the hearing
• Decisions must be made by decision‐maker
• Counsel must not be seen to be taking sides
• Counsel cannot provide advice during deliberation phase, but
can assist in preparation of reasons
Institutional bias
3. Intra‐Agency Consultation – Involvement of Agency Counsel:

• Khan - Assistance Drafting Reasons

• College of Physicians Discipline Committee
• Decision‐maker must retain complete control over the result
• There should be no compulsion to have lawyer involved
• Role of counsel was not to provide legal advice or participate in deliberations, but to assist in the expression
of the reasons
• No evidence that new facts, arguments or legal issues were being considered
• Important that this was review/revision of a draft, not an independent piece of work

• Krever (FCA) - Drafting Reasons

• No reason for concern about counsel writing inquiry report, as long as it is reviewed and the Commission
adopts it as his own
• Not a decision
• Must be realistic

• Bovbel - Review of Reasons

• Review of all immigration decisions by legal department
• Benefits: a lay tribunal applying complex area of law; not about facts but about ensuring consistent
application of law to facts
• Allowed to look at facts only to the extent that decision’s review reveals an inconsistency
• No evidence that counsel is not free to decide or that review process has led to abuse
Institutional Bias
4. Consistent Decisions and Guidelines

• Guidelines govern internal operations of a tribunal. Attempts to apply

tribunal's collective wisdom in interpreting statute or answering policy
questions. Balances the need for individual hearing versus consistency.

• Guidelines should be subject to public consultation process before they

are implemented (Immigration and Refugee Board News Release).
Guidelines receive legitimacy where there is transparency.

• Guidelines should be published and made available to parties before

hearing.

• Note that common law has been unsuccessful at applying procedural

fairness concepts to rulemaking - therefore public consultation becomes
substitute for judicial review.
Institutional Bias
4. Consistent Decisions and Guidelines
• Thamotheram
• IRB guidelines regarding “reverse questioning”
• Guidelines do not fetter discretion when there is an option not to follow them
• Requirement to explain deviation is not coercive but rather merely assists
with coherence
• Monitoring of adherence to guidelines is permissible where not mandatory or
not frequent or consistent
• In this case, was not coercive and no evidence of sanction being threatened

• Cdn Telephone Employees

• General “directives” by Human Rights Commission in relation to pay equity
were authorized by statute to have force of law
• This does not compromise independence since a Tribunal is bound to follow
the law
• Earlier decisions had found that mandatory guidelines violated
independence where they were not statutorily permitted
Institutional Bias
5. Multiple and Overlapping Functions: of counsel, of decision-maker

• Overlapping functions contribute to institutional bias when those who

recommend, investigate or prosecute proceedings against a person
also decide whether to take away the person’s rights, privileges, or
benefits

• A clear separation of roles avoids the appearance of bias

• Quebec Regie

• A lawyer could be involved in all stages, including referral, prosecution,

and preparation of reasons
• The same director could both decide that a hearing was to be held and
then hear the case
• No apparent safeguards
 Lack of Independence

• Independence is about the structural or institutional framework

which secures this impartiality, not only in the minds of the
tribunal members but also in the perception of the public.

• Although administrative independence is not required to be as

strict as judicial independence, there are still certain minimum
requirements, such as security of tenure and independent
administrative control.

• However, administrative independence is not guaranteed under

the constitution like the courts, and can be ousted by statutory
language.
 Lack of Independence
•Thestarting point for examining institutional independence is by looking at judicial
independence.

•3 objective structural conditions

security of tenure
financial security
administrative (or institutional) control

•Inthe context of the courts, these conditions reassure the public that the possibility
of interference in judicial decision making by the executive and legislative branches
of government has been reduced, if not eliminated.

•Judges also have adjudicative independence - the ability of a decision-maker to

decide, free of inappropriate interference by other decision-makers. Such
inappropriate interference may include, for example, pressure to decide a certain
way or substitution of another’s decision for one’s own.
 Lack of Independence
The test for adequate tribunal independence:

• Valente v. The Queen was the first Supreme Court case in

Canada to suggest the idea that the guarantees for judicial
independence could also be applied to a variety of tribunals.

• Administrative tribunals do not have to meet the same

degree of independence as the courts do.

• The methodological approach taken by the courts when the

independence of an administrative tribunal is challenged
consists of applying the guarantees of tribunal
independence in a flexible way to account for the functions
performed by the tribunal under scrutiny.
Lack of Independence

• This flexible method was stated concisely in Canadian Pacific Ltd. v.

Matsqui Indian Band by Lamer C.J.:

• [W]hile administrative tribunals are subject to the Valente principles,

the test for institutional independence must be applied in light of the
functions being performed by the particular tribunal at issue.

• The requisite level of institutional independence (i.e., security of

tenure, financial security and administrative control) will depend on
the nature of the tribunal, the interests at stake, and other indices of
independence such as oaths of office.
 Lack of Independence
– Security of Tenure
• The SCC decision of Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor
Control and Licensing Branch) examined the degree of independence that is required of
members sitting on administrative tribunals empowered to impose penalties.

• Ocean Port Hotel

• The B.C. Liquor Appeal Board was a liquor-licensing body that could impose sanctions and
remove licences upon finding that a licensee had contravened the province’s Liquor Control
and Licensing Act.
• The RCMP had reported that Ocean Port Hotel was responsible for five incidents that
violated the Act and the terms of its liquor licence.
• The Liquor Control and Licensing Branch, a regulatory branch established under the Act,
imposed a two-day suspension on Ocean Port’s liquor licence.
• The Liquor Appeal Board held a hearing de novo and confirmed the suspension, finding
that the evidence supported four of the five alleged infractions.
• On appeal to the B.C. Court of Appeal, Ocean Port argued that the Liquor Appeal Board
lacked sufficient independence to render a fair hearing.
• It submitted that the Board’s decision was therefore invalid. The hotel took issue with the
terms of appointment of the members of the Liquor Appeal Board. The Act indicated that
the chair and the members of the Board were to serve “at the pleasure of the Lieutenant
Governor in Council.”
 Lack of Independence
– Security of Tenure
• Ocean Port Hotel
• The case attempted to lay to rest the controversial issue of whether “at pleasure”
appointments provide a satisfactory degree of independence for decision-makers
sitting on tribunals that impose penalties.
• This was the Supreme Court’s first opportunity to address the crucial issue of “at
pleasure” appointments which were clearly not as secure as fixed-term
appointments.
• Provides reasons why administrative tribunals should not need the same degree
of independence as courts and clearly indicated that there is no freestanding
constitutional guarantee of independence for administrative tribunals.
• This is because administrative tribunals form part of the executive branch of
government. The Court held that because constitutional guarantees of
independence serve primarily to protect the judiciary from interference by the
executive, they cannot work to protect tribunals from the branch of government of
which they are a part.
• At the same time, Supreme Court and other Canadian jurisprudence has shown
a willingness to expand the notion of “court” to allow litigants before some lesser
judicial entities the benefits of constitutional guarantees of independence.
 Lack of Independence
– Security of Tenure
• Ocean Port did NOT however address the fundamental problem with “at
pleasure” appointments.

• In Keen v. Canada, Canada’s Nuclear Safety Commission President

Linda Keen was removed from her job over a decision to keep a nuclear
power plant closed for its failure to meet safety standards.

• Ms. Keen applied to the Federal Court for judicial review. At issue was
whether she received adequate procedural fairness in the manner of her
dismissal.

• The Court held that the circumstances of her termination were sufficient
to satisfy the requirements of fairness for an “at pleasure” appointment
(which is how her appointment as president was characterized). The
governor in council’s dismissal was therefore upheld.
 Lack of Independence
– Security of Tenure
How to resolve Ocean Port Hotel and Keen?

• Ocean Port Hotel affirmed that a variety of tribunal appointments can satisfy the
requirement of security of tenure so long as there are no constitutional standards at play
and the terms of the appointment derive from constitutionally valid legislation.

• Keen shows that, as a practical reality, governments still can, and do, interfere with
administrative decision making because of improper understandings about tribunal
accountability

• The Federal Court was faithful to the Supreme Court’s guidance in Dunsmuir, which
provided that a lower level of procedural fairness is required on termination of an
“at pleasure” appointee – court in Dunsmuir stated - with respect to “at pleasure”
appointments, procedural fairness is needed “to ensure that public power is not
exercised capriciously.
 Lack of Independence
– Security of Tenure
• In Bell Canada v. Canadian Telephone Employees
Association, 2003 SCC 36, a challenge was made to the
Chair’s power to extend appointments that were set to expire
during the course of a hearing.

• The Court found that extending the appointments did not

offend independence, because the decision was made by the
Chair, not the Minister.

• The Chair’s ability to extend the appointments did not offend

impartiality, because there was no reason to believe that
members would feel pressure to adopt the views of the Chair.
 
 Lack of Independence
– Security of Tenure

Alex Couture v. Canada (Attorney General), 1991 CanLII 3120

• The Quebec Court of Appeal found that part time appointment

would be problematic if other activities of the member were
likely to put them in conflict. The court also pointed to other
safeguards that would assist regarding bias in statute – such
as

• Oath of office
• Limit on number of re-appointments
• Specific prohibition of financial interests
• Removal was for cause
 Lack of Independence
– Financial Security
Idea is to ensure compensation decisions are not arbitrary or
otherwise susceptible to influence decision‐making and that there is no
need to supplement income

• Judges have a fixed salary and the decision is made by

remuneration commission – a legal process for determination of
salary, with no room for arbitrary changes by government

• In general, a Tribunal must have fixed salary and decisions should

be relatively arms’ length from government

• In the previously discussed Bell Telephone case, Human Rights

Tribunal remuneration was set by the Human Rights Commission, a
party that appeared before it. This was found to be not acceptable
and was ultimately changed.
 Lack of Independence
– Financial Security
• In the Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3

• The tribunal members had no guarantee of any salary at all – theoretically

could decide not to pay if do not like decision

• The SCC found that there would have a reasonable apprehension that
members of the appeal tribunals were not sufficiently independent. 

• Three factors lead to this conclusion:  (1) the complete absence of financial

security for members of the tribunals; (2) the complete absence of security of
tenure and (3) the fact that the tribunals, whose members are appointed by
the Band Chiefs and Councils, are being asked to adjudicate a dispute
pitting the interests of the bands against outside interests. 

• Effectively, the tribunal members must determine the interests of the very
people, the bands, to whom they owe their appointments.
Lack of Independence
– Administrative Control
• Administrative control concerns the manner in which the affairs of the court / tribunal are
administered/

• There should be minimal government control in, for example, allocation of resources or
assignment of cases.

• Tribunals generally have control over cases, but resource issues are closer to government.

Québec Inc. v. Quebec (Régie des permis d’alcool)

• The respondent in Régie challenged the board’s administrative control. It argued that there
were so many points of contact between the liquor board and the minister responsible for the
board’s enabling legislation that the board’s institutional independence was threatened.
Court held - administrative control was also sufficient – it was not unusual for a minister to
have many points of contact with a tribunal under its responsibility. Court noted - no evidence
had been provided to show that the minister could affect the decision-making process.
 Lack of Independence
– Administrative Control
•Alex Couture – Competition Tribunal
• Lower court concerned because Governor in Council sets rate
and privy council received performance appraisal
• Appeal court satisfied that policy creates enough distance – there
was an advisory group for salary

•Katz
• Lawyers appointed to stock exchange disciplinary committee –
they had no fixed terms and no guarantee of pay
• SCC distinguished self‐regulatory function from the adjudicative
function in Matsqui, and focused on how tribunal actually
functioned in practice
• No evidence of arbitrary removal ‐‐ people sit until they resign
• No evidence of payment issues, no evidence of interference by
executive – chairs selected by a manager, on rotation – Informed
 Raising an Allegation of Bias

• Allegations should be raised as early as possible

• The best way to raise the issue will depend on the
circumstances of each case
• The court will consider a party to have waived the right to
argue an allegation of bias if they do not raise it during
the hearing
• The right is NOT waived if a party raises an allegation but
the member continues to hear the case
 Tribunal Response to an Allegation of Bias
• If an adjudicator is concerned there may be an appearance of bias, he or
she may:
 Ask the tribunal chair to assign a different adjudicator
 Informally disclose the facts to the parties and volunteer to stand
aside
 Decide that it is in the public’s interest to continue to hear the case, if
he or she believes that there is no actual bias or reasonable
apprehension of bias (i.e./ hearing has started and there would be
substantial cost or delay to step down)

• The responsibility to decide lies with the adjudicator against whom

allegation is made, and should resist natural tendency to step aside
“...it is my duty to determine whether or not I ought to recuse myself, not by
simply agreeing to refrain from hearing the matter because an objection
is raised, but by reference to established legal principles.”
De Cotiis v. De Cotiis, 2004 BCSC 117 (CanLII), 2004 BCSC 117
 Tribunal Response to an Allegation of Bias
Interesting Dilemma

• If an adjudicator is giving reasons of why s/he feels there is

no bias, this may be considered giving evidence.

• Adjudicator not generally permitted to be a witness in the

matter in which they preside – could the parties then cross-
examine the adjudicator on the evidence?
Remedy for Breach of Procedural Fairness
• The requirements of the duty of fairness are
independent of the merits of the substantive matter in
issue and that breach of the duty voids a decision.

• The Supreme Court of Canada expressed the point

categorically in Cardinal:

[T]he denial of a right to a fair hearing must always render a

decision invalid, whether or not it may appear to a reviewing court
that the hearing would likely have resulted in a different decision.
Remedy for Breach of Procedural Fairness

• In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore

Petroleum Board, [1994] 1 SCR 202 the SCC endorsed the view:

“[a] distinction might perhaps be made according to the nature of the decision. In
the case of a tribunal which must decide according to law, it may be justifiable to
disregard a breach of natural justice where the demerits of the claim are such that
it would in any case be hopeless.”

• Court refused to quash a decision in the face of a breach of

procedural fairness in Mobil Oil, but did so on the basis that it would
be “impractical” and “nonsensical” to do so, because, as a result of a
cross-appeal, the tribunal would have no alternative but to reject the
application in question.

• The Court described these circumstances as “exceptional,” and

reiterated that it “would not wish to apply it [the exception] broadly.”
Remedy for Breach of Procedural Fairness

• Cardinal remains good law and the Mobil Oil exception should be
rare.

• Judicial review is concerned with deciding what the duty of fairness

requires in the circumstances of a particular decision

• Need to distinguish judicial review on substantive grounds. No similar

approach is taken with regard to the duty of fairness.

• Historically, compliance with the duty of fairness has been regarded

as a jurisdictional question and, as such, a question that must be
answered correctly. If it is not, then jurisdiction will be lost, the
relevant decision will be quashed, and the decision-maker will be
required to make a fresh decision in accordance with the correct
procedure.
Standard of Review –
Procedural Fairness
• Although a successful application for judicial review on
fairness grounds will result in an order quashing a decision
and requiring it to be made anew, nothing necessarily
prevents the decision-maker from reaching the same
substantive decision.

• However in Baker a new hearing was ordered which

resulted in a different outcome.
• Mavis Baker was subsequently granted the humanitarian and
compassionate exception she sought and was allowed to stay in
Canada.
• Whether or not a different result obtains on a rehearing, the
consequences of a breach of the duty of fairness may be significant.
THE DUTY OF FAIRNESS: SUMMARY CHECKLIST

STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

Are there any limitations on the application of the duty of
fairness – when is a duty of fairness NOT owed

STEP 2 – DETERMINE THE CONTENT OF THE DUTY OF

FAIRNESS
What elements of fairness are required in the particular
case?

STEP 3 – WHAT IS THE REMEDY FOR A PROCEDURAL

BREACH?