the timing of notice will always depend on the circumstances

- Conclusions: Reasonable Notice: Timing and Contents:

1. notice is required for any decision that affects the rights of the individual;

2. must be reasonable, both in content and in timing;

3. “adequate” depends on the circumstances

4. has to be sufficient for the client to be able to understand the case and to prepare;

Discovery

Do notice entitlements in the administrative process involve a claim to pre-hearing “discovery” of all relevant info in possession of the “other side”/”prosecution”?

Do tribunals have an inherent/implied power to order discovery of complete disclosure where they deem it necessary in the interests of fairness?

Canadian Pacific Airlines Ltd. v Canadian Air Line Pilots Association [1993]

Involved an order for production of docs and other info made by Canada Labour Relations Board as the investigative, pre-hearing stage of an application by Canadian Air Line Pilots Association for a

“single employer” declaration. When Canadian Pacific Airlines Ltd. didn’t produce info voluntarily, board relied on Canada Labour Code provisions to “compel witnesses to produce such docs and things as the board deems requisite to the full investigation…

Majority held that board had no inherent or incidental powers, only those conferred by statute.

Provisions relied on did not authorize compulsory discovery orders outside the context of a formal hearing. No room for pre-hearing discovery. Statute limited to orders for production of docs in context of witnesses being summoned to give evidence on oath.

CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board) –The target was to obtain pre-hearing disclosure of all relevant documents in the Board’s possession. The Federal Court sustained the Board’s refusal on the ruling by stating that there were no criminal proceedings, it would impact the efficiency of the business, and it would also lengthen the proceedings. Court refused to apply Stinchcombe.

May v Ferndale Institution SCC upheld the contextual approach to the scope of disclosure in admin proceedings. Court refused to apply Stinchcombe because that was a criminal context (i.e. a trial and someone’s innocence is at stake) – such principles do not apply in the administrative context. But procedural fairness generally requires that the decisionmaker disclose the info they relied on and in this case, the relevant statute required Corrections Canada to give offenders “all the info to be considered in the taking of the decision or a summary of that info” – so disclosure of the specific scoring matrix (of risks) should have been disclosed.

Delay

Kodellas v. Saskatchewan Human Rights Commission (1989)

It is my opinion that for the purposes of determining an "unreasonable delay" in the context of s.7 of the Charter in relation to a remedial proceeding under the Code, the factors to consider and weigh are:

(1) Whether the delay complained of is prima facie unreasonable, having regard to the time requirements inherent in such a remedial proceeding;

(2) the reason or responsibility for the delay, having regard to the conduct of the complainants (at whose instance the proceedings were initiated) the conduct of the Commission (who by the provisions of the Code has carriage of the proceedings), including the inadequacy of or limitation to its institutional resources, and the conduct of the alleged discriminator, including whether he failed to object or waive any time period; and

(3) the prejudice or impairment caused to the alleged discriminator by the delay.

In this case the delay was unreasonable and it appeared ascribable to the Commission. On (3) Kodellas alleged the delay meant he was unable to find potential witnesses and also fading recollection of potential witnesses. Judge agreed with this.

2. Actual Hearing

Oral Hearings (face to face encounter with decisionmaker or delegate)

As part of the audi alteram partem rule, traditionally the right to an oral hearing was usually required as an element of natural justice

- As the duty of fairness emerged, the presumption in favour of an oral hearing (as opposed to written submissions) disappeared, and deference to procedural choices became the norm

- Baker: as there is no more automatic right to an oral hearing, the question is whether the applicant received a "full and fair consideration" of their claim given the circumstances

- Nicholson: written submissions sufficed (no oral hearing), as while a dismissed police officer should have been told why he was dismissed and should have been given the opportunity to respond, the Board had discretion as to whether it should be an oral or written hearing

- Baker: written submissions sufficed (no oral hearing), as the lack of an oral hearing for a woman applying for an exemption to immigration requirements was not found to violate procedural fairness - Generally, oral hearings will be required (otherwise written submissions will suffice) if:

a) Applicant is entitled to natural justice b) Baker: credibility is an issue

- Beetz J. in Singh: condemned lack of a "full oral hearing" in a situation where "life and liberty may depend on findings of fact and credibility"

- Wilson J. in Singh: while an oral hearing may not be required in every case where s.7 Charter rights were at stake, "where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing" (reaffirmed in Suresh)

c) Singh: life and death is at stake (ie: s.7 principle of fundamental justice argument…see Charter section)

- According to audi alteram partem, an applicant must know the case he has to meet, which includes having access to the info before decision-makers and having a summary of the case…case law expands on this content:

a) Singh: Minister submitted additional info to the appeal board which Singh didn't know about

b) Chiarelli: with national security cases, applicant must have a summary of the case against him, but need not have every detail

c) Suresh: Where an applicant establishes a prima facie case that he has a risk of facing torture, he must have notice of the full case against him and be given an opportunity to respond, which includes an opportunity to view the Minister's info before making submissions

Masters v. Ontario (1994) an oral hearing was not deemed necessary when an investigation team ordered a high-level bureaucrat reassigned after an investigative team found he had sexually assaulted seven women. The court ruled that the duty of fairness was met even without the hearing because the party had an awareness of material allegations against him and adequate opportunity to be heard.

Khan v. University of Ottawa (1997) Facts:

• Khan wrote an evidence exam. She thought she had 2 hours and filled 3 booklets which she labeled

“1 of 3, 2 of 3, 3 of 3”. She realized toward end that she had another half hour and took a 4th booklet which she labeled “insert”. She didn’t make it clear on the first three booklets that there is another booklet. She failed the exam and realized that the last booklet was not read – it had been lost.

• She appealed to the Examinations Committee who took her submissions (did not allow an oral hearing) and decided not to let her re-write on basis that (1) no exam had been lost before, (2) invigilators take great care, and (3) very little was written in the third of three marked booklets.

They didn’t believe her that there was a 4^th booklet. The Chair also admitted that, had they believed Khan that there actually was a 4^th booklet and it had gone missing, she would have been entitled to re-write the exam.

• She appealed to University Senate and was again not given opportunity to plead her case. They also rejected her appeal.

• Because of failing this exam, she failed the year.

Decision: Laskin JA

• Threshold – “The effect of a failed year may be very serious for a university student.”

• Khan’s credibility was the central issue before the committee: The only direct evidence that she did write a fourth booklet was her word. If the Committee believed her explanation, she was entitled to relief. If not, her appeal was properly dismissed. The 3 factors on which the Committee relied to justify their rejection were no more than circumstantial evidence that caused the Committee members to disbelieve Khan.

• Thus, procedural fairness required (1) an oral hearing, (2) a reasonable inquiry into the exam procedures, their actual operation in this case, and their general propriety, (3) an opportunity to refute the factors the Committee relied on in its decision.

• “In many academic appeals, procedural fairness will not demand an oral hearing. An opportunity to make written submission may suffice. For example, I doubt that students appealing their grades because they believe they should have received a higher mark would

ordinarily be entitled to an oral hearing. What distinguishes this case is that the determining issue before the Examinations Committee was Ms. Khan’s credibility.”

• “Khan need not show actual prejudice to prove that she has been denied procedural fairness. She need only show that the Committee’s breach of its duty of fairness may reasonably have prejudiced her. (Kane)” The Committee’s denial of an oral hearing “fatally flawed the proceedings.”

Dissent: Finalyson JA

• The committee was to determine whether there was an “error or injustice”. The existence of the fourth booklet would not have been conclusive given that the professor said that “more of the same wouldn’t have been beneficial.”

• We should not reverse the burden of proof: “ This is an attempt to place the burden on the two Committees to demonstrate affirmatively that a foruth booklet did not exist, and failing that responsibility, accept [Khan’s] bald assertion.”

• Khan was given the opportunity to provide a full and detailed written account of why she deserved relief. She never suggested that it was important to appear in person or that the information she submitted was not complete.

• The proceedings were not adversarial in nature.

• The legal rights involved and the consequences to Khan do not merit the standard of procedural fairness she claims. Singh can therefore be distinguished because it was a s. 7 case. The rights to

“life, liberty, and security of the person” were of great enough importance that an oral hearing was warranted.

Courts have traditionally given administrative tribunals the discretion to determine their own procedures, including the means by which submission are entertained. An oral hearing in these circumstances would impose an unreasonable procedural burden on the university.

Open Hearings

Whether to hold oral hearings publicly was traditionally treated as within the discretion of tribunal;

recent challenges by media have led to greater openness. The issue is whether a hearing should be open to the public or not. Competing interests are freedom of expression/freedom of the press vs. the security and privacy interests of the subject of the hearing. Also, protecting the victim and ensuring witnesses come forward are other rationales for having in camera proceedings.

There’s also the concern of commercial competitiveness among media institutions.

Right to Counsel

There is no common law absolute right to counsel, and the right’s existence is fact-dependent.

However, in many cases, the right to counsel is assumed and in many cases a statute provides for it.

• The more complex the inquiry and the more severe the repercussions on individuals involved the more likely the person has a right to counsel. Re: Parrish, [1993]; Re: Men’s Clothing Manufacturer’s Association of Ontario and Toronto Joint Board, Amalgamated Clothing and Textile Worker’s Union (1979); Howard v. Stony Mountain Institution (1985)

• On the matter of entitlement to counsel in prison, several factors are considered including the seriousness of the charge and the potential penalty, points of law likely to arise, capacity of prisoner to make his or her case, procedural difficulties, and the need for speed and fairness between prisoners. (R. v. Secretary of State for the Home Department, ex. p. Tarrant, [1984]).

• The principles of fundamental justice do not entitle someone to the right to counsel in cases of routine information gathering. In Dehghani v, Canada (Minister of Employment and Immigration), [1993] a refugee claimant alleged his s. 7 and s. 10(b) Charter rights were violated by the denial of access to counsel during an examination at a port of entry. Notes from the examination were used in a later stage of the refugee process. The appeal was denied.

• In New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.], [1999] the court found a parent had a right to counsel in a custody hearing because the lack of counsel created “an unacceptable risk of error in determining the child’s best interests and thereby threatening to violate both the [mother]’s and her children’s s. 7 right to security of the person.”

The right is not absolute, but depends on the parent’s abilities and the complexity of the hearing.

Re Men’s Clothing Manufacturer’s Association (1979) Facts:

• Disputes in the men’s clothing industry in Toronto had been resolved in arbitration without lawyers for decades.

• The union asked to have a lawyer present.

Decision: (Arbitration) Arthurs

• A labour arbitrator must accord to the parties before him all procedural rights which they have agreed and must observe natural justice in the absence of agreement.

• Although the common law finds legal representation desirable and discretion should favour it, it is not regarded as indispensable and there may be some circumstances where the participation of counsel is inimical to the functioning of the tribunal. Indeed, the common law did not guarantee representation in arbitrations or proceedings before administrative tribunals.

• The SPPA specifically excludes labour arbitrations from the application of the part of the statute dealing with rights to counsel

• The special context of labour arbitration and particularly of men’s clothing arbitration militates against a right to counsel:

1) There is an impartial chairman who holds office for the duration of the collective agreement.

2) Arbitration arose in this industry arose by agreement of the parties.

3) Cases are presented informally.

4) No witnesses are called.

5) Agreement on the facts is not uncommon and agreement on the disposition also occurs.

• The scope of disputes subject to arbitration and bases for deciding disputes is confined to areas where an informal process can be carried on.

• There are also many informal understandings which are not incorporated in collective agreements that are fostered by this system.

• “It is important to understand, therefore, that what the parties meant to convey by their mutual commitment to “arbitration” in the collective agreement was their devotion to a process which differed radically not only from that of the Courts but from that of other, less venerable, labour arbitration systems.”  default of not permitting counsel

• One cannot imagine that the introduction of lawyers could be accomplished without paying a substantial price in terms of efficiency – and industrial relations effectiveness – of arbitration:

1) Hearings will be delayed by availability of counsel.

2) Rules of evidence will lengthen hearings.

3) Technical contractual claims will divert from the true industrial relations issues at play 4) Costs of arbitration will rise enough to deter its use for minor matters

• Altering the process so fundamentally should be done openly and deliberately through collective bargaining.

Decision: (Review) Southey J

• The only way a corporation can be represented is through an agent. By ruling that the parties to arbitration could not be represented by counsel, they were being restricted in their choice of agents. This violates a common law right without a clear agreement or statutory restriction.

• It is common in other industries to be represented by counsel, thus in those circumstances it should be taken as an implied term in the collective agreement, even for natural persons.

• However, here there is a practice that would shift the balance against finding such an implied term. Thus, a natural person may not necessarily be entitled to counsel for the reasons given in the arbitration. Nonetheless, they would be entitled to counsel where another was so represented or where natural justice so demanded.

Note:

• Even in deciding how he did, the arbitrator gave leave for a very limited participation by counsel on a specific point of law (that challenged his legal authority). Thus, the judge’s ruling really only extended the participation of counsel because he accepted that many issues in the arbitration would be sufficiently complex as to warrant lawyers’ involvement.

Adjudication is backward-looking and correcting a wrong. Administrative perspectives are forward-looking – parties have to agree to terms which they will obey going forward

Howard v. Stony Mountain Institution (1985)

Question is whether s7 of Charter guaranteed H the right to counsel.

H was in prison. Charges under regulations against him – indecent or disrespectful language, threatening to assault another person, disobeying orders of a penitentiary officer…

S7 has not created an absolute right to counsel in all proceedings. In present case – all of H’s 267 days of earned remission – this alone suggests his need of counsel.

New Brunswick v. G. (J. (1999 SCC): the court found a parent had a right to counsel in a custody hearing because the lack of counsel created “an unacceptable risk of error in determining the child’s best interests and thereby threatening to violate both the [mother]’s and her children’s s. 7 right to security of the person.” The right is not absolute, but depends on the parent’s abilities and the complexity of the hearing.

where a decision impairs a s.7 interest, if government restriction of the "security of the person" right has a serious and profound effect on a person's psychological integrity, the principles of fundamental justice may require the Crown to provide legal aid (ie: here, circumstances were a gov't order suspending parents' custody of their children)

Facts:

• A mother was resisting an application by the Child Welfare authorities for renewal of an order placing her three children in the custody of the state.

• She requested the aid of counsel and was refused according to a Legal Aid policy that prohibited giving legal aid certificates in custody-order renewal proceedings.

• She invoked s. 7.

Issues:

Does section 7 of the Charter require that the mother be provided with counsel?

Holding: Yes Decision: Lamer CJ

The right to a fair hearing required that G be represented by counsel because of several factors:

(1) The seriousness of the interests at stake

• “Few state actions can have a more profound effect on the lives of both parent and child [than separation]. Not only is the parent’s right to security of the person at stake, the child’s is as well.

Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.”

• The seriousness varies according to the length of the proposed separation. This is an extension by six-months which is a significant period of time and may make the difference as to whether

custody will ever be regained.

(2) the complexity of the proceedings

• “Although perhaps more administrative in nature than criminal proceedings, child custody proceedings are effectively adversarial proceedings which occur in a court of law. The parties are responsible for planning and presenting their cases. While the rules of evidence are somewhat relaxed, difficult evidentiary issues are frequently raised. The parent must adduce evidence, cross-examine witnesses, make objections and present legal defences in the context of what is to many a foreign environment, and under significant emotional strain.”

• Here, all other parties were represented by counsel, the hearing was to last 3 days, and the Minister planned to present 15 affidavits, including two expert reports.

(3) the capacities of the appellant

(3) the capacities of the appellant

In document NCA Administrative Law Notes (Page 36-52)