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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Administrative - Written Hearings

. 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.

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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