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Appeal-Judicial Review - Fairness - Prompt Objection Required. Milner v. Canada (Attorney General)
In Milner v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers the administrative procedural fairness principle that fairness issues must be raised promptly:[34] Before this Court, Ms. Milner raises two new arguments of procedural fairness. First, she claims that she was treated unfairly on the basis that the same member decided all three appeal decisions. She also raises this argument in her application for judicial review in Court file number A-16-21. Second, she contends that she was treated unfairly because the GD member allowed the Minister’s representative to ask her questions about privileged conversations she had with her lawyer. The GD member did advise her that these conversations were privileged and that she did not need to disclose that information, but only after she provided two preliminary answers and she was put in the difficult position to either answer the questions or be seen to avoid the questions.
[35] I agree with the respondent that an alleged breach of procedural fairness must be raised at the earliest practicable opportunity: Hennessey v. Canada, 2016 FCA 180 at para. 21; Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para. 220, aff’d 2007 FCA 199, leave to appeal to the Supreme Court refused, 2007 CanLII 55337 (S.C.C.); Mohammadian v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17118 (FC), [2000] 3 F.C. 371 at para. 25 (Fed. T.D.). Ms. Milner knew that the same member presided over her case three times, yet did not raise any concern or object that it was improper for the member to preside until her appeals were dismissed. Similarly, she knew that she had been asked questions about conversations she had with her lawyer during the last GD hearing, yet she did not raise that argument before the AD. Moreover, she was advised by the GD member that the questions about her conversations with her lawyer were privileged, but nevertheless answered the questions and told the member that she did not mind discussing those conversations. It is therefore too late to argue that her right to procedural fairness has been breached.
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[42] Finally, Ms. Milner submits that the AD incorrectly found that the GD did not breach her right to procedural fairness by holding a videoconference hearing. More specifically, she argues that if the hearing had been in person, the GD could have noticed that she was not well. Once again, this argument is without merit. First of all, as noted by the AD, Ms. Milner never insisted on an in-person hearing before the GD; on the contrary, she indicated in writing that she preferred to proceed either by videoconference or by personal appearance. The AD therefore correctly determined that the GD did nothing more than agree to one of Ms. Milner’s stated preferences. Moreover, there is no indication that Ms. Milner insisted on an in-person hearing before the GD. Finally, the AD was correct in pointing out that she was represented by counsel before the GD; since lawyers are presumed to act in accordance with their client’s instructions and best interests, the GD was justified to assume that she was ready to proceed in the absence of any request for a postponement or adjournment before or during the hearing. . Khan v Allstate Insurance Company
In Khan v Allstate Insurance Company (Div Court, 2023) the Divisional Court considered an appeal from a LAT SABS auto insurance ruling "that the Appellant was not catastrophically impaired due to mental behavioural impairments". In these quotes the court considered a 'fairness' issue, that being the advancement of fresh law at the tribunal appeal stage rather than first at the purely administrative decision notice stage:[22] According to the Appellant, raising a new issue for the first time at the hearing of the appeal ran contrary to the LAT rules and to the provisions of the SABS that require an insurer to be specific about its reasons for denying an insured’s CAT claim. The purpose of both is to ensure that the insured can make an informed decision about whether to appeal that denial and to ensure that the insured can adequately prepare and present its case at the appeal of that denial. Both the SABS (which is consumer protection legislation) and the common law rules of procedural fairness require that a person be given proper notice of the case they have to meet.
[23] The problem with this submission is that no objection was made when the insurer’s counsel made his opening statement; no objection was made before the Appellant began to present his evidence; and no objection or concern was raised at any other point during the hearing, including during the six-month period from August 2021 to February 2022 when the hearing was adjourned. The Appellant (who was represented by counsel at the hearing) acknowledges that the procedural fairness issue was never raised by him during the hearing and is being raised by him for the first time on appeal.
[24] As stated by the Court of Appeal for Ontario in Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81 at para. 75:It is trite law that appellate courts are not to entertain any new issues except in very limited circumstances. [25] Where the issue is one that relates to procedural fairness, it is particularly important that the issue be raised before the tribunal hearing the matter at first instance. That tribunal is in a position to listen to the submissions, and, if they have merit, grant a remedy that would allow the defect to be cured. The detrimental impact to the administration of justice if a procedural fairness issue is not raised before the tribunal who can do something to correct the unfairness is obvious—the injured party pursues an appeal before a different tribunal, which then may result in the holding of a second hearing. This in turn drastically increases the costs to the parties, results in delay, and demands the use of already scarce judicial and quasi-judicial resources.
[26] The Appellant’s reasons for not raising the issue before the LAT are twofold. First, it never occurred to the Appellant that the LAT would actually make a decision on the basis of an issue that had not been raised before the appeal and second, even if his concerns had been raised, the LAT would not have done anything to correct the problem.
[27] To accept either of these submissions as a reason for entertaining the Appellant’s argument on procedural fairness would be to say that the high threshold for hearing arguments that are raised for the first time on appeal can be met on the basis of speculation and assumptions. In spite of the insurer’s clearly articulated position during the appeal hearing, the Appellant assumed that the LAT would not give effect to the insurer’s arguments based on his unarticulated concern about procedural fairness. The Appellant also failed to raise his concern because of his speculation that the LAT would not give any weight to his concern. However, his failure to raise this concern before the LAT deprived this court of the evidence necessary to establish how the LAT would in fact have dealt with the concern. . Chin v. Canada
In Chin v. Canada (Fed CA, 2021) the Federal Court of Appeal noted that procedural fairness issues should not be raised on an appeal unless first raised by objection below:[5] In oral argument, the appellant submits that the Federal Court "“exuded hostility”". We see no evidence of this. In fact, the Federal Court’s conduct described in the last paragraph suggests this is not correct. In any event, if this sort of procedural unfairness were so, it was incumbent on the appellant to register an objection with the Federal Court then and there: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488. . Pacific Northwest Raptors Ltd. v. Canada (Attorney General)
In Pacific Northwest Raptors Ltd. v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal noted that a fairness issue must be raised promptly before the tribunal:[36] As noted by this Court in Ahousaht First Nation v. Canada (Indian Affairs and Northern Development), 2021 FCA 135, at paragraph 39:... [t]he jurisprudence is well settled that an allegation of a violation of procedural fairness must be raised at the earliest practical opportunity: Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 455 N.R. 115 at para. 67; Hennessey v. Canada, 2016 FCA 180, 484 N.R. 77 at para. 20; Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, 32 C.E.L.R. (4th) 18 at paras. 47-48. . Cyr v. Batchewana First Nation of Ojibways
In Cyr v. Batchewana First Nation of Ojibways (Fed CA, 2022) the Federal Court of Appeal held that a procedural fairness issue must have been raised before the tribunal below:[70] Allegations of procedural fairness, such as allegations of bias, must be raised to the decision-maker before they can be entertained by this Court (Nicole L. Tiessen Interior Design LTD. v. Canada, 2022 FCA 53, citing Athey v. Leonati 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 at paras. 51-52 and Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 at paras. 36-39). ... . Ahousaht First Nation v. Canada (Indian Affairs and Northern Development)
In Ahousaht First Nation v. Canada (Indian Affairs and Northern Development) (Fed CA, 2021) the Federal Court of Appeal made the point that issues of lack of procedural fairness must be raised promptly:[39] I note first that the Ahousaht have pointed to nothing to indicate that they expressed any concerns before the SCT that the late replacement of the hearing judge would give rise to procedural unfairness. The jurisprudence is well settled that an allegation of a violation of procedural fairness must be raised at the earliest practical opportunity: Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 455 N.R. 115 at para. 67; Hennessey v. Canada, 2016 FCA 180, 484 N.R. 77 at para. 20; Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, 32 C.E.L.R. (4th) 18 at paras. 47-48. In my view, the Ahousaht failed in this respect. The concerns they expressed before Chairperson Slade about the replacement of Justice Whelan appear to have been more with regard to the efficiency of the process. They did not mention procedural fairness. If the Ahousaht had concerns about procedural fairness, they should have stated them explicitly when their other concerns were discussed. . Shoan v. Canada (Attorney General)
In Shoan v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal commented that complaints of procedural fairness must be raised promptly when they occur in the administrative process, or else they cannot be raised later at appeal (or judicial review):[7] We would add that a number of the appellant’s procedural fairness concerns were not raised with the Governor in Council and, thus, he cannot raise them on judicial review: see, e.g., Irving Shipbuilding Inc. v. Canada (A.G.), 2009 FCA 116, [2010] 2 F.C.R. 488; Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 167 at paras. 67-68. If the appellant was concerned that he was not being treated fairly, it was incumbent on him to raise a concern promptly. The record shows that he was not shy in raising concerns when need be.
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