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Administrative - Audi Alteram Partem (Hear Both Sides). J.F.R. v. K.L.L.
In J.F.R. v. K.L.L. (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a s.16.1 ['Parenting order'] Divorce Court proceeding (here regarding "the parties’ adult son’s residence schedule with each of his parents"), but which was made without a Substitute Decision Act "capacity for personal care and property" determination for the Down's Syndrome adult child.
Here the court considers 'audi alterum partem' as an aspect of procedural fairness where a disabled direct party was not heard:(2) Audi Alteram Partem and the Presumption of Capacity
[18] The appellant challenges the temporary order with respect to M.’s residence on several other grounds. It is not necessary to address all of them. For the purposes of disposing of this appeal, it suffices to consider whether, as the appellant submits, there was a breach of the principles of natural justice because M. did not have an opportunity to be heard on a decision that seriously affected his interests, namely the specifics of where, when, and with whom he would reside.
[19] The primary issue that the appellant raises on appeal involves M.’s fundamental rights, including his right to be heard on any matter that materially affects his interests.[6] The motion judge’s order that M.’s views and preferences be ascertained through a social worker or psychologist before a final order is made recognized the need to hear from M. to inform the parenting order. However, it could not stand as a substitute for M.’s participation, as he is presumed to be a capable adult in the proceedings, and therefore his lack of participation cannot be remedied by simply ascertaining his views and preferences prior to making a final order under s. 16.1 of the Act.
[20] Before any order – whether temporary, interim, or final – may be made for an adult under s. 16.1 of the Act with respect to his residence, in addition to the other criteria under s. 2(1)(b), the court must determine whether the adult is “unable to withdraw from their [parental] charge or to obtain the necessaries of life” in the specific context of the order sought.
[21] For the reasons that follow, I conclude that M. had the right to be heard, including the right to speak to his ability to withdraw from parental control in the specific sphere of his residential schedule, and he was denied the opportunity to exercise that right. I would therefore allow the appeal and set aside the motion judge’s order.
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V. Analysis
(1) Contextual Principles
[22] Before turning to the interpretation of the relevant sections of the Act, I review some principles of natural justice that apply to adults generally: specifically, the right to be heard and the presumption of capacity for an adult person. In the next section, I go on to interpret ss. 2(1)(b) and 16.1 of the Act so as to minimally impair these rights.
[23] The audi alteram partem principle, which is a rule of natural justice and one of the tenets of our legal system, requires that courts provide an opportunity to persons who are affected by a court’s decision to be heard: A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536, at para. 27; see also Fontaine v. Canada (Attorney General), 2018 ONCA 1023, at para. 21. The failure to do so results in a breach of natural justice.
[24] The principle of audi alteram partem takes on central importance in cases, like the present one, that involve persons living with a disability who may, as a result of the disability, be dependent on others to ensure their interests are protected and their views are made known to the court. Dependence on others or incapacity in some or all areas of decision making does not eliminate the right to be heard. . Drewlo Holdings Inc. v. Municipal Property Assessment Corporation
In Drewlo Holdings Inc. v. Municipal Property Assessment Corporation (Div Court, 2023) the Divisional Court considered an 'unargued grounds' [audi alteram partem] procedural fairness argument:A point of procedural fairness
[37] Drewlo also complains that it was denied procedural fairness because the Board focused in its decision on whether new lands were created, and made reference to the Condominium Act, “which neither party had raised, and regarding which the parties were not invited to make further submissions.” Drewlo asserts that this was a violation of the audi alteram partem rule.
[38] In fact, however, the Condominium Act, and its use as authority to create new individually taxable parcels of land, had been specifically referenced in paras. 19 and 20 (and their attendant footnotes) of MPAC’s submissions to the Board. In its own factum to the Board, at para. 4, Drewlo acknowledged its awareness that the condo plan would affect the “legal status” of an MPAC assessment. Drewlo was on notice that the effect of the Condominium Act was a live issue before the Board and had the opportunity to address it.
[39] The audi alteram partem rule must take into account a particular tribunal’s “expertise and the body of jurisprudence that has developed around its area of expertise”: Knoll North America Corp. v. Adams, 2010 ONSC 3005 (Div. Ct.), 104 O.R. (3d) 297, at paras. 28-31; Girouard v. Canada (Attorney General), 2020 FCA 129, 449 D.L.R. (4th) 679, at paras. 97-98; IWA v. Consolidated Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, 68 D.L.R. (4th) 524, at para. 93. With respect to the use of s. 33(1) by MPAC as an accepted tool when properties are converted to condominium units, see, for example, National Car Rental (Canada) Inc. v. Municipal Property Assessment Corporation, Region 15, 2022 CanLII 53352 (ON ARB), at paras. 109-110. The operation of the Condominium Act in the context of the Act must have been in the contemplation of these parties in the circumstances of this case.
[40] This ground of appeal, along with its procedural fairness component, must fail. . Faruk v. The Landlord and Tenant Board
In Faruk v. The Landlord and Tenant Board (Div Court, 2023) the Divisional Court considered a judicial review (not a RTA s.210 appeal, which would be more usual), grounded in administrative fairness and abuse of process, of interrupted RTA proceedings where the LTB member had resigned before the hearing was completed and the LTB ordered a de novo hearing. The substantive issues were COVID-era arrears of rent and s.83 relief form eviction.
In this quote the court considers an audi alteram partem argument by the LTB:[59] The Landlord and Tenant Board goes further. In determining to proceed de novo the Board submits it was respecting the ancient principle audi alterem partem generally understood to refer to the right to be heard:The Latin phrase upon which Mr. McIntosh relies – “audi alteram partem”, meaning listen to the other side...[56]
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...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.[57]
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“let the other side be heard as well”[58] [60] In this case, in its submissions, the Landlord and Tenant Board extended the meaning of the phrase by reference to Administrative Law in Canada (7th ed.) to include the provision that the right includes starting again if a single hearing officer is unable to complete the hearing:Where a quorum is prescribed by statute or regulation, a hearing by fewer members is invalid and a decision is void. If one member is lost, leaving no quorum, the remaining members may not continue the hearing, not even if the absent member is replaced because the replacement has not heard the evidence presented before joining the panel, unless the parties consent to the change in membership of the panel part way through the hearing. Otherwise, a new panel must commence the hearing anew. Similarly, if the Tribunal is constituted by a single member is unable to complete the proceeding, the replacement must start the proceeding anew. Lack of a prescribed quorum may not be waived by the parties because the purpose of a quorum is to serve the public interest through the collective wisdom of a minimum number of members. [Footnotes omitted, emphasis added].[59] [61] There is nothing in this quotation that demonstrates the meaning attributed to the phrase audi alterem partem includes a requirement that a hearing be conducted by a single member without change. Obviously, as a general matter one would expect this to be the case, but its not what audi alterem partem is directed to. These rules are in place to advance fairness not set it to the side. In exceptional circumstances the court can and will intervene. Contrary to the submission made on behalf of the Landlord and Tenant Board, this is such an exceptional circumstance. The substantive issue was resolved by the member who then left. All that remained was to determine which of the tenants, who were members of the “Union”, had made payment proposals. This was a separate independent fact that was extricable from the determinations that had been made. It bears noting that the evidence, said by the tenants to demonstrate which of them had made a payment proposal, was delivered on July 9, 2021, or four months before the tenants learned of the departure of the member of the Board. I have already noted and do not accept the submission of counsel for the landlord that the question of whether the application of subsection 83(3)(d) remained open to be reconsidered on each of the individual hearings and could be found not to apply in this situation. To accept that this was the case would render meaningless the efforts of the Landlord and Tenant Board to consolidate, treat issues as common and expedite the hearing. Any determination made would be open to reconsideration. Nothing would have been accomplished despite the efforts of the Landlord and Tenant Board to organize the proceedings. . 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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