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Judicial Review - Fairness - Is Prejudice Required?

This much-contested issue asks: how much harm is required to a party by a breach of fairness before it becomes actionable - before it 'counts'. Recently, if the lower courts find that a breach of fairness incurs little or no 'prejudice' to a party, they will normally grant no remedy. This is in contrast to older Supreme Court of Canada law which holds that any 'fairness' breach requires a remedy, normally re-doing the lower hearing.

. Cardinal v. Director of Kent Institution

In Cardinal v. Director of Kent Institution (SCC, 1985) the Supreme Court of Canada did not require prejudice to a party by a breach of fairness before it granted a remedy:
[23] ... I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
. McGregor v. Pitawanakwat

In McGregor v. Pitawanakwat (Ont CA, 2017) the Court of Appeal held that breach of fairness is a 'free-standing' ground of review, not requiring prejudice to a party before it is actionable:
[12] A final preliminary point is that the denial of a fair hearing is a free-standing ground of review. A correct decision cannot cure an unfair hearing, because the unfairness would taint the entire proceedings: see R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 100.
. R. v. Olusoga

In R. v. Olusoga (Ont CA, 2019) the Court of Appeal stated the principle that prejudice need not be required from a breach of procedural fairness before it becomes actionable:
[13] We agree with duty counsel that the appeal must be allowed and a new trial ordered. It is well-established that “a miscarriage of justice need not always be supported by the demonstration of actual prejudice to an appellant; sometimes, public confidence in the administration of justice is just as shaken by the appearance as by the fact of an unfair proceeding”: R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 51 (quoting from R. v. Kankis, 2012 ONSC 378, 281 C.C.C. (3d) 113, at para. 37); see also R. v. Cameron (1991), 1991 CanLII 7182 (ON CA), 2 O.R. (3d) 633 (C.A.), at pp. 638-39; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 541-42.
. Foxgate Development Inc. v. Jane Doe

In Foxgate Development Inc. v. Jane Doe (Ont CA, 2021) the Court of Appeal re-affirmed the principle from Cardinal v Kent Institution (SCC, 1985) that no prejudice need be shown on a finding of lack of procedural fairness:
[54] The requirements of fairness in the context of this proceeding constituted an independent right of Mr. Williams. It is no answer to the denial of these rights to say a fair opportunity to be heard would have made no difference in the outcome. As Le Dain J. stated in Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p. 661:
I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
[55] The narrow exception to this principle carved out in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at p. 228, does not apply here, as there was no inevitable outcome to these proceedings. Consequently, the order striking Mr. Williams’ pleadings must be set aside.
. Dr. Rajiv Maini v. HPARB et al.

In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered whether a breach of fairness required prejudice to be reviewable (it did):
[30] It is also the case that a breach of procedural fairness alone does not constitute a reviewable error. Even where there is a breach of procedural fairness, the matter need only be returned to the decision-maker for reconsideration where the breach had an impact on the decision (Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 (Div. Ct.), para. 19). As recently confirmed by this Court, in Al-Kazely v. v. College of Physicians and Surgeons of Ontario, 2022 ONSC 44 (Div. Ct.), at paragraph 48:
Where a breach of procedural fairness has had no impact on the decision, the matter need not be returned to the decision-maker for reconsideration. As set out by the Federal Court of Appeal in Nagulathas v. Canada (Minister of Citizenship and Immigration), 2012 FC 1159, at para. 24; and the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 43), “Where there may be a breach of the rules of fairness, the court should assess whether the error ‘occasions no substantial wrong or miscarriage of justice’ …… The breach of procedural fairness must affect the outcome for the court to find a reviewable error”.
. Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario

In Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court held that where there was no prejudice caused by a breach of fairness [Khosa (SCC, 2009, para 43): where "the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice" (Khosa was a federal case)], then there was no remedy :
[47] There was procedural unfairness when the Applicant’s third rebuttal, dated November 1, 2019, was not provided to the ICRC panel. The College agrees with this finding. However, this was a minor breach of procedural fairness that had no impact on the final decision and that certainly does not warrant a finding of abuse of process.

[48] The Applicant has not cited any error in the ICRC Decision as a result of this breach and I can find no error in the Decision because of it. Where a breach of procedural fairness has had no impact on the decision, the matter need not be returned to the decision-maker for reconsideration. As set out by the Federal Court of Appeal in Nagulathas v. Canada (Minister of Citizenship and Immigration), 2012 FC 1159, at para. 24; and the Supreme Court of Canada in Canada (Minister of citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 43), “Where there may be a breach of the rules of fairness, the court should assess whether the error ‘occasions no substantial wrong or miscarriage of justice’ …… The breach of procedural fairness must affect the outcome for the court to find a reviewable error”.
. Girouard v. Canada (Attorney General)

In Girouard v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal commented on the administrative principle of procedural fairness:
[90] It is well established that the requirements of procedural fairness vary according to the requirements set out by Parliament itself and the procedural choices an administrative agency may make, particularly when the statute itself recognizes the agency’s ability to make its own procedures. It is true that how important a decision is to the affected person must also be taken into account. But, ultimately, what is most important is 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”": Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paragraph 22. See also: Therrien, at paragraphs 87–89; Moreau‑Bérubé, at paragraph 81.

....

[95] I am well aware of the line of decisions according to which any breach of the principles of procedural fairness, particularly of the right to be heard, must result in the incorrect decision being set aside, without regard to the effect the violation might have had on the decision: Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at paragraph 23; Université du Québec à Trois‑Rivières v. Larocque, 1993 CanLII 162 (SCC), [1993] 1 S.C.R. 471 at paragraphs 38–53. However, an exception must be made when the error committed by the administrative agency is not determinative and the result would have inevitably been the same if the violation had not occurred: Mobil Oil Canada Ltd. v. Canada‑Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202 at paragraphs 52–55. Many decisions of this Court are to the same effect: see, in particular, Cartier v. Canada (Attorney General), 2002 FCA 384, [2003] 2 F.C. 317, at paragraph 33; Robbins v. Canada (Attorney General), 2017 FCA 24; Canada (Minister of Public Safety and Emergency Preparedness) v. Cha, 2006 FCA 126, [2007] 1 F.C.R. 409; Stevens v. Conservative Party of Canada, 2005 FCA 383, [2006] 2 F.C.R. 315.



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