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Appeal-Judicial Review - Fairness - Prompt Objection Required. 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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