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Fairness - SOR (2). Jagadeesh v. Canadian Imperial Bank of Commerce [interesting]
In Jagadeesh v. Canadian Imperial Bank of Commerce (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of a Canadian Human Rights Commission's dismissal of the appellant's complaint.
The court considers the SOR for procedural fairness as one of 'correctness':C. The Alleged Unfairness of the Commission Process
[53] Mr. Jagadeesh has made numerous arguments with respect to the alleged unfairness of the Commission investigation process in dealing with his human rights complaint. To the extent that Mr. Jagadeesh’s arguments raise questions of procedural fairness, the Court must examine the process followed by the Commission, and determine for itself whether that process satisfied the level of fairness required in all of the circumstances. In other words, we must in effect apply the correctness standard of review: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, paras. 44-56; see also Girouard v. Canada (Attorney General), 2020 FCA 129 at para. 38. . 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.
Here the court re-states a recent fairness standard of review JR exception (from correctness to reasonableness) where the error is one of fact (Corbett was on the 3-judge panel):[35] The standard of review for questions of procedural fairness is “fairness” or “correctness” (see Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 and Zarei v. Afsharian 2023 ONSC 5317, para. 2). Findings of fact are reviewed on a standard of reasonableness, and this principle applies to factual findings related to procedural fairness issues. However, the requirements of procedural fairness, in light of the facts, as found, are assessed on a “correctness” or “fairness” standard (see Blackstone Paving v. Barrie (City of), 2024 ONSC 4556, at para. 4 ). . Blackstone Paving and Construction Ltd. v. Barrie (City of)
In Blackstone Paving and Construction Ltd. v. Barrie (City of) (Div Court, 2024) the Divisional Court dismissed a Construction Act JR of a 'prompt payment' adjudication.
The court considers the SOR for 'fairness' (here 'statutory' fairness under the Construction Act), and the novel factual fairness SOR (here, Corbett J) that 'reasonableness' applies to "factual findings related to procedural fairness issues" in a JR:Standard of Review
[3] The statutory test for procedural fairness is conjunctive, and is set out in s.13.18(5) of the Act:a. The first question is whether the procedures followed in the adjudication accord with the procedures to which the adjudication was subject under the applicable Part of the Act.
b. If the answer to this question is “no” then the second question is whether the failure to follow the prescribed procedures prejudiced the applicant’s right to a fair adjudication. [4] The standard of review for questions of procedural fairness is “fairness” or “correctness” (see Law Society of Saskatchewan v. Abrametz, 2022 SCC 29). Findings of fact are reviewed on a standard of reasonableness, and this principle applies to factual findings related to procedural fairness issues. However, the requirements of procedural fairness, in light of the facts, as found, are assessed on a “correctness” or “fairness” standard, applying the statutory test set out in s.13.18(5) of the Act. . Shahin v. Intact Insurance Company
In Shahin v. Intact Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the appellant applied for 'catastrophic impairment' accident benefits which were denied by the insurer.
Here the court considered the SOR for issues of procedural fairness:[8] Appellate standards of review apply to questions of procedural fairness in a statutory appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at para. 27. For questions of law, the standard of review is correctness: Abrametz, at para. 30. However, courts will accord deference to a tribunal’s procedural choices given the tribunal’s authority to control its own process, so long as the requirements of procedural fairness are met: Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 231; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 27. . 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.] . Amer v. Shaw Communications Canada Inc.
In Amer v. Shaw Communications Canada Inc. (Fed CA, 2023) the Federal Court of Appeal considered (and allowed) an appeal of a successful JR against a federal labour arbitrator's decision "under Division XIV of Part III of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code)" (which found unjust termination).
In these quotes, the court adopts an earlier modification of the SOR for procedural fairness, which I first saw in the Ontario Divisional Court in Zarei v. Afsharian (Div Court, 2023):[50] In the case at bar, the deferential reasonableness standard applies to all issues except procedural fairness: Wilson at para. 15; Northern Inter-Tribal Health Authority Inc. v. Yang, 2023 FCA 47 (CanLII), 2023 A.C.W.S. 895 at para. 49; Canada (Attorney General) v. Allard, 2018 FCA 85 (CanLII), 293 A.C.W.S. (3d) 398 at para. 24; Riverin v. Conseil des Innus de Pessamit, 2019 FCA 68 (CanLII), 305 A.C.W.S. (3d) 551 at para. 18.
[51] On issues of procedural fairness, no deference is owed, and it is for the reviewing court to determine whether there has been a procedural fairness violation: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 (CanLII), [2019] 1 F.C.R. 121 at para. 36; Watson v. Canadian Union of Public Employees, 2023 FCA 48, [2023] F.C.J. No 280 (QL) at para. 17; Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93 (CanLII), 2023 CarswellNat 1299 at para. 81.
[52] That said, where the Federal Court makes its own factual determinations in reaching a procedural fairness conclusion, such determinations are reviewable by this Court under the normal appellate standard of review and are thus subject to being set aside only for palpable and overriding error: Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131 (CanLII), [2018] F.C.J. No. 700 (QL) at paras. 37, 40. . O’Shanter Development Company Ltd. v. Adai et al
In O’Shanter Development Company Ltd. v. Adai et al (Div Court, 2023) the Divisional Court endorses recent case law (Zarei) that holds that the appellate SOR of 'correctness' is implicitly restricted - in the case of procedural fairness issues - to "matters of legal standards", essentially abolishing the post-Vavilov SOR of correctness (or 'no standard') for procedural fairness issues:[17] Issues of procedural fairness arising from tribunal decisions where there is a statutory appeal mechanism are subject to the appellate standard of review of correctness (Law Society of Saskatchewan v. Abrametz, 2022 SCC, 29). I also note the Ontario Divisional Court decision in Zarei v. Afsharian, 2023 ONSC 5317 (Div. Ct.), at para. 2, which indicates that issues of procedural fairness, where there are matters of legal standards, are also decided on a standard of correctness.
....
[36] The facts before me involving the allegation that a party did not receive notice of a hearing are similar to those considered by the Ontario Divisional Court in Zarei v. Afsharian, 2023 ONSC 5317, in which Corbett J. states at paragraph 3:3) The primary issue raised by the appellants is a question of procedural fairness – they say that they did not receive notice and thus did not have an opportunity to participate in the hearing. A question of procedural fairness is reviewed in this court on a standard of correctness. However, in this case the issue of procedural fairness raised by the appellants turns solely on a finding of fact by the Board: the Board found that the appellants received notice of the hearing. Given that finding, which is not subject to appeal in this court, no issue of procedural fairness arises, and for this reason the appeal must be dismissed. [37] As in Zarei, the case before me involves an appeal of a finding of fact made by the Board that the Landlord had received notice of the hearing in writing. I do not have jurisdiction to interfere with this finding. . Finn v. Highland Shores Children’s Aid Society
In Finn v. Highland Shores Children’s Aid Society (Div Court, 2023) the Divisional Court considered the SOR for procedural fairness, here in a JR context:Duty of Procedural Fairness
[21] There is no standard of review for issues of procedural fairness on judicial review. The reviewing court must evaluate whether the decision-maker adhered to the duty of procedural fairness by (a) assessing the specific circumstances giving rise to the allegation and (b) determining what procedures and safeguards were required to comply with the duty.
[22] As the Court observed in Chapman v. York Region Children’s Aid Society, 2021 ONSC 2620 (Div. Ct.) at para. 40:The objective of the common law duty of procedural fairness is to provide participatory rights appropriate to the administrative decision being made (Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC 699, at para. 22.) The content of the duty is contextual, as the content of the right of participation varies with such factors as the nature of the decision, the statutory scheme, the importance of the decision to an individual, legitimate expectations about procedure, and the choices of procedure made by the decision-maker (Baker, at paras. 21-28.) . Zarei v. Afsharian
In Zarei v. Afsharian (Div Court, 2023) the Divisional Court considered (and dismissed) an RTA landlord's appeal, here where the court dismissed a procedural fairness argument solely on the grounds that it involved a pure fact issue. The court reasoned that under RTA s.210 the Divisional Court only had appellate jurisdiction over 'questions of law' - even though it expressly acknowledged that the SOR for fairness was 'correctness'.
The case raises what I think are novel issues as - prior to it - the court did not defer to the tribunal below at all, taking the view that procedural fairness issues are themselves legal issues, not being entitled to any deference on an appeal [Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022), para 9; Lengyel v. The Licence Appeal Tribunal et al. (Div Court, 2023), para 16; Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021), para 18]:[2] An appeal to this court from a decision of the LTB is available but only in respect to questions of law: Residential Tenancies Act, 2006, SO 2006, c. 17, s.210. The standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Issues of procedural fairness – where they are matters of legal standards – are likewise decided on a standard of correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.
[3] The primary issue raised by the appellants is a question of procedural fairness – they say that they did not receive notice and thus did not have an opportunity to participate in the hearing. A question of procedural fairness is reviewed in this court on a standard of correctness. However, in this case the issue of procedural fairness raised by the appellants turns solely on a finding of fact by the Board: the Board found that the appellants received notice of the hearing. Given that finding, which is not subject to appeal in this court, no issue of procedural fairness arises, and for this reason the appeal must be dismissed.
[4] Procedural fairness, and the LTB’s own practices and procedures, require that parties be given notice of a hearing. In this instance, notice was sent to Mr Zarei’s email address. In the request for reconsideration, the appellants argued that Mr Zarei did not receive the email until after the hearing had taken place. In its reconsideration decision, the LTB rejected Mr Zarei’s argument and found that he did receive the notice in a timely manner. This was a finding of fact, available to the LTB on the record before it on reconsideration, and this court has no jurisdiction to interfere with it. . Abdi v. TD General Insurance Company
In Abdi v. TD General Insurance Company (Div Court, 2023) the Divisional Court considered an auto insurance SABS LAT appeal on the issue of 'catastrophic impairment'. In this brief quote the court identifies a breach of procedural fairness as one of error of law [SS: appeals in this case were allowed only on 'questions of law': ss. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999]:[6] ... A breach of procedural fairness constitutes 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. . 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.
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