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Administrative - When Hearing Required. Mirza et al. v. Law Society of Ontario
In Mirza et al. v. Law Society of Ontario (Div Court, 2023) the Divisional Court cited a CA case for the point that the common law can require a hearing where the issue is central and important:[36] The conclusion that a hearing would be required is consistent with the general principles of procedural fairness stated in Khan v. University of Ottawa (1997), 1997 CanLII 941 (ON CA), 34 O.R. (3d) 535 (C.A.). The Court of Appeal found that a student had been denied procedural fairness with respect to her appeal from a failing grade on a law school exam. Although many academic appeals would not require an oral hearing, what distinguished this case was that the central issue related to the student’s honesty about whether she had completed an additional exam booklet. The court concluded that the examinations committee should not have judged her credibility adversely without affording her an in-person hearing. . Manitoba Métis Federation Inc. v. Canada (Energy Regulator)
In Manitoba Métis Federation Inc. v. Canada (Energy Regulator) (Fed CA, 2023) the Federal Court of Appeal considers an appeal by a Metis organization of a decision of the Commission of the Canadian Energy Regulator (the Commission) involving a hydro project advanced by Manitoba Hydro. In these quotes the court considers when a tribunal must hold a hearing:[206] It is true that certain proceedings before the Commission must be public, including hearings if related to the issuance, suspension, or revocation of a certificate (CER Act, s. 52(1)). A public hearing may also be held for any other matters if appropriate (CER Act, s. 52(3)).
[207] In this case, the primary issue in the MMF’s Notice of Application was whether the MAP was a commitment under Condition 3 and whether Manitoba Hydro had failed to implement it; in other words, whether Manitoba Hydro was non-compliant with respect to Condition 3. The Commission found no such commitment and, as a result, found that Manitoba Hydro was compliant. The question of revocation or suspension therefore did not arise.
[208] A public hearing is not required under subsection 52(1) by the simple fact that a party requested the revocation or suspension of a certificate. Revocation or suspension must actually become a live issue before the Commission.
[209] Furthermore, the Commission is empowered to conduct its proceedings in a flexible manner and adapt them to the circumstances at hand, subject to the common law requirements of procedural fairness (Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 at 685, 69 D.L.R. (4th) 489). Therefore, the factors used to determine what procedural rights are contained in the duty of fairness, set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paragraphs 22–28, apply to the Commission.
[210] Applications and proceedings before the Commission “must be dealt with as expeditiously as the circumstances and procedural fairness and natural justice permit” (CER Act, s. 31(3)). To this end, the Commission may make rules governing its procedures and practices (CER Act, s. 35(d); see also the National Energy Board Rules of Practice and Procedure, 1995, S.O.R. 95/208, which remain in effect). That is what the Commission did here. It was not required to hold a public hearing in these circumstances.
[211] In the present appeal, the MMF did not argue that it had not been heard or that it did not have the opportunity to provide fulsome submissions to the Commission regarding its concerns. There is no question here that the MMF was allowed to provide fulsome written submissions to the Commission over the course of several months.
[212] I am satisfied there was no breach of procedural fairness and find no error of law.
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