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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)
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Administrative - Control of Process

. Yan v. 30 Forensic Engineering Inc.

In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court reviewed both the administrative/SPPA 'control of process' and evidence jurisdiction, here in an HRTO context:
[32] The HRTO has significant power to control its own process: see ss. 25.0.1 and 25.1.(1) of the Statutory Power Procedures Act, R.S.O. 1990, c. s.22 (“SPPA”). It can make rules to govern the practice and procedures before it so as to offer the parties before it, the best opportunity for a fair, just, and expeditious resolution of the merits of an Application: see s. 45.8 of the Code. That authority allows the HRTO to adopt practices and procedures that are an alternative to traditional adjudicative or adversarial procedures. The HRTO is also not bound by the strict rules of evidence; it has a broad discretion to admit relevant evidence, including hearsay, even if that evidence would not be admissible in a court: see s. 15(1) of the SPPA.
. Donatelli-Venneri v. Stern Landesman Clark LLP

In Donatelli-Venneri v. Stern Landesman Clark LLP (Div Court, 2023) the Divisional Court considered an assessment officer's control of process, which they exercised by twice excluding the appellant from the hearing room for "unruly and disruptive behaviour". This case, which was a second appeal, also involved the first appeal judge muting the audio of the appellant at an electronic hearing:
[21] In his reasons on the merits, Myers J. details the circumstances that led to his muting Ms. Donatelli-Venneri. In essence, Myers J. gave Ms. Donatelli-Venneri repeated directions to focus on the allegations of error by the Assessment Officer. Instead of heeding these directions, Ms. Donatelli-Venneri continued to argue an issue that was clearly irrelevant to the appeal. Myers J. gave Ms. Donatelli-Venneri an explanation as to why he considered the issue irrelevant, and she became more aggressive and heated in her submissions on the irrelevant point. As a result, Myers J. instructed the Registrar to mute Ms. Donatelli-Venneri’s line and end her submissions. In doing so, he highlighted the court’s responsibility to control its own process.

[22] In Hodder v. Lindhorst, 2016 ONCA 42, the Ontario Court of Appeal affirmed that where a litigant is disruptive, a judge is entitled to have them removed from the courtroom. Since the appeal was not held in person, Myers J. could not have her removed from the courtroom. The equivalent tool in a teleconference hearing is to mute the litigant’s line.

[23] While it is obviously not conducive to the appearance of justice to silence litigants in this manner, Myers J. was correct when he stated that a judge has an obligation to control their own process. If litigants refuse to abide by instructions from a judge concerning their submissions or their behaviour, court hearings can be hijacked in a way that can cause real harm to the administration of justice. In this case, Myers J. had been very clear with Ms. Donatelli-Venneri about why she should cease arguing the point she was arguing. Instead of heeding this direction, she continued to press the point in an aggressive and heated manner. In view of this, Myers J. was entitled to take the steps he needed to in order to end her oral submissions. As Myers J. noted, he had extensive written material from the Appellants setting out their position on the appeal.

....

[28] The Appellants submitted that Myers J. erred in failing to allow their appeal on the basis that the Assessment Officer excluded Ms. Donatelli-Venneri from the courtroom. Given Ms. Donatelli-Venneri’s disruptive behaviour before the Assessment Officer, Myers J. made no error when he found that the Assessment Officer’s actions were justified on the basis that she had the obligation to control her own process.
. Sternberg v Ontario Racing Commission

In Sternberg v Ontario Racing Commission (Div Ct, 2008), the applicant lawyer sought to quash a decision that he be barred from appearing before the Commission until he apologized for alleged misconduct. The court application was grounded in bias as the Commission panel making the misconduct finding included two of the original members whom he is alleged to have offended, and because the reasons in the contempt decision were prepared before the hearing was conducted (and as well mistated the fact that he had not apologized).

The application was allowed for these reasons, and additionally because the 'misconduct' hearing was essentially a contempt hearing, which jurisdiction resides with the Divisional Court [SPPA s.13(1)(c)] and - at least with respect to professional discipline, the Law Society - not the Commission. As well, the applicant was denied the oppourtunity to make submissions as to penalty.

. Dai v. Presbyterian Church in Canada

In Dai v. Presbyterian Church in Canada (Ont Div Ct, 2013) the court held that a tribunal's authority to control it's own processes extended to the ability to declare an applicant a vexatious litigant and bar him from commencing future proceedings before it without the consent of the tribunal. The court did not address which specific SPPA provision grounded this authority, nor whether it was a general SPPA authority or one that required s.25.1 rule-making by the tribunal - which is unfortunate given the several potential statutory sources for such authority.

. Hutchinson v. Aviva General Insurance Company

In Hutchinson v. Aviva General Insurance Company (Div Court, 2023) the Divisional Court considered an appeal from a LAT ruling where the appellant sought (and was denied) conversion of the oral hearing to written format:
[25] It has long been an axiom of administrative law that specialized tribunals are best placed to select among available procedural options based on their balancing of the competing interests of expedition, cost-effectiveness, and full participation: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 27.

[26] The LAT retains the following powers by virtue of these provisions of the Statutory Powers Proceedings Act, R.S.O. 1990, c. S.22 (SPPA):
a. to determine its own procedures and practices, and for that purpose to make orders with respect to the procedures and practices that apply in any particular proceeding: s. 25.0.1;

b. to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes: s. 23(1); and

c. to make orders or give directions at an oral or electronic hearing as it considers necessary for the maintenance of order at the hearing: s. 9(2).
[27] In considering procedural fairness at the administrative tribunal level in Rogers Communications Partnership v. Ontario Energy Board, 2016 ONSC 7810 (Div. Ct.) at para. 18, this court endorsed the following guidance from Sound v. Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R. 170 at para. 42:
[…] whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other.
[28] The Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (LAT Rules) contain a number of sections which address procedural fairness, accommodation, motions, adjournments and the effective and efficient resolution of disputes. These include:
Rule 3.1 - the liberal interpretation and application of the LAT Rules, which may be waived, varied, or applied to facilitate a fair, open, and accessible process and to allow effective participation by all parties, whether represented or not; to ensure efficient, proportional, and timely resolution of the merits of the proceedings; and to ensure consistency with the governing legislation and regulations;

Rule 7 - accommodation of parties, representatives and witnesses for Ontario Human Rights Code-related needs;

Rule 15 - motions, including the contents of a motion; the timing of a motion; serving and filing a motion; and when the motion may be heard by the LAT; and

Rule 16 - adjournments, including when and how they may be made and when oral requests may be made.
Analysis

The Hearing

[29] I have scrutinized the transcript of proceedings, paying particular attention to passages at pages 28, 42, 49, 54, 58, 59 and 60 which the Appellant contends demonstrate bias on the part of the adjudicator.

[30] I do not agree that the conduct of the hearing shows any bias on the part of the adjudicator. As well, the Appellant has failed to establish that she has been denied natural justice or procedural fairness.

[31] On the contrary, the adjudicator was eminently fair to the Appellant during the hearing:
a. she agreed to entertain the short-served motion;

b. she invited the Appellant to tender medical evidence which had not formed part of the motion materials;

c. in an effort to accommodate the Appellant’s condition, she canvassed several options for how the matter might proceed as scheduled;

d. she afforded counsel the opportunity to consult with his client and with senior counsel from his firm;

e. she allowed counsel ample opportunity to give submissions; and

f. she permitted counsel to explain the dilemma he faced in not being able to obtain instructions to proceed.
. North Elgin Centre Inc. v. City of Richmond Hill

In North Elgin Centre Inc. v. City of Richmond Hill (Div Court, 2023) the Divisional Court considers a tribunal's [the Ontario Land Tribunal] jurisdiction to control it's own process:
[16] Similarly, the record does not support NEC’s allegation of a reasonable apprehension of bias. After its recusal motion was rejected, NEC refused to participate in the hearing and instead brought repetitive motions, conducted cross-examinations in a dilatory manner, failed to give notice that it would not lead evidence at the Phase 2 hearing, and ignored the procedural directives of the Tribunal. A tribunal is entitled to control its own process and to take steps to require a litigant to behave in a civil manner: Di Blasi v. Regional Municipality of York, 2022 ONSC 7104 (Div. Ct.), at para. 38. The Tribunal’s efforts to control the proceeding and rein in NEC’s conduct does not mean that it was biased.
. Di Blasi v. York (Regional Municipality) [for case cites see the link]

In Di Blasi v. York (Regional Municipality) (Div Court, 2022) the Divisional Court held that there was no tribunal member bias where the tribunal excluded a party, who was represented by counsel, for portions of an administrative hearing due to their disruptive behaviour:
[37] The appellant argues that the Tribunal’s treatment of him during – including: excluding him from a portion of the hearing, giving him peremptory directions, cutting him off when he was speaking, and permitting the allegedly unfair cross examination on his character and truthfulness, created an air of oppression giving rise to a reasonable apprehension of bias.[10] 

[38] I do not accept this argument. The Tribunal is entitled to control its own process, and when a litigant before it behaves badly, it is entitled to take steps – including stern steps – to require the litigant to behave in a civil manner, respectful of the Tribunal’s control over its own process. The appellant was treated quickly by the Tribunal in response to his own rudeness and unruliness. The Tribunal’s response was measured and reasonable and enabled the hearing to continue on a reasonable schedule to its conclusion.
 

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Last modified: 26-11-23
By: admin