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Administrative - Audi Alteram Partem

. Sexsmith v. Canada (Attorney General)

In Sexsmith v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal held that breach of the audi alteram partem principle constituted a violation of procedural fairness:
[24] The other Baker factor is the procedure that the firearms officers chose to follow. In these circumstances, they rightly considered it fair, important and necessary to interview Mr. Sexsmith so he could put his case for the authorization and answer their questions. It was equally fair, important and necessary to disclose the government officials’ facts and assessments to Mr. Sexsmith and interview him again so he could have a chance to respond to the case against him.

[25] By not doing this, the firearms officers offended the principle of audi alteram partem—decisions of importance cannot be made unless affected parties have had the opportunity to respond to material evidence offered against them.

[26] The Federal Court recognized this procedural unfairness but did not quash the firearms officers’ decisions. It held that Mr. Sexsmith had no useful responses to offer in response to the government officials’ facts and assessments.

[27] There is no factual basis for that holding. Mr. Sexsmith’s statements in his application for judicial review and in his memorandum of fact and law filed in the Federal Court show that he had many important and material responses to the facts and assessments the government officials offered. The firearms officers had to receive and consider his responses: they were of a sort that might have changed their minds.



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