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Appeal-Judicial Review - Fairness and the Human Right Code

. Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa

In Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa (Div Ct, 2022) the Divisional Court makes the important point that procedural fairness includes consideration of the party's human rights under the HRC:
[25] In Baker v. Canada (Minister of Citizenship and Immigration),6F[7] the Supreme Court of Canada at paragraph 87 confirmed that the duty of procedural fairness may apply in a variety of circumstances, but that the content of the duty is not uniform. In determining the content of the duty of procedural fairness, the Court held:
Although the duty of procedural fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected… the purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair an open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision maker.
[26] The duty of procedural fairness includes an obligation to accommodate under the Human Rights Code. That accommodation “must accord the tenant full and fair participation in the process to the point of undue hardship”.7F[8]

[27] Accommodation under the Code is a collaborative process, requiring both the Board and the individual requiring accommodation to cooperate to facilitate a search for accommodation.8F[9]

[28] The Board sets out in its Rules of Practice (“Rules”) and Interpretation Guidelines the process to be followed where a party seeks an accommodation. Generally, it requires that notice be given as soon as possible to Board staff and that the parties work collaboratively.

[29] Further Interpretation Guideline 17 states:
If, on the day of the hearing, a party believes that they do not have an adequate opportunity to participate in the proceeding and require accommodation, they should bring their concerns to the attention of the presiding Member as soon as possible during the hearing. Depending upon the circumstances, the Member may require the party to provide sufficient evidence to establish that they are covered under section 1 of the Code and need accommodation. The Member must be respectful of the party’s privacy interests and should not require the party to disclose more information than is needed to make the necessary determination respecting the issue of accommodation.




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