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Administrative - Oral Hearings. Berger v. Legal Aid Ontario
In Berger v. Legal Aid Ontario (Div Court, 2021) the Divisional Court considers law on the need for an oral administrative hearing:Whether an oral hearing was required
[64] Where a decision turns on credibility, a decision maker should not make an adverse finding of credibility without affording the affected person an oral hearing: Khan v. University of Ottawa (1977), 1997 CanLII 941 (ON CA), 34 O.R. (3d) 535, [1977] O.J. No. 2650 (C.A.), at paras. 21-22.
[65] In Khan, a university student, threatened with the loss of a single academic year, was entitled to a high standard of justice, which required that she be given an opportunity to participate in an oral hearing where her credibility was "the central issue" to be determined.
[66] The applicant argues that if Ms. Khan, potentially required to repeat a year of school, was entitled to an oral hearing, it is impossible to justify that Mr. Berger, whose professional reputation hung in the balance, had his request to address matters of credibility at an oral hearing ignored. I disagree.
[67] In Khan, the student had received a failing grade on a final exam, based upon the contents of three examination booklets. She maintained that she had handed in a fourth booklet. The examination committee was not convinced that a fourth booklet existed and dismissed her appeal. Unlike in the present case, the central issue to be determined was whether she was telling the truth.
[68] The decision maker in this case was alive to the fact that decisions involving credibility assessments may require an oral hearing. However, she said that her decision was “not about credibility” but rather, it was based on facts admitted by the applicant.
[69] The applicant disputes the decision maker’s statement that the case was “not about credibility” and gives two examples of what he argues are adverse findings of credibility. The first relates to the applicant’s explanation that certain billing errors were the result of inattention. The second relates to the applicant’s explanation that other billing errors occurred because he was not aware of changes to LAO’s billing policies.
[70] With respect to the applicant’s explanation that certain billing errors were a result of inattention, the decision maker wrote that “it is not clear how inattentiveness or carelessness could lead to this kind of error.” She concluded that the applicant either “made up his [docket] entries when it was time to bill” or “deliberately falsified these accounts.” The applicant argues that in finding that it was not clear how inattentiveness could lead to this kind of error, the decision maker ignored the applicant’s explanation that on busy days, he might prepare a docket the following day.
[71] However, after stating that it was not clear how inattentiveness could lead to the billing errors, the decision maker went on to say that “[r]egardless of the rationale or intention, the result was that the applicant billed LAO for work he did not perform, and he received payment for this work from public funds, a behaviour which created a risk to the integrity of the LAO payment system.” Accordingly, it is clear that the removal decision was based upon the fact that the applicant repeatedly billed LAO for work that he did not perform, and not on a dismissal of his explanation for the billing errors. The reason for the errors was immaterial.
[72] With respect to the applicant’s explanation that certain billing errors occurred because he was not aware of changes to LAO’s billing policies, the decision maker wrote that the applicant’s “responses to issues that came to light during the LAO investigation that he was not familiar with the rules is incompatible with his statements about his background and his expertise as a LAO refugee lawyer.” The applicant argues that, in effect, the decision maker dismissed his explanations, without hearing from him.
[73] However, this was not a comment on the applicant’s credibility. The decision maker was saying nothing more than that a lawyer with his background and expertise should be familiar with LAO’s billing policies. In any event, the applicant's assertion that he was not familiar with those policies provides no excuse: rather, it is simply an admission that he failed to comply with his obligations as a panel lawyer.
[74] The applicant was entitled to be heard and was heard. The decision maker’s reasons reflect her consideration of his submissions, and deal with his arguments in detail. . Floria v. Toronto Police Service
In Floria v. Toronto Police Service (Div Ct, 2021) the Divisional Court considered when a hearing was oral and when it was electronic:[17] The appellant argues that the Hearing Officer had no authority to permit the video evidence, and the Commission erred in upholding her ruling to that effect. The appellant submits that s. 5.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) permits an electronic hearing only if the tribunal has adopted rules pursuant to s. 25.1 of the SPPA to deal with electronic hearings. At the time the disciplinary proceeding commenced, the rules of procedure applicable to disciplinary tribunals of the TPS did not provide for electronic hearings.
....
[24] In my view, the hearing before the Hearing Officer was an oral one, and s. 5.2 does not come into play. The parties and their counsel were present before the Hearing Office throughout the proceeding, as were most witnesses. None of them were participating electronically. Only the witness S.T. gave evidence electronically. As the Hearing Officer said in her ruling allowing both S.T. and G.T. to testify by video (Ruling at p. 20, AB at p. 281):Essentially, this is an oral hearing wherein two witnesses will provide their evidence through a video link. The remainder of the witnesses will provide viva voce evidence. This decision is of particular application and is specific to the facts of this case and the extreme circumstances of this case. ....
[29] In the present case, s. 5.2 deals with electronic hearings as an alternative to oral hearings. By its terms, s. 5.2 does not prevent a tribunal from hearing the evidence of a witness electronically in a hearing that is otherwise an oral one. As I have said above, the hearing in this matter was an oral one, with the parties, counsel and the tribunal member present in the same room. The fact that S.T. gave his evidence via Skype did not change the nature of the hearing.
[30] The appellant argues that the Hearing Officer had no authority to hear video evidence, unlike the Superior Court in Chandra v. Canadian Broadcasting Corporation, 2015 ONSC 5385. It is true that the Rules of Civil Procedure expressly allow video evidence in civil proceedings. However, Chandra is of no assistance in this case. I agree with the Commission that the Hearing Officer had the power, pursuant to s. 25.0.1 of the SPPA, to control her own procedures and practice, and that section allowed her to accept the evidence of a witness by video. . Riad v Health Professions Appeal and Review Board
In Riad v Health Professions Appeal and Review Board (Div Ct, 2012) the applicant initially laid a complaint against a psychiatrist, which the Board - considering the report of a complaint committee - ultimately dismissed. The issue on judicial review was not the merits of that dismissal but rather that of the tribunal's decision to hold a written hearing rather than an oral hearing. That application was dismissed when the court found that the applicant, despite a strong insistence on his right to an oral hearing, and an obvious desire to cross-examine the doctor, failed to advance any reasons for his insistence. His wanting to cross-examine the doctor (the classic reason for an oral hearing) was not sufficient reason in this case since such cross-examination before the Board was expressly prohibited by the Health Professions Procedural Code [s.33(2)(e)].
. Dahlia McPherson v. City of Toronto, RGI Eligibility Review Board
In Dahlia McPherson v. City of Toronto, RGI Eligibility Review Board (Div Ct, 2022) the Divisional Court considered, a matter of procedural fairness, when an administrative hearing need be oral:[33] Contrary to the Applicant's assertion, the Review Body was not obligated to provide an oral hearing of her matter. The Supreme Court of Canada has held that an oral hearing is not always necessary to ensure a fair proceeding and proper consideration of the issues involved in a case. In paragraph 33 of Baker, the Court wrote that "the flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations."
[34] In Khan v University of Ottawa, 1997 CanLII 941 (ON CA), 1997 CarswellOnt 2613 at para 21, the Court of Appeal for Ontario held that "an oral hearing may be required in certain circumstances and particularly where Charter rights are at stake and in those common situations where credibility of the parties and witnesses is a factor in the decision-making process." Those circumstances are not present in this case. An oral hearing was not required. . Errol Massiah v. Justices of the Peace Review Council
In Errol Massiah v. Justices of the Peace Review Council (Div Ct, 2020) the Divisional Court considered whether the applicant was entitled to an oral hearing, here on a costs issue:[39] The common law would not compel an oral hearing on the single issue of costs in these circumstances. In Baker, the Court rejected the proposition that an oral hearing was always required where a humanitarian and compassionate exemption to a deportation order is sought. After holding that Ms. Baker was entitled to more than a minimal degree of procedural fairness, L’Heureux-Dubé J. stated:[11] However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. [40] At stake for Ms. Baker was the opportunity to remain in Canada with her four children. Other similarly high-stakes decisions for which an oral hearing is not required include: a decision of the Minister of Justice to surrender a person for extradition;[12] a decision of the Minister of Citizenship and Immigration to deport a person to a country where he may face torture;[13] and the Parole Board’s decision to suspend a long-term supervision order.[14] As summarized by Guy Régimbald:[15]There are many forms of hearings, some may be oral with court-like procedures, while others may be written only. It all depends on the statutory prerequisites, the statutory mandate, the principles of fundamental justice, and the rules of procedural fairness. As long as the hearing allows parties to communicate their positions in a fair manner and allows the parties to collect the necessary information, the hearing will be adequate. . Perrin v. Canadian Union of Public Employees
In Perrin v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal considered a JR of a CIRB [Canada Industrial Relations Board] 'duty of fair representation' (s.37 of the Canada Labour Code) decision, here regarding COVID vaccination policy which the union did not grieve.
In this quote the court considers the criteria for when an oral hearing is required:[13] This Court has repeatedly held that the Board is not required to hold an oral hearing on every occasion that one is requested (Paris at para. 5; Ducharme c. Air Transat A.T. Inc., 2021 CAF 34 at paras. 19, 21; Wsáneć School Board v. British Colombia, 2017 FCA 210 at para. 33; Madrigga v. Teamsters Canada Rail Conference, 2016 FCA 151 at paras. 26-28). Likewise, issues of credibility do not necessarily amount to exceptional circumstances requiring the Board to hold an oral hearing (Watson FCA at para. 51; Paris at para. 5). ... . Watson v. Canadian Union of Public Employees
In Watson v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal considered administrative fairness when a tribunal declined to hold an oral hearing, and the relevance of credibility findings to this issue:[48] The applicant next says that the Board also breached its duty of procedural fairness by rejecting her request for an oral hearing. She believes she was unable to put her position forward without the opportunity to address outstanding credibility issues by cross-examining CUPE witnesses about the legal opinions discussed above. She also believes that statements by members of the executive committee in favour of federally mandated COVID-19 vaccinations in the transportation sector were without merit and did not reflect the applicant’s concerns about vaccines. The applicant argues that she could not fully advance her position having been denied the chance to cross-examine the individuals behind these statements.
[49] I disagree that the applicant was prevented from making her case to the Board in these ways.
[50] Section 16.1 of the Code states that "“[t]he Board may decide any matter before it without holding an oral hearing.”" The Board’s exercise of this discretionary power attracts considerable deference from this Court (Paris at para. 5). In this way, the Board is to be treated as "“master of its own procedure”" (Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 167 at para. 50).
[51] Issues of credibility do not necessarily amount to exceptional circumstances requiring the CIRB to hold an oral hearing, nor do they amount to exceptional circumstances upon which to base an application for judicial review (Paris at para. 5; Nadeau at para. 6; Madrigga v. Teamsters Canada Rail Conference, 2016 FCA 151, 486 N.R. 248 at para. 28 [Madrigga]). As this Court has held, "“[c]redibility issues almost inevitably arise in antagonistic employer‑employee relations,”" and to require an oral hearing in each case raising such issues would render section 16.1 "“completely meaningless and deprived of Parliament’s intended effect”" (Nadeau at para. 6, endorsed in Ducharme at para. 21 and Madrigga at para. 27).
[52] This Court may only intervene in the Board’s decision to decide a matter without holding a hearing where the applicant has shown that they were unable to fully assert their rights or know the case they must meet (Ducharme at para. 19). The applicant here has not shown this to be the case.
[53] The Board’s analysis of CUPE’s conduct in responding to the Vaccination Policy did not engage any credibility issues; the Board itself noted that the "“chronology of events [was] straightforward and largely uncontested as it [was] based on email announcements and email exchanges”" (Decision at para. 7). The parties do not appear to disagree on the facts relevant to the issue before the Board. The applicant was able to fully advance her position and understand the respondents’ position even without cross-examining CUPE employees or ACCEX members. Further, the proposed cross-examination would appear, at least in part, to be directed to the merits of the Vaccination Policy, a consideration irrelevant to the matter that was before the Board. Finally, I note that the nature and breadth of the record before the Board demonstrates that the applicant had the opportunity to make her case fairly and fully. . Ford v. University of Ottawa
In Ford v. University of Ottawa (Div Court, 2022) the Divisional Court considered (and allowed!) a classic student case, that of a judicial review of grades. In this quote, the court notes that when credibility is an issue in an administrative hearing, an oral hearing may be required:[56] Further, where serious issues of credibility are engaged in the process, and the outcome is particularly significant to the person involved, procedural fairness will likely require an oral hearing: see Khan at para. 22.
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