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Administrative - Written Hearings. Casey’s Propane v. Technical Standards and Safety Authority
In Casey’s Propane v. Technical Standards and Safety Authority (Div Court, 2024) the Divisional Court considers an appeal from "an inspector’s orders following a carbon monoxide poisoning incident in a home" by the investigator "Technical Standards and Safety Authority [SS: TSSA], which regulates fuel burning appliances and fuel distributors in Ontario".
Here, the court dismisses a procedural fairness argument where the Tribunal (TSSA) held a written hearing:[5] ... Further, the appellants were not entitled to the requested high degree of procedural fairness. The in-writing hearing met the director’s procedural obligations and the appellants have not demonstrated any unfairness caused by the failure to produce documents. For the following reasons, the appeal is dismissed.
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Did the Director breach procedural fairness by not holding an in-person hearing?
[19] The appellants submit the director breached procedural fairness by holding a written hearing, which meant they did not have the opportunity to cross-examine witnesses.
[20] I do not find any unfairness in the procedure the director followed. The duty of fairness is flexible and may vary based on all the circumstances. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 lists the following factors to consider in assessing the requisite degree of procedural fairness in a particular case: (a) the nature of the decision; (b) the statutory scheme; (c) the importance of the decision; (d) the legitimate expectations of the person challenging the decision; and (e) the choice of procedure made by the decision-maker.
[21] The first three factors – the nature of the decision, the statutory scheme, and the importance of the decision -- do not point to a high level of procedural fairness in this case. As set out above, the statutory scheme includes stronger investigative powers to be used for proceedings with greater consequences to the affected person. Here, the proceeding was for an administrative, documentary purpose with comparatively low consequences to the appellants. The appellants were not at risk of quasi-criminal sanctions nor of having their authorization revoked.
[22] The statute also does not require an in-person hearing. The relevant provision for the hearing in this case, s. 22(4), requires the director to hold a hearing after receiving an appeal from an inspector’s order, but does not prescribe the nature of the hearing.
[23] Given that the statutory scheme does not specify an in-person hearing and considering the administrative nature of the proceeding, the appellants did not have a legitimate expectation of an in-person hearing. In addition, the appellants failed to object to the in-writing hearing in a timely way. The director directly advised the parties the hearing would be in writing by a notice of written hearing on March 26, 2021. The notice stated any party could object to the hearing proceeding in-writing within 15 days. The appellants included a request for an in-person hearing in supplementary submissions over a month after the expiry of the 15 days.
[24] In any event, the appellants could not have had a reasonable expectation of a full in-person hearing. The hearing took place in the spring of 2021, which was during the COVID-19 pandemic, when multi-party virtual hearings were not yet in widespread use. The appellants seemed to advert to this in their request, when they requested that the hearing “not be in writing but orally and in person, if possible.” (emphasis added) Further, given the pandemic and the administrative nature of the proceeding, it is appropriate for the court to defer to the director’s choice of procedure.
[25] The appellants had a full opportunity to present their case in-writing. They filed three sets of submissions (initial, supplementary and reply) including five affidavits. Although in its submissions to the director, the respondent offered to make the inspector available for a recorded examination once the pandemic stay at home order was lifted, the director was not required to order that such an examination take place. I reject the appellants’ contention that the inspector’s credibility was in issue. The appellants’ primary contention was not that the director ought to have disbelieved the inspector, but that the inspector should have conducted further investigation that may have uncovered facts supporting the appellants’ theories. The director was able to fairly address this position on the written record and, as set out above, in many cases concluded the inspector’s orders should be rescinded. Overall, I dismiss the argument that the in-writing hearing was procedurally unfair. . Klos v. Canada (Attorney General)
In Klos v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered several federal statutory provisions bearing on the type of 'hearing' that may be conducted, here in the context of a labour JR where the applicant wanted an oral hearing - not the written hearing conducted by the Board:[6] The applicant alleges that the Board failed to observe the principles of natural justice and procedural fairness. We disagree. The Board announced that it intended to proceed by way of written submissions—an appropriate and fair manner of proceeding in a case such as this—and gave the applicant at least two opportunities to make submissions. The applicant declined to do so.
[7] The applicant submits that s. 228(1) of the Act, which provides that the parties must have “an opportunity to be heard” means that the Board was obligated to give him an oral hearing. In many statutes such as this, such as section 16 of the Federal Courts Act, R.S.C. 1985, c. F-7, “heard” means that submissions can be received in oral or written form. In this case, this is buttressed by section 22 of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, which specifically provides that the Board may decide any matter before it without holding an oral hearing, and also by an authority of this Court that binds us: Boshra v. Canadian Association of Professional Employees, 2011 FCA 98, 90 C.C.E.L. (3d) 89 at para. . 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. . Hutchinson v. Aviva General Insurance Company
In Hutchinson v. Aviva General Insurance Company (Div Court, 2023) the Divisional Court considered an appeal from a LAT ruling where the appellant sought (and was denied) conversion of the oral hearing to written format:[25] It has long been an axiom of administrative law that specialized tribunals are best placed to select among available procedural options based on their balancing of the competing interests of expedition, cost-effectiveness, and full participation: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 27.
[26] The LAT retains the following powers by virtue of these provisions of the Statutory Powers Proceedings Act, R.S.O. 1990, c. S.22 (SPPA):a. to determine its own procedures and practices, and for that purpose to make orders with respect to the procedures and practices that apply in any particular proceeding: s. 25.0.1;
b. to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes: s. 23(1); and
c. to make orders or give directions at an oral or electronic hearing as it considers necessary for the maintenance of order at the hearing: s. 9(2). [27] In considering procedural fairness at the administrative tribunal level in Rogers Communications Partnership v. Ontario Energy Board, 2016 ONSC 7810 (Div. Ct.) at para. 18, this court endorsed the following guidance from Sound v. Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R. 170 at para. 42:[…] whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other. [28] The Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (LAT Rules) contain a number of sections which address procedural fairness, accommodation, motions, adjournments and the effective and efficient resolution of disputes. These include:Rule 3.1 - the liberal interpretation and application of the LAT Rules, which may be waived, varied, or applied to facilitate a fair, open, and accessible process and to allow effective participation by all parties, whether represented or not; to ensure efficient, proportional, and timely resolution of the merits of the proceedings; and to ensure consistency with the governing legislation and regulations;
Rule 7 - accommodation of parties, representatives and witnesses for Ontario Human Rights Code-related needs;
Rule 15 - motions, including the contents of a motion; the timing of a motion; serving and filing a motion; and when the motion may be heard by the LAT; and
Rule 16 - adjournments, including when and how they may be made and when oral requests may be made. Analysis
The Hearing
[29] I have scrutinized the transcript of proceedings, paying particular attention to passages at pages 28, 42, 49, 54, 58, 59 and 60 which the Appellant contends demonstrate bias on the part of the adjudicator.
[30] I do not agree that the conduct of the hearing shows any bias on the part of the adjudicator. As well, the Appellant has failed to establish that she has been denied natural justice or procedural fairness.
[31] On the contrary, the adjudicator was eminently fair to the Appellant during the hearing:a. she agreed to entertain the short-served motion;
b. she invited the Appellant to tender medical evidence which had not formed part of the motion materials;
c. in an effort to accommodate the Appellant’s condition, she canvassed several options for how the matter might proceed as scheduled;
d. she afforded counsel the opportunity to consult with his client and with senior counsel from his firm;
e. she allowed counsel ample opportunity to give submissions; and
f. she permitted counsel to explain the dilemma he faced in not being able to obtain instructions to proceed.
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