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Fairness - Baker Factors - Statutory Scheme. International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association
In International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association (Fed CA, 2024) the Federal Court of Appeal dismissed (as moot) a federal labour JR, here against a ruling of the Canada Industrial Relations Board (CIRB) that held that "ILWU Canada [had] engaged in an unlawful strike".
Here the court considers the Baker element of 'statutory scheme', here cited from Vavilov:[80] As concerns the second type of defect, focussed on the nature of the result reached by the decision-maker, the majority noted in Vavilov that several contextual factors may constrain a decision-maker. Those mentioned in Vavilov that are alleged to be relevant to the instant case are the governing statutory scheme and its legislative history, previous case law from the CIRB and other labour relations boards that interprets similar or related provisions, and jurisprudence on the right to strike and freedom of association as guaranteed by section 2(d) of the Charter.
[81] In terms of the statutory scheme, the majority in Vavilov held that, while administrative decision-makers are not required to engage in a formalistic statutory interpretation exercise similar to the one undertaken by courts, administrative decision-makers’ interpretations must nonetheless be consistent with the text, context, and purpose of the statutory provisions that bear upon their decisions. In addition, according to the majority in Vavilov, in some cases, it may be clear that "“the interplay of text, context and purpose leaves room for [only] a single interpretation”" (at para. 124). In its subsequent decision in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, the Supreme Court applied this reasoning and held that the statutory provisions in question in that case could only be interpreted in the way the Supreme Court held they were to be read. It therefore overturned the decision of the administrative decision-maker that had interpreted the statutory provisions differently. As will soon be seen, ILWU Canada urges us to adopt a similar approach in this case. . Mirza et al. v. Law Society of Ontario
In Mirza et al. v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered a JR by candidates for "barristers and solicitors licensing exams" where 'cheating keys' had been leaked. Subsequently:[4] ... after receiving written submissions but without holding a hearing, the LSO licensing department concluded that the Applicants had engaged in “prohibited actions” by making “a false or misleading representation or declaration.” The LSO decided to void the Applicants’ exam results and, for all Applicants other than Ms. Subramaniam, their registration in the licensing process. The LSO further disqualified the Applicants, for one year, from re-applying to the licensing process. In these quotes, the court conducts the 'statutory scheme' portion of the Baker procedural fairness consideration of the LSO's applying punitive administrative sanctions, and their associated failure to hold an hearing:[10] For the reasons that follow, we find that it was reasonable and did not violate procedural fairness for the LSO to void the Applicants’ exam results as an administrative measure. However, the further sanctions imposed by the LSO substantially impacted the Applicants to the point of being punitive. It was a violation of procedural fairness to impose that level of consequence without holding a hearing or reaching a determination that the Applicants had engaged in intentional misconduct. On the issue of remedy, we quash the LSO’s decisions other than the voiding of exam results and remit these matters to the LSO to determine next steps in accordance with these reasons.
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a. Factors one and two - Statutory context and whether the process followed a judicial model
[23] Our analysis begins with a discussion of whether the process followed a judicial model, combined with a discussion of the statutory context, since those factors are intertwined in this case.
[24] The LSO submits that the process was not quasi-judicial, nor did it need to be since there was no finding that the Applicants were not of good character. We agree that the process followed was not quasi-judicial, but, in view of the statutory context, it should have been.
[25] Section 27 of the Law Society Act, R.S.O. 1990, c. L.8 (the “Act”) requires that a hearing be held before an application for a licence is refused because the applicant is not “of good character.” Specifically, s. 27(2) sets out the good character requirement, providing: “It is a requirement for the issuance of every licence under this Act that the applicant be of good character.” Subsection 27(4) requires that a hearing be held before an application for a licence may be refused: “An application for a licence may be refused only after a hearing by the Hearing Division, on referral of the matter by the Society to the Tribunal.”
[26] This provision supports the Applicants’ entitlement to a hearing before the LSO was authorized to void their registration. Although the LSO did not directly “refuse” their applications for a licence, it voided their registration after they had applied for a licence and completed most of the steps in the application process, including the experiential training, culminating in having written their barristers and solicitors’ exams. Caselaw from the Tribunal confirms that when the LSO does not accept that a candidate is of good character, a hearing must be held: Law Society of Upper Canada v. Sharon Ellen Shore, 2008 ONLSAP 6, [2008] L.S.D.D. No. 41, at para. 7, aff’d (2009), 2009 CanLII 18300 (ON SCDC), 96 O.R. (3d) 450 (Div. Ct.).
[27] We accept the Applicants’ contention that the reason the LSO voided their registration in the licencing process was due to a concern about their “good character.” The LSO denies this, stating that it did not assess the Applicants’ good character during what was an administrative process and that the by-laws it relied on did not require a determination of knowledge or intention.
[28] There are several problems with this argument. First, although the LSO’s review decision stated that the licensing department had not assessed the Applicants’ good character, this was a reversal of the LSO’s position at the outset of the investigation. The LSO retained outside counsel to assist with the investigations. In an initial letter to each of the Applicants, counsel wrote that “the LSO has authorized an investigation into your character pursuant to s. 27(2) of the [Act] and by-law 4.”
[29] In the licensing department’s initial decision letter dated July 14, 2022, which concluded that the Applicants had engaged in “prohibited actions” the LSO explained that By-law 4 “provides that a licensing applicant’s good character is one of the requirements for the issuance of a licence under the Act.” At the conclusion of that letter, the LSO stated that, among other outcomes, it was considering referring the candidate’s application to the Hearing Division of the Law Society Tribunal for a hearing into whether they are of good character under s. 27(4).
[30] Second, the LSO relied specifically on two provisions of By-law 4, both of which authorize it to take steps because of a “false or misleading representation or declaration.” Subsection 14(2) of By-law 4 permits the LSO to void a licensing examination. It provides:14(2) A person who makes any false or misleading representation or declaration on or in connection with an examination application, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for taking a licensing examination and, subject to subsection (3), the successful completion of any licensing examination taken by the person is deemed thereafter to be void. [31] Subsection 18(2) of By-law 4 permits the LSO to void a candidate’s registration for licensure as follows:A person who makes any false or misleading representation or declaration on or in connection with registration, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for registration, the person’s registration is deemed thereafter to be void, the successful completion of any licensing examination taken by the person is deemed thereafter to be void, the successful completion of any professional conduct course conducted by the Society taken by the person is deemed thereafter to be void and any service under articles of clerkship is deemed thereafter to be void. [32] While the LSO claims it can make findings of a “false or misleading representation or declaration” without finding willful conduct, in its July 14, 2022 decision letter, it relied on “licensing dishonesty” in its Licensing Process Policies, to justify the finding that the Applicants had engaged in prohibited actions. Those policies prohibit candidates from engaging in “conduct unbecoming a candidate” including “licensing dishonesty.” Licensing dishonesty means “engaging in any form of dishonesty, including fraud, cheating, or misrepresentation”: Licensing Process Policies, s.13.11. It includes being in possession of or using unauthorized information or materials prior to or during a licensing examination. While the definition does not expressly say the misconduct must be willful, the overall context of engaging in “dishonesty” impliesadvertence.
[33] The case law from the Law Society Tribunal similarly concludes that advertence is necessary, at least when the LSO is contemplating disqualifying an applicant from obtaining a licence. In Howard Steven Levenson v. Law Society of Upper Canada, 2009 ONLSHP 98, a hearing panel of the Tribunal considered s. 8(2) of By-law 4, which also includes a deeming provision but in relation to a false or misleading representation in connection with an application for a licence. The hearing panel noted s. 8(2) was similar to the deeming provisions in ss. 14 and 18. At paras. 92-93, the hearing panel found the deeming provision could not be interpreted to capture inadvertent conduct:In our view, s. 8(2) cannot be interpreted so as to automatically disqualify an applicant from being issued a licence when his or her application is, in some respect, inaccurate, regardless of whether the inaccuracy is inadvertent. That would be fundamentally unfair in the extreme. Nor does its plain meaning compel such an interpretation.
This subsection is designed to capture those situations in which an applicant is deliberately misleading in his or her application or in connection with it. [34] In Law Society of Upper Canada v. Robert Allen Stewart, 2012 ONLSAP 30, a Tribunal appeal panel agreed with the interpretation in Levenson saying, at para. 29, that this interpretation “confines the reach of subsection 8(2) to conduct – deliberate falsehoods – that undeniably undermines the assertion of good character.” It went on to conclude, at para. 30: “Since the hearing panel found that Mr. Stewart’s alleged misrepresentations were not deliberate, it was correct in not applying s. 8(2) so as to automatically disqualify Mr. Stewart from admission.”
[35] In short, when the LSO seeks to cancel a candidate’s registration due to a false or misleading representation after they have completed their exams, the LSO has effectively refused to licence them due to concerns about their good character. As such s.27(4) of the Act requires a hearing.
[36] The conclusion that a hearing would be required is consistent with the general principles of procedural fairness stated in Khan v. University of Ottawa (1997), 1997 CanLII 941 (ON CA), 34 O.R. (3d) 535 (C.A.). The Court of Appeal found that a student had been denied procedural fairness with respect to her appeal from a failing grade on a law school exam. Although many academic appeals would not require an oral hearing, what distinguished this case was that the central issue related to the student’s honesty about whether she had completed an additional exam booklet. The court concluded that the examinations committee should not have judged her credibility adversely without affording her an in-person hearing.
[37] Similarly, the Applicants were entitled to a hearing if the LSO intended to impose punitive consequences such as voiding their registration and imposing what it termed a “regulatory sanction”. This could only be done after a finding of advertent misconduct.
[38] The LSO submits that it was not required to hold a hearing because of s. 1(3) of the Act, which provides that a hearing is not required before making any decision unless the Act, regulations or by-laws specifically require a hearing. We agree that the LSO would not have been required to hold a hearing if it had limited its response to non-punitive consequences, such as voiding the exam and allowing the Applicants to re-write it at the next opportunity. However, the LSO was not entitled to void the Applicants’ registration and treat the consequence as a regulatory sanction without a finding of fault and a hearing held pursuant to s. 27(4) of the Act.
[39] The LSO also maintains that it was entitled to take the steps it did to ensure the integrity of the licensing process and pursuant to its duty to protect the public interest. There is no dispute that the LSO has a duty to protect the public interest, as set out in s. 4.2(3) of the Act. We also agree it was important for the LSO to ensure the integrity of the examination process. To that extent, it was reasonable, as set out above, for the LSO to void the exam results and require the Applicants to rewrite.
[40] We conclude that before voiding the Applicants’ registration, which included voiding the successful completion of exams that had not been compromised and experiential learning and any exemption from that requirement, the Act required the LSO to hold a hearing. The LSO was permitted to void the compromised examination results, with an associated opportunity to rewrite the exam, without the need for a hearing. . Abara v. Hall and Lee
In Abara v. Hall and Lee (Div Court, 2022) the Divisional Court considers the 'statutory scheme' Baker factor for administrative fairness, here finding that the LTB had truncated a normally 'high-volume tribunal' hearing to the prejudice of the LL:[30] In determining whether the standards of procedural fairness had been met, Baker v. Canada (Minister of Citizenship & Immigration).5F[6] enunciated a non-exhaustive list of five factors:(1) the nature of the decision being made and the process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or the individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself. [31] As set out above, the statutory scheme is relevant. Section 183 of the RTA requires the LTB to utilize “the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.” The LTB is a high-volume tribunal with limited time allocation for hearings.
[32] In this case, even though these applications are normally done in writing, the LTB directed an oral hearing lasting 15 minutes since the positions of the tenants differed.
[33] The transcript of the hearing shows the Member did not provide the appellant with the opportunity to put forth his full argument specifically dealing with the date of termination, which would have an impact on the request for compensation even though that needed to be addressed in a different process. The hearing lasted no more than 3-5 minutes. The appellant was interrupted numerous times. Without permitting any submissions from the appellant on termination date, the Member determined that the termination date was September 15, 2021. Although no compensation was available in that specific application, the date may have an impact on the entitlement to compensation through other processes.
[34] On review, Member Mulima recognized there was a concern with regard to the issue of the termination date and the appellant’s request for compensation. At paragraph 8, Member Mulima stated:The Landlord argues that the termination date should have been determined to be July 31, 2021, therefore granting him an “overholding penalty” for rent after that date to the date the Tenants vacated the rental unit. As set out below, the Residential Tenancies Act, 2006 (‘Act’) does not permit such a penalty and as a result, there is no prejudice to the Landlord, and no material impact on the outcome of the case, in the Member determining the tenancy terminated on the date the Tenants granted vacant possession of the rental unit to the Landlord. [35] The difficulty I have with this conclusion by Member Mulima is that it does not recognize that there could be other consequences to the date of termination. The transcript is clear that the appellant was not given any opportunity to make any submissions on the date of termination. Though there was written material put forth at the hearing, the Member determined that there was no jurisdiction for the compensation claim and ended the hearing on that issue, yet still made a finding about the date of termination.
[36] The compensation claims of the appellant encompassed various claims including overholding from July 2021 and costs for the tenant not returning the key. The characterization by Member Mulima that the claim was for an “overholding penalty” highlights that there was no opportunity for submissions on the substance of the appellant’s claim and no hearing on the date of termination. The conclusion that the appellant did not suffer “prejudice” is not borne out by the record.
[37] The appellant, in my view, was entitled to a fair opportunity to make submissions about the date of termination and was not provided that opportunity. I do recognize that the LTB is a high-volume tribunal. But for the LTB to conclude on a significant finding—the termination date of the lease—without providing the appellant with the opportunity to address that issue, was, in the circumstances of this case, a breach of procedural fairness.
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