Appeal-Judicial Review - Fairness - Disclosure. Nahas v. HPARB
In Nahas v. HPARB (Div Court, 2022) the Divisional Court considered a doctor's JR of the HPARB dismissal of an appeal of an ICRC investigation and decision that he undergo "specified continuing education". The applicant raised the adequacy of the disclosure they received at the ICRC investigative stage as a fairness issue:
 With respect to disclosure more generally, the extent of the duty of procedural fairness depends on a variety of factors as set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 SCR 817.. Caron v. Canada (Attorney General)
 With respect to the nature of the decision being made, the ICRC performs a screening role. It screens complaints and decides if any further action is necessary: Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 7416 (Div. Ct.) at paras. 37-38. It is not adjudicating in a formal way. It decides whether a complaint should be referred to a discipline hearing (where it would be adjudicated with considerable procedural requirements culminating in a formal hearing) or some other response should be made.
 The ICRC has procedural fairness obligations commensurate with its role. The ICRC must give the member notice of the complaint and an opportunity to make written submissions: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, para. 47. Those steps were taken in this case.
 With respect to the statutory scheme, the Code contemplates that it is at the HPARB review stage that the applicant receives the complete record of what was before the ICRC. The applicant received that material, including the four documents, and had an opportunity to make submissions about them. At the HPARB, the main issue raised was whether the s. 75 investigation to obtain the medical records gave rise to reporting obligations. That was also the main focus in the applicant’s factum in this court. The applicant abandoned that ground for relief at the outset of the oral hearing in this court.
 On the question of whether there was adequate disclosure of the complaint at the ICRC stage, the applicant relies on Volochay, yet that case is not comparable. In Volochay, the member was not given notice of the complaint or an opportunity to respond to it. The complaints committee took steps without any submissions from the member. The applicant also relies on Ajao v. College of Nurses of Ontario, 2011 ONSC 6061 (Div. Ct.). However, that case began with a notice of termination of employment. The conduct giving rise to the ICRC decision was collected in an investigation and not shared with the member. The applicant also relies on Gopinath v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 3143 (Div. Ct.), which arose from a s. 75 investigation. In that case, the court noted at para. 12 that “it is adequate at the investigation stage for the member to know the allegations or substance of the complaint against him or her, not all of the information obtained during the course of the investigation.” The inspector had interviewed numerous witnesses and although a summary was provided, it did not make the member aware of the substance of the allegations. The member was not given the names of the people or the details of the conduct discussed with them. These cases were all different in material ways.
In Caron v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal held that a failure to disclose applied authority was not a fairness breach:
 In response to the applicant’s submissions on procedural fairness, I find the applicant was unable to demonstrate any breaches. The one complaint on the question of procedural fairness that did not deal with the Board’s factual findings, that being the Board’s reliance on jurisprudence that had not been disclosed to the applicant (Canada v. Rinaldi, 127 F.T.R. 60,1997 CanLII 16721 (FC)), is not a breach of procedural fairness. This is not a situation where the Board introduced a new principle of law or took the case on a substantially new and different analytical path.. Denso Manufacturing Canada, Inc. v. Canada (National Revenue)
In Denso Manufacturing Canada, Inc. v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the Baker test relating to disclosure by the decision-maker:
A. Procedural Fairness – Failure to Disclose the Opinion of a Senior Program Advisor Brown v. Canada (Citizenship and Immigration)
 As noted by the majority of the Supreme Court in Vavilov, at paragraph 77, "“[t]he duty of procedural fairness in administrative law is "eminently variable", inherently flexible and context-specific …”". The majority of the Supreme Court then set out five factors that were previously identified by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 S.C.R. 817 (Baker):
(1) the nature of the decision being made and the process followed in making it; In Baker, after referring to these factors, the Supreme Court noted:
(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 procedure made by the administrative decision maker itself …
28 I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.....
 In Canadian Pacific, at paragraph 56, this Court held that "“the ultimate question [for procedural fairness] remains whether the applicant knew the case to meet and had a full and fair chance to respond”". ...
 In my view, the Minister had no such duty or obligation. In May v. Ferndale Institution, 2005 SCC 82, the majority of the Supreme Court of Canada noted:
92 In the administrative context, the duty of procedural fairness generally requires that the decision-maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker fails to provide sufficient information, his or her decision is void for lack of jurisdiction. …
In Brown v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal comments on administrative procedural fairness in the immigration detention context:
 Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC),  2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1,  1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).
 Although the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings "“will merit greater vigilance by the courts”" (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), 1993 CanLII 128 (SCC),  1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.
 Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52,  2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., 1980 CanLII 10 (SCC),  1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.