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Fairness - Baker - Choice of Procedure. Kaplan-Myrth v. Ottawa Carlton District School Board
In Kaplan-Myrth v. Ottawa Carlton District School Board (Div Court, 2024) the Divisional Court dismissed a school board trustee's JR against a school board.
The court considers a 'fairness' argument, here on the Baker element of 'choice of procedure':i) Was the process structurally unfair?
[74] While the Act requires that a board enact a code of conduct, it does not prescribe the standards or content. The legislature intended for conduct issues to fall within a board’s authority, which enables a board to act in a flexible and dynamic manner, responsive to the community it serves: Del Grande, at para. 53.
[75] As articulated by the Supreme Court of Canada in Baker, at para. 23, the nature of the decision and the process followed in making the decision are factors to be considered when determining what is required to meet the duty of procedural fairness in a particular case. However, as set out at para. 27 of Baker, considerable weight must be given to the choice of procedures made by the agency itself and its institutional constraints when assessing the requirements of procedural fairness, particularly when the statute leaves the decision-maker the ability to choose its own procedures, as is the case here. . Faruk v. The Landlord and Tenant Board
In Faruk v. The Landlord and Tenant Board (Div Court, 2023) the Divisional Court considered a judicial review (not a RTA s.210 appeal, which would be more usual), grounded in administrative fairness and abuse of process, of interrupted RTA proceedings where the LTB member had resigned before the hearing was completed and the LTB ordered a de novo hearing. The substantive issues were COVID-era arrears of rent and s.83 relief form eviction.
In this quote the court considers the 'choice of procedures' Baker fairness factor:[55] The difficulty with the submission made on behalf of the Landlord and Tenant Board is that it is founded on the idea that the decision to start again is administrative in nature, related only “to the scheduling of hearings and how the LTB manages its adjudicative resources”[52] As such it is said that it lies within the authority of the Board to control its own process.[53] On this basis it is submitted that the Landlord and Tenant Board is not required to provide an explanation or reasons for its determination to begin again. This submission taken to its logical albeit extreme end, suggests that the Landlord and Tenant Board without explanation could stop any of its proceedings and require the parties to begin again. As it is, while everyone assumes that the reason for the de novo proceeding is the member’s departure, no one actually knows. The notices issued by the Landlord and Tenant Board on March 30, 2022 indicates that the de novo proceeding “means the hearing will start fresh with a new member” (see fn. 44 above) but they do not say why the process has to begin again. Could there be another reason? Only the Landlord and Tenant Board knows but the tenants were at some pains to point out to a similar decision made by the same member before his departure:The Goodwood Tenants, like the tenants here, received favorable interim orders from Member Whitmore, including orders agreeing that the proceedings raised common issues of retaliation and should proceed collectively... Like the tenants here, Member Whitmore also failed to provide the Goodwood Tenants with decisions and orders for motions before him. However, unlike the Tenants here, the Board has scheduled the Goodwood Tenants’ hearings for July 25th, and has not stated that they will proceed de novo. Based on the Board’s direction to date, it appears that, Goodwood tenants do not need to relitigate their case and member Whitmore’s prior decisions stand.[54] [56] Unlike the Notices delivered, in this case on March 30, 2022 (see fn. 36) the Notice in Goodwood states:The hearing to consider the landlord’s application was not completed and the hearing was adjourned. Another date has been scheduled to continue the hearing at the time and date set out below.[55]
[Emphasis in the original] [57] If the reason for the de novo hearing is the departure of the member one has to wonder why the decision in the Goodwood case is different.
[58] As it is, and contrary to the submission made on behalf of the Landlord and Tenant Board, the decision to hold a de novo hearing was not purely administrative. It had a real and substantive impact, particularly on those tenants who were members of the Crescent Town Tenants’ Union, and who made repayment proposals to the landlord. For those people, the applications to evict were to be dismissed. If the decision of the Landlord and Tenant Board to proceed with a de novo hearing is sustained, they will have to start again. I point out that the initial response of the landlord to the departure of the Board member expressed concern for the prejudice a de novo hearing would cause to both the landlord and the tenants (see fn. 42 above).
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