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Administrative - Procrustes Issues
COMMENT
I have selected these cases as they illustrate (IMHO) a unique problem of modern litigation, one which is exacerbated by the prevalence of self-presentation in administrative cases (although it often occurs in civil court cases as well). I have seen it raised as a 'procedural fairness' issue [see the several 'Fairness - limiting evidence/pleadings/submissions' at that topic in the sidebar], but it also occurs as the general administrative law issue of 'control of process'.
In this particular form it's essentially the struggle between the complainant and the tribunal for the admission and presentation of evidence, although it can take the form of control over pleadings and submissions. The complainant (quite naturally in my view), distrusting the tribunal-institution and processes they are facing (partially through unfamiliarity, and partially through good sense with the stakes so high for them) - wants to ensure that their case is fully and fairly presented. Consequently they have quite commonly rehearsed their presentation, often to the point of non-clinical obsession.
Then, when faced with the actuality of variously: formulating/filing-claims/filing-disclosure/presenting/etc of their case, they find themselves in the modern 'Procrustes Bed' world of administrative law (it occurs in civil law too, though not so much in criminal processes due to it's greater sense of natural justice). Wikipedia describes 'Procrustes Bed' as the Greek myth of "a rogue smith and bandit from Attica who attacked people by stretching them or cutting off their legs, so as to force them to fit the size of an iron bed." Wikipedia continues: "(t)he word Procrustean is thus used by analogy to describe, for example, situations where an arbitrary standard is used to measure success, while completely disregarding obvious harm that results from the effort".
. Clark v. Mamo
In Clark v. Mamo (Div Court, 2024) the Divisional Court dismissed a tenant's RTA s.210 appeal, here argued on several 'Procrustean' evidentiary rulings during the first reconsideration (there were two recons, aka reviews), here where the tenant did not attend the main hearing.
Here the court extensively lists case doctrine - as well as SPPA, RTA and LTB Rule authority - supporting the position that the LTB has control of it's processes primarily wrt evidence admission:[44] Challenges to the LTB’s acceptance, rejection, and weighing of the evidence do not amount to questions of law. See Solomon v. Levy 2015 ONSC 2556 (Div Ct) at para 22; 2276761 Ontario Inc. v. Overall, 2018 ONSC (Div Ct) at para 29; Yang v. He, 2020 ONSC (Div Ct) at paras 9 – 10.
[45] Courts should be cautious in identifying extricable questions of law when considering appeals from the Board. The Board is a specialized tribunal and the legislature has deliberately limited appeals from its decisions to ensure that the process is streamlined, timely, and cost efficient. See Zolvnsk v. North Shore Farming Company Limited, 2016 ONS 2838 (Div Ct) at paras 7 – 8; and Christo v. Woon, 2017 ONSC 5127 (Div Ct) at para 19.
[46] Limiting appeals from an order of the LTB to questions of law is consistent with the legislature intent to minimize judicial interference in the LTB’s decision making. See Canada (Minister of Citizenship and Immigration) v. Vavilov at paras 23 – 24.
[47] A tribunal is required to conduct its proceedings fairly. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including:a. The nature of the decisions being made and the process followed in making it;
b. The nature of the statutory scheme;
c. The importance of the decision to the individuals affected;
d. The legitimate expectations of the person challenging the decision; and
e. The choices of the procedure made by the administrative decision maker itself. See Baker v. Canada (Minster of Citizenship and Immigration) 1999 CanLII 699 (SCC), 1999 2 S.C.R. 817 at paras 21 – 28.
[48] The LTB has the authority to determine its own procedure and practices and to establish rules and make orders for that purpose. See Statutory Powers Procedures Act R.S.O. 1990 (“SPPA”) s. S. 22, ss. 21.2 and 25.01 and 25.1
[49] Section 2 of the SPPA provides that the Act and any tribunal rules are to be “liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits”.
[50] Section 7 of the SPPA provides that a tribunal may proceed without a hearing in the absence of any party.
[51] Section 183 of the RTA states that the LTB should “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter.
[52] The LTB’s Interpretation Guideline 1, under the paragraph “Failing to Attend the Hearing”, states: “Where the respondent fails to appear; a notice of hearing has been sent to the parties and the matter has not been adjourned or rescheduled, the Member will proceed with the hearing, and will make a decision based on the evidence provided by the applicant at the hearing”.
[53] Rules 1.4 and 1.6 of the LTB Rules of Procedure, allocates broad powers to the LTB with respect to the manner of proceedings, including:p. Limit the evidence or submissions on any issue where satisfied there has been full and fair disclosure of all relevant matters.
q. Exercise its discretion to permit a party’s legal representative to give evidence where appropriate.
t. Refuse to consider a party’s evidence or submission where the party has not provided the evidence or submission to the LTB and the other parties as directed by the LTB.
u. Take any other action the LTB considers appropriate in the circumstances. [54] Rule 1.4 of the LTB Rules of Procedure, states:Powers of the LTB
1.4 The LTB will decide how a matter will proceed, may reschedule proceedings on its own initiative, may make procedural directions or orders at any time and may impose any conditions that are appropriate and fair. [55] Rule 1.6 the LTB Rules provide that a Member may waive or vary any provisions of the Rules and may direct the order in which the issues will be considered and determined.
[56] In the present case, at the commencement of the August 25, 2023 hearing, Member Quatrociocchi noted on record that the Tenant was served by the LTB and that the Tenant was not present nor represented “although properly served with notice of this hearing by the LTB. There was no record of a request to adjourn the hearing. As a result, the hearing proceeded with only the Landlord’s evidence”. See Order of Member Quatrociocchi dated August 25, 2023. These findings were well within the rights and powers of Member Quatrociocchi as determined by the LTB Rules.
[57] Regarding whether Member Robb erred in law and procedural fairness by not allowing the tenant’s representative to swear in the tenant, section 15(1) of the SPPA states:15 (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation as evidence in a court,
(a) Any oral testimony; and
(b) Any document or other thing,
Relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious. [58] Given the volume of LTB cases heard by the LTB each year, the LTB needs discretion and flexibility to conduct the hearings in a manner that the LTB Members deem appropriate – to ensure expeditious access to justice. There was no error in law and no procedural unfairness by allowing the Tenant to provide evidence without his evidence being sworn under oath. Further, there was no bias or apprehension of bias by the Member when she noted that it was “inappropriate” for the Tenant’s representative to attempt to “swear” in his client. The “inappropriate” comment was appropriate in the circumstances.
[59] The transcript discloses that Member Robb’s directions during the hearing constituted reasonable exercise of her discretion which was necessary to manage the conduct of the hearing.
[60] Pursuant to the LTB Rules, Member Robb was entitled to consider evidence from either party’s representative. In the circumstances, it was not an error in law for Member Robb to consider the evidence of the Landlord’s paralegal Weatherston that the Notice of Hearing was sent to the Tenant by Weatherston which evidence supplemented the evidence that the LTB also sent notice to the Tenant by ordinary mail.
[61] With respect to the Tenant’s argument that Member Robb breached procedural fairness by her conduct at the hearing, the LTB has broad discretion to manage its own process to ensure the most expeditious and fair determination of the issues in a proceeding. At paras 62-71 the court further reviews the facts and events of the case, finding that the Board's behaviour was fair in light of these (above) evidence-limiting and other authorities, and that the reconsideration (review) procedures followed were fair.
. Jagadeesh v. Canadian Imperial Bank of Commerce
In Jagadeesh v. Canadian Imperial Bank of Commerce (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of a Canadian Human Rights Commission's dismissal of the appellant's complaint.
Although styled as a fairness/bias issue (at paras 53-94), I locate this theme more consistently in the general administrative category of 'control of process' - here in a new(!) 'Procrustes' sub-topic:i. Improperly Narrowing the Scope of the Complaint
[54] Mr. Jagadeesh’s first argument is that the Commission investigator improperly limited the scope of his complaint, by refusing to consider allegations of discrimination that he made in the documentary evidence he submitted to the investigator in support of his complaint, rather than in the complaint form itself.
[55] In support of this contention, Mr. Jagadeesh points out that the complaint form directs complainants to describe their situation in the body of the form, further stating that "“[i]f you have any supporting documents, keep them with you. You may be asked for them at a later date during the process”".
[56] Mr. Jagadeesh stated at the beginning of the narrative portion of his complaint that "“I have tried to give as much detail as possible – within the 3 page limit. I have kept all ORIGINAL, dated, emails, doctor reports, medical records & supporting documents”". He went on to state "“As advised by you, I am NOT attaching any of these documents at this time, & plan to show you all the details in the future”".
[57] As I understand Mr. Jagadeesh’s argument, it is that his reference to his 102 pages of supporting documentation in his complaint form essentially incorporates those documents by reference into his human rights complaint. As a result, he says that the investigator was required to consider any additional allegations of discrimination that he raised in those documents.
[58] These additional allegations include, amongst other things, his claim that his employer had him followed and photographed, as a means of intimidating him, and his claim that senior CIBC managers were sexually exploiting junior employees in exchange for favours.
[59] I cannot accept this argument. There is a distinction between allegations of discrimination, which must be identified in the complaint form, and the evidence by which a complainant hopes to establish the veracity of their allegations, which can be provided later in the investigation.
[60] As this Court stated in Manfoumbi-Mouity v. Canada (Attorney General), 2017 FCA 240, the Commission does not violate the principles of procedural fairness by limiting its analysis to allegations contained in the complaint form, as filed. Nor does the Commission treat a complainant unfairly by limiting the number of pages in the complaint form: at para. 2.
[61] Consequently, there is no merit to Mr. Jagadeesh’s argument with respect to the allegedly unfair limiting of the scope of his complaint.
ii. Not Giving Mr. Jagadeesh a Sufficient Opportunity to Put His Evidence Before the Investigator and the Commissioners
[62] Mr. Jagadeesh further submits that he was treated unfairly as he was unable to put his allegations of discrimination fully before the investigator and the Commissioners. This was because the investigator cut his interview short, and because the Commission limited the number of pages of submissions that he could provide in response to the investigation report.
[63] As noted earlier, Mr. Jagadeesh had some 102 pages of evidence that he believed supported his complaint. He provided these to the investigator. While his interview with the investigator may not have lasted as long as he wanted it to, the investigator offered Mr. Jagadeesh the opportunity to provide her with any other documents, evidence and witness information that he believed supported his complaint, beyond that he had already provided. Mr. Jagadeesh has not identified any specific information or evidence that he was unable to put before the investigator. Indeed, he confirmed to the investigator that he had provided the Commission with everything that he had with respect to his allegations of discrimination against the CIBC.
[64] Insofar as Mr. Jagadeesh’s response to the investigation report is concerned, fairness requires that parties be given an opportunity to respond to such reports: Radulesco v. Canadian Human Rights Commission, 1984 CanLII 120 (SCC), [1984] 2 S.C.R. 407 at pages 410-411, [1984] S.C.J. No. 48, Canada (Attorney General) v. Davis, 2010 FCA 134 at para. 6. Such opportunity does not, however, have to be unlimited, and it is not unfair to limit the number of pages that a party can file with the Commission commenting on an investigation report: Manfoumbi-Mouity, above at para. 2.
[65] In my view, the opportunities afforded to Mr. Jagadeesh to provide the Commission investigator with additional information and to respond to the investigation report respected his participatory rights and were sufficient to satisfy the requirements of procedural fairness.
iii. Conducting a Biased Investigation
[66] Mr. Jagadeesh further asserts that the second investigation into his human rights complaint was not a neutral one, and that the investigator was biased against him.
[67] Mr. Jagadeesh says that this is demonstrated by the fact that the investigation report was "“procedurally unfair, biased, under inclusive, unreasonable, and also unethical, because many of his crucial evidences were ignored, overlooked, and misconstrued and, many critical details of central importance were not even considered”". He goes on to state that "“[t]here were fundamental flaws in the analysis. It also included most irrelevant peripheral details to distract and misguide the Commission’s final decision makers”".
[68] The Commission is clearly subject to the duty of fairness when exercising its statutory power to investigate human rights complaints: SEPQA, above. Amongst other things, this requires that the Commission and its investigators be free from bias.
[69] The test for determining whether actual bias or a reasonable apprehension of bias exists in relation to a particular individual is well known: the question is what an informed person, viewing the matter realistically and practically–and having thought the matter through–would conclude. That is, would he or she think it more likely than not that the individual, either consciously or unconsciously, would not decide the matter fairly: see Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, 68 D.L.R. (3d) 716; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, at paras. 20-21, 26.
[70] That said, the non-adjudicative nature of the Commission’s responsibilities means that the standard of impartiality required of Commission investigators is something less than that required of the Courts. The question is thus not whether there exists a reasonable apprehension of bias on the part of the investigator, but rather, whether the investigator approached the case with a "“closed mind”": Zündel v. Canada (Attorney General) (1999), 1999 CanLII 9357 (FC), 175 D.L.R. (4th) 512 (T.D.), at paras. 17-22, aff’d 2000 CanLII 16731 (FCA), [2000] F.C.J. No. 2057, 195 D.L.R. (4th) 394.
[71] As the Federal Court stated in Canadian Broadcasting Corp. v. Canada (Canadian Human Rights Commission), (1993), 1993 CanLII 16517 (FC), 71 F.T.R. 214, [1993] F.C.J. No. 1334 (F.C.T.D.), the test in cases such as this is thus "“whether, as a matter of fact, the standard of open-mindedness has been lost to the point where it can reasonably be said that the issue before the investigative body has been predetermined”": at para. 43.
[72] The burden of demonstrating bias rests on the person alleging bias. An allegation of bias is a serious allegation, and challenges the very integrity of the individual whose conduct is in issue. Consequently, a mere suspicion of bias is not sufficient: R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193 at para. 112; Arthur v. Canada (Attorney General), 2001 FCA 223, at para. 8. Rather, the threshold for establishing bias is high: R. v. R.D.S., above at para. 113. Mere disagreement with the findings of the investigator does not amount to evidence of bias.
[73] The Commission addressed Mr. Jagadeesh’s allegations of bias and unethical conduct on the part of the investigator in its decision. It observed that he "“did not provide any concrete examples that would lead the Commission to find that the [investigation report] or investigation was ‘biased or unethical’ or that a reasonably informed person, viewing the matter realistically and practically, would draw such a conclusion”".
[74] I will address Mr. Jagadeesh’s allegations as to the thoroughness and reasonableness of the Commission decision further on in these reasons. Insofar as his allegation of bias on the part of the investigator is concerned, however, suffice it to say that there is no evidence before us that would support such an allegation.
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