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Administrative - Disclosure

. Dr. Rajiv Maini v. HPARB et al.

In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered disclosure as an aspect of administrative procedural fairness:
[21] The Applicant maintains that he is owed a high level of disclosure requirements even in the investigative phase before the ICRC, as confirmed by this Court in Gopinath v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 3143 (Div. Ct.), at paragraph 14. In that case, however, the applicant’s counsel had requested specific disclosure on multiple occasions, but the CPSO did not provide it. There is no evidence on this record that the Applicant requested disclosure that would justify the higher level of disclosure referred to in Gopinath.


[27] As well, section 25(5) of the Code does not require Dr. Maini to have received full disclosure. The Code merely requires that he had “notice” of the complaint and an opportunity to respond (Botros, paras. 30-31). Had the Legislature intended a member to receive each document before the ICRC, it would have used express language to that effect. It did not.

[28] This case is distinguishable from the cases relied on by Dr. Maini. In Ajao v. College of Nurses of Ontario, 2011 ONSC 6061 (Div. Ct.) and Gopinath, the court found procedural unfairness in the regulators’ failure to provide the members an opportunity to respond to information they had no notice of. A similar conclusion was reached in another case upon which Dr. Maini relies. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, the regulator breached the procedural requirements set out in the Code by disposing of the matter without having given the member notice of the complaint or an opportunity to make written submissions to the ICRC.
. Dhillon v. The Corporation of the City of Brampton

In Dhillon v. The Corporation of the City of Brampton (Div Ct, 2021) the Divisional Court discusses disclosure obligations in an administrative context:
[56] I find that there was sufficient disclosure in the circumstances. There is nothing in the Municipal Act or the Complaint Protocol that suggests the level of disclosure sought by Councillor Dhillon. The Court in Di Biase v. City of Vaughan, 2016 ONSC 5620 determined that integrity commissioners have relatively low obligations of disclosure, stating at para. 146:
An administrative body that investigates and makes recommendations must disclose the substance of the allegations. The Supreme Court of Canada in two cases affirmed the following statement by Lord Denning in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), p. 19:
The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only.

Syndicat des Employés de Production de Québec et l'Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, at para. 27.

Irvine v. Canada (Restrictive Trade Practices Commission), 1987 CanLII 81 (SCC), [1987] 1 S.C.R. 181, at para. 71, citing Jenkins v. McKeithen, 395 U.S. 411 (1969), Harlan J. (dissenting), pp. 442-443.
. Brown v. Canada (Citizenship and Immigration)

In Brown v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal holds that a disclosure duty applies under the doctrine of administrative procedural fairness when the issue is quasi-criminal (here, immigration detention):
[140] The interveners assert that detainees do not receive sufficient and timely disclosure to allow them to know the case they have to meet and to respond. They argue that the Immigration Division Rules fall short of what fairness requires because they, and the relevant policy guidelines, require disclosure of only the documents on which the Minister intends to rely. They also point to evidence that says that the disclosure that is made is often late and leaves counsel with no ability to adequately represent the detainee’s interests.

[141] The existence of a legislated disclosure requirement does not dispose of the question whether procedural fairness has been met. The Court must still examine whether the duty of fairness has been fulfilled. The Federal Court observed that Mr. Brown raised "“legitimate concerns about the timeliness and quality of pre-hearing disclosure”" (Federal Court reasons at para. 127). I agree that those concerns are substantiated by the evidence. Mr. Singh, a hearings officer with the CBSA, admits that, although disclosure is to be provided in advance, "“there are times where it is not provided in advance”" (Federal Court reasons at para. 110).

[142] The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee. This includes information pertaining to the grounds for the detention, information pertaining to the section 248 criteria, the existence of an immigration nexus, and the factors that bear upon the judge’s assessment whether continued detention is warranted and consistent with Charter and administrative law principles. While the disclosure obligation necessarily encompasses information that is helpful to the detainee, it is not unlimited. It is always tempered by the requirement that the information be relevant to the circumstances of the particular detainee.


[149] The lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under section 248. In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure (see section 18.2 of the Federal Courts Act). Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents which results in a breach of procedural fairness.


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