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Appeal-Judicial Review - Fairness - Notice. Hodge v. Registrar Real Estate and Business Brokers Act
In Hodge v. Registrar Real Estate and Business Brokers Act (Div Court, 2022) the Divisional Court considered the adequacy of notice in a disciplinary context, here in a Real Estate and Business Brokers Act, 2002 LAT 'Notice of Proposal' disciplinary appeal:[17] A person who will be affected by a decision of decisionmaker is entitled to notice of the case to be met. This is fundamental fairness. Procedural fairness exists 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”: BCM International Canada Inc. v. Canada (Employment, Workforce Development and Labour), 2021 FC 687 (CanLII) at para. 22; Baker at paras. 22-28.
[18] In follow-up written submissions, the Registrar conceded that the Appellant did not receive notice that the workplace misconduct allegations would form part of the case against him. The Registrar also concedes that no amendment to the Notice was provided, nor did the LAT consider any means by which to mitigate any prejudice to the Appellant arising from the lack of notice to him that it would consider and rely on the workplace conduct evidence.
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[23] The Registrar submits that this evidence was not referred to in the portion of the LAT reasons discussing penalty, and thus despite the lack of procedural fairness, this made no difference to the outcome and is not a reviewable error. In such cases, it is open to the court on review to dismiss an appeal: See Al-Kazely v. v. College of Physicians and Surgeons of Ontario, 2022 ONSC 44 (Div. Ct.), at paragraph 48; Dr. Rajiv Maini v. HPARB et al., 2022 ONSC 3326 (CanLII), at para. 30.
[24] The penalty portion of the reasons do not refer to the weight or impact of the workplace misconduct on the decision to suspend the Appellant’s registration for three months. However, the reasons for penalty did not remove these aggravating facts from the penalty calculation. This was not minor misconduct: the LAT characterized it as having weighed in the decision. It is objectively serious conduct. In all the circumstances, I cannot rule out that the LAT did not consider the workplace conduct evidence in assessing the appropriate penalty which it imposed on the Appellant.
[25] On this basis alone, I would quash the appeal and remit the matter to the LAT for a new hearing. On the question of whether the LAT decision to suspend the Appellant’s registration for three months, that question cannot be adequately assessed without knowing the role the workplace misconduct played in the penalty. That will fall to be determined after a procedurally fair hearing into the allegations for which the Appellant had notice.
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