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. Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing

In Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing (Div Ct, 2021) the Divisional Court considered the appellate use of transcripts of evidence in an administrative context:
[111] By governing legislation and at common law, the LAT may keep a transcript of proceedings, but is not required to do so: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 20(e); Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, s. 6(3); 168774 Ontario Inc. v. Registrar of Alcohol and Gaming, 2017 ONSC 3579 (Div. Ct.), at para. 15; Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 S.C.R. 793, at paras. 75-76.

[112] Even so, the absence of a complete transcript of a hearing can result in a denial of natural justice if there is the “serious possibility” that it prevents an appellate court from being able to consider a ground of appeal. The issue is whether the record that is before the appellate court still permits it to properly dispose of the appeal. This is so, even if the tribunal promised to make a recording of the proceeding: Canadian Union of Public Employees, Local 301, at paras. 72, 81. The onus of demonstrating the serious possibility that a ground of appeal cannot be pursued lies on the appellant: 168774 Ontario Inc. (c.o.b. Swazzees Restaurant and Bar) v. Ontario (Alcohol and Gaming Commission, Registrar), [2017] O.J. No. 2967 (Div. Ct.)(“Swazzees”), at para. 15(d).

[113] Moreover, it is not enough simply to raise the mere possibility of prejudice from the failure of the record; hypothetical or speculative possibilities of prejudice do not suffice: Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board, 2013 ONSC 7636 (Div. Ct.), at para. 8. This aligns with the principle that where a breach of procedural fairness is “inconsequential, trivial or merely technical in nature”, a request for a rehearing may properly be denied: Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856, at paras. 66-67. In other words, something more than a mere generalized claim of prejudice is required: Aliai v. Canada (Minister of Citizenship and Immigration), 2017 FC 82, at para. 23.

[114] Aspects of an appeal or the record on appeal can obviate the need for a full transcript. Where the right of appeal is limited to questions of law, the absence of a transcript of evidence is unlikely to deprive parties of the ability to argue a ground, particularly when the tribunal has provided full reasons for its decision: Billion v. Vaillancourt, 2016 ONSC 5820 (Div. Ct.), at para. 7; 554846 Ontario Ltd. (c.o.b. as the Wine Cellar U-Brew) v. Ontario (Alcohol and Gaming Commission), [2004] O.J. No. 438 (Div. Ct.), at para. 2. Prejudice from gaps in the recording of evidence can be compensated for by evidence summarized in submissions from a party in support of its position: Swazzees, at para. 15(c).


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