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Appeals - Standard of Review (SOR) - Fairness. Township of Oro-Medonte v. Oro-Medonte Association for Responsible STRS
In Township of Oro-Medonte v. Oro-Medonte Association for Responsible STRS (Div Court, 2024) the Divisional Court dismissed an appeal (filed with leave) of a ruling of the Ontario Land Tribunal (OLT), which itself repealed an amending bylaw to a municipality's zoning by-law. The issue of concern was "disruptive short-term rentals" (Airbnbs).
In this quote the court locates a breach of procedural fairness as an error of law:[28] A breach of the duty of procedural fairness is an error in law and can, therefore, be a basis to appeal a decision of the Tribunal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30. . Philosophe v. TSCC No. 2804
In Philosophe v. TSCC No. 2804 (Div Court, 2023) the Divisional Court considers an appeal [under s.1.46(2) of the Condominium Act] of "an order that held Mr. Philosophe and Mr. Micoli jointly and severally liable to pay $18,239.60 in compensation to the Corporation".
In this quote the court categorizes a procedural fairness error as an error of law:[13] Mr. Philosophe appeals the Tribunal’s order pursuant to s. 1.46(2) of the Condominium Act, which provides him with a right to appeal to the Divisional Court on a question of law.[1] A breach of procedural fairness amounts to an error of law. [Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 22; 2541005 Ontario Ltd. v. Oro-Medonte (Township), et al., 2023 ONSC 5569 (Div. Crt.), at para. 35; Abdi v. TD General Insurance Company, 2023 ONSC 3536, at para. 6; C.P. v. Certas Home and Auto Insurance Company, 2022 ONSC 5978 (Div. Crt), at para. 5.] . Law Society of Ontario v Schulz
In Law Society of Ontario v Schulz (Div Court, 2023) the Divisional Court held that the SOR on an appeal of a jurisdictional issue, where 'procedural fairness' was invoked, was correctness:[16] Because the LSO appeals a decision of the Appeal Division of the Tribunal, the appellate standards of review apply. Questions of law are reviewed on a correctness standard. A standard of palpable and overriding error applies to questions of fact and questions of mixed fact and law, unless there is an extricable question of law, which is reviewed for correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[17] The issue of the hearing panel’s jurisdiction to hear the LSO’s application, despite the lack of a lay adjudicator on the panel is a question of law or procedural fairness. As a result, a correctness standard applies. . Lacroix v. Central-McKinlay International Ltd.
In Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022) the Divisional Court affirmed that RTA s.210's appeal limitation to 'questions of law' covers procedural fairness, and that procedural fairness is assessed on an objective standard:[9] This court has jurisdiction over this appeal by virtue of s.210 of the Residential Tenancies Act, 2006, SO 2006, c.17, which provides for an appeal to this court from an LTB order solely on a question of law. Procedural unfairness is considered a question of law for the purposes of s.210.
[10] The standard of review for questions of procedural fairness is “fairness”, sometimes understood as “correctness”. The court determines whether fairness has been accorded to the appellant based on the events as they unfolded, basic principles of fairness as developed in the jurisprudence, and the tribunal’s own rules and procedures: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817; Peel Housing Cooperative o/a Peel Living v. Sharpe, 2017 ONSC 6303, per F.B. Fitzpatrick J. (Div. Ct.).
Fresh Evidence
[11] The tenant seeks to adduce as fresh evidence an affidavit setting out his internal thought processes at the hearing. We would not admit this fresh evidence for three reasons:(a) the proposed fresh evidence does not shed light on events at the hearing in a manner bearing on procedural fairness.
(b) the tenant’s internal thought processes are not relevant to an issue before this court. Procedural fairness is assessed on an objective standard. ... . Lengyel v. The Licence Appeal Tribunal et al.
In Lengyel v. The Licence Appeal Tribunal et al. (Div Court, 2023) the Divisional Court held that an appeal or judicial review for 'fairness' was conducted under the same standard, whether it was characterized as 'not having a standard of review' or 'correctness':[16] On allegations of procedural fairness in the context of a judicial review I adopt the comments of Sachs, J. in the matter of Khorsand v. Police Services Board 2023 ONSC 1270 at para. 33:In Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, the Supreme Court made the same finding with respect to applications for judicial review that raised issues of procedural fairness. Since Khela Ontario courts have been divided – some having applied the correctness standard of review to issues of procedural fairness and some having held that there is no need for a standard of review analysis when it comes to issues of procedural fairness – a decision is either procedurally fair or it is not. In my view, there is little practical difference between these articulations. A reviewing court does not accord deference to decisions that impact procedural fairness. . Watson v. Canadian Union of Public Employees
In Watson v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal commented on the interaction of administrative fairness law with standards of review, here in a JR application:[17] When assessing general issues of procedural fairness, the Court is to ask whether the proceedings were fair in all of the circumstances (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at paras. 54-56 [Canadian Pacific]). As explained in Canadian Pacific, the concept of a standard of review is ill-fitted to assessments of procedural fairness. A proceeding is either fair or it is not, a test that is otherwise best described or captured as a correctness standard. When reviewing the Board’s decision not to hold an oral hearing under section 16.1 of the Code, this Court may only intervene where the decision to proceed on the basis of the written record did not allow a party to fully assert their rights or to know the evidence that they must refute (Ducharme c. Air Transat A.T. Inc., 2021 CAF 34, [2021] A.C.F. No. 173 (QL) at para. 19 [Ducharme]).
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