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Appeal-Judicial Review - Fairness - Baker - Basics (2)

. Fitchett v. The Corporation of the Town of Gravenhurst

In Fitchett v. The Corporation of the Town of Gravenhurst (Div Court, 2023) the Divisional Court heard an interesting JR case where a man who had plead guilty to a small 'illegal fire' POA fine, was later sent an invoice reflecting the actual fire department actual costs. He applied for a judicial review, which was considered on the Baker fairness criteria:
A. Degree of Procedural Fairness Required

[8] The Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 states that the degree of procedural fairness required of any administrative decision maker is to be determined by reference to all the circumstances of that decision. These include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of the procedure made by the administrative decision maker itself: at paras. 21, 23-27. Taken as a whole, the circumstances of this case did not lead to high level of procedural fairness owed.

[9] Nature of decision being made and process followed in making it: Mr. Fitchett characterizes the decision as leading to a quasi-criminal conclusion. He also submits that the amount of the invoice is substantial and attracts significant consequences. Specifically, he notes that if the invoice remains unpaid, the municipality is entitled to recover it through a tax sale of his property.

[10] I disagree that the decision to issue the invoice had quasi-criminal consequences. Mr. Fitchett’s conviction for a provincial offence under the Burning By-Law, as a result of his guilty plea, occurred under a separate process. The Respondents did not rely on the guilty plea or conviction to conclude an invoice should be issued. Instead, they separately determined that the Burning By-Law was violated for the purpose of issuing the invoice. In other words, the determination at issue here was simply a monetary matter.

[11] Further, the process for deciding to issue this type of invoice is far from quasi-judicial. Allegations of a Burning By-Law violation typically arise in response to an emergency call. The decision as to whether a violation has occurred is then based on information collected from firsthand observations at the fire. Specifically, the incident commander who attends on the scene of the fire takes photographs and makes notations of any violations. The Deputy Fire Chief then promptly reviews the information and makes a decision whether to confirm any violations.

[12] The property owner also has the opportunity to become immediately involved at the scene of the fire to mitigate any impacts. Subsection 446(1) of the Municipal Act, 2001, S.O. 2001 c. 25 provides that where the municipality under a by-law can direct a person to do a “matter or thing,” the municipality may also provide that in default of the person doing it, the matter or thing shall be done at the person’s expense. In the context of an attendance at a fire, this means that the first step will be for the fire fighters to direct the property owner to cease the activity and extinguish the fire. If the owner does not extinguish the fire, the fire fighters will do so and the owner will be responsible for the related fees.

[13] Subsections 9(2) to 9(4) of the Burning By-Law establish this sequence of events mores specifically. They provide:
9(2) Open air fires in contravention of this by-law are not approved by the Chief Fire Official and shall be extinguished.

(3) Where the person does not comply with the directive to extinguish the open air fire, the Chief Fire Official, his firefighters, fire trucks or any other fire equipment may enter upon the land where the fire is located to extinguish the fire.

(4) Upon the fire department attending to extinguish the open fire, whether it since has been extinguished or not, the owner will be responsible to pay fees as established in the Fees and Services Charge By-law.
[14] In short, the decision-making process here includes the notation of the alleged violation(s) as the incident unfolds and the immediate opportunity for the property owner to mitigate the damages.

[15] Nature of statutory scheme: The statutory scheme reflects the immediacy of the decision-making process with respect to the Burning By-Law violation, as outlined above. With respect to the issuance of the invoice, it also provides the municipality with broad powers to charge an individual for a service done on their behalf. For example, s. 391(1) of the Municipal Act provides:
391(1) Without limiting sections 9, 10 and 11, those sections authorize a municipality to impose fees or charges on persons,

(a) For services or activities provided or done by or on behalf of it;

(b) For costs payable by it for services or activities provided or done by or on behalf of any other municipality or any local board; and

(c) For the use of its property including property under its control.
[16] Subsection 391(4) confirms that the municipality may impose a charge whether or not the service was mandatory:
391(4) A fee or charge may be imposed whether or not it is mandatory for the municipality or local board imposing the fee or charge to provide or do the service or activity, pay the costs or allow the use of its property.
[17] Further, the Fees By-Law makes it mandatory to invoice the property owner once it is determined the Burning By-Law was violated. It provides that the fees set out in Schedule 1 to the Fees By-Law “shall be paid for the services and activities listed.” Schedule 1 includes a fee for the fire department’s response to a violation of the Burning By-Law. The description reads:
When fire department responds as a result of a violation of the provisions of the Burning Control By-law. Property owner invoiced.
[18] The Fees By-Law therefore does not afford the Town any discretion regarding whether to issue an invoice in these circumstances.

[19] Importance of decision – The decision that Mr. Fitchett violated the By-Law resulted in an invoice to him of close to $10,000. This is an amount that would be significant for many people. However, the decision does not otherwise affect Mr. Fitchett’s rights. Further, counsel submitted that Mr. Fitchett pursued this application judicial review as a matter of “principle;” he did not suggest the amount of the invoice would have unusually severe consequences for Mr. Fitchett.

[20] Legitimate expectations: Mr. Fitchett should not have expected a more extensive process than he received. As indicated, the legislation provides the municipality with broad discretion to invoice individuals. It has set out the terms for doing so in the Fees By-Law. Pursuant to that by-law, once it has been determined that the Burning By-Law was violated, the Town has no discretion with respect to issuing the invoice.

[21] The only other source of Mr. Fitchett’s legitimate expectations would have been the Fact Sheet that was sent to him the day after the fires. As further described below, the Fact Sheet invited Mr. Fitchett to follow up with the Deputy Fire Chief to ask questions. While this process was followed, and Mr. Fitchett, ultimately spoke with the Deputy Fire Chief, there was no suggestion in the Fact Sheet, by-laws or legislation that a more formal process would be available.

[22] Choices made by the administrative decision-maker: Under this factor, Baker states that weight must be given to the choice of procedures made by the administrative decision-maker itself and its institutional constraints. In this case, the Respondents provided a comparatively informal process to dispute the invoice, but one which provided Mr. Fitchett with direct access to the decision-maker, the Deputy Fire Chief.
. Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario)

In Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario) (Div Court, 2022) the Divisional Court considered basics of procedural fairness from the leading Baker case:
Consideration of the Baker factors

[44] The criteria to be considered in determining the content of the duty of procedural fairness include:
(1) the nature of the decision being made and the process followed in making it;

(2) the nature of the statutory schemes and the terms of the statute pursuant to which the body operates;

(3) the importance of the decision to the individual affected;

(4) the legitimate expectations of the person challenging the decision; and

(5) choices of procedures made by the agency itself.[8]
[45] As stated in Baker, "underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker."[9]
. Corporation of County of Simcoe v. Ontario

In Corporation of County of Simcoe v. Ontario (Div Court, 2022) the Divisional Court set out the Baker principles for administrative procedural fairness, here considered in the light of the facts of this judicial review case:
Procedural Fairness

[41] The common law duty of fairness is presumed to apply whenever an administrative decision affects the rights, privileges or interests of an individual. This presumption can only be ousted by clear statutory language or necessary implication to the contrary. [10]

[42] The nature and content of the procedural protections to be afforded to individuals is context specific and depends upon the application of factors identified by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)[11]:
a. The nature of the decision;

b. The nature and terms of the statutory scheme and the role of the decision in that scheme;

c. The importance of the decision to the affected party;

d. The legitimate expectations of the affected party; and

e. The decision-maker’s choice of procedure.
[43] A review of the five Baker factors makes clear that the procedure chosen by the Director meets the burden of procedural fairness.

[44] The first Baker factor augers against robust procedures as the decision was not akin to a judicial process.

[45] With respect to the second factor in Baker, the Act affords no right of appeal from the decision, which would suggest some level of procedural fairness is required. With that said, however, the order is temporary, and the applicant had – and continues to have – the right of review on underlying orders and referrals. Indeed, Sunset Manor met with Ministry representatives prior to the imposition of the order. Further, the Direction allows for dialogue to rectify the problems identified within the temporary order which is, presumably, akin to further submissions. Moreover, the priority of the Act is protection of residents, and notice and submissions would undermine this mandate by delaying protective action, especially since LTHC residents are often vulnerable people. Thus, the second factor does not, on the aggregate, demand that a heightened level of procedural fairness be afforded the applicant in this situation. This is a weighty factor.

[46] The third Baker factor weighs in favor of more stringent procedural rigor since the decision is very important to the applicant.

[47] The fourth Baker factor weighs against a robust process that includes notice and submissions since the Act does not provide for such a process and, as such, the applicant could not have had a reasonable expectation of same.

[48] Finally, the fifth Baker factor suggests that the procedure chosen by the Director is appropriate in the circumstances. The temporary refusal to admit new residents protects vulnerable people from entering a potentially hazardous new home. Conversely, the invitation to provide updates enables the affected home to engage in a discourse with the Ministry such that the applicants’ concerns can be addressed in real time. Further, it is important to note that in this case, the applicant met with the Ministry prior to the rendering of the decision where the applicant voiced its concerns regarding the inspections and other relevant matters. Accordingly, the process undertaken by the Ministry adequately balanced competing interests and ensured that the applicant could voice its concerns prior to the rendering of said decision. This is therefore a weighty factor.

[49] When all five Baker factors are considered, it is clear that the applicant was afforded ample procedural fairness in that an appropriate balance was struck in the circumstances.


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