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Fairness - Baker - Basics (2). Shnier v. Begum
In Shnier v. Begum (Div Court, 2023) the Divisional Court considered an RTA eviction appeal where the issue was whether a contractual yearly renewal option prohibits the landlord from serving a personal possession termination on the annual renewal.
In these quotes the court considered an argument of LTB 'boilerplate reasons' as a matter of procedural fairness, here on a decision to decline a review (reconsideration):Did the Board in review deny the Appellant procedural fairness by issuing inadequate or “boilerplate” reasons for dismissing his request for a review?
[27] The Appellant sought a review of the Board’s decision, which under Rule 26.8(e) of the Landlord and Tenant Board, Rules of Procedure, September 1, 2021, need only establish a “serious error” made by the Board at first instance. He submits that the reasons rejecting his request for a review hearing were seriously deficient, amounting to cursory “boilerplate.”
[28] The reasons on review read as follows:ln the request, the Tenant makes several submissions rearguing their position and submitted case law in support of their position.
The Tenant identifies several points they believe to be errors in law. However, in my view, concerns identified by the Tenant in their request is in fact the Tenant rearguing their position, which should have been submitted at the hearing held on February 3,2022.
A request to review is not an opportunity for a party to re-litigate or reargue their position in hopes of a more favorable outcome. Nor is it an opportunity to present evidence and submissions that could and should have been presented at the hearing.
In the request to review, the Tenant does not identify any serious error in the order or in the Board's proceeding.
On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.
It is ordered that:
The request to review order TNL-34432-21 issued on February 7,2022, is denied. The order is confirmed and remains unchanged. [29] The application of the principles of procedural fairness to procedures adopted by a statutory tribunal benefit from considering the well-known Baker factors in the relevant context of the tribunal’s procedural options. Here, as a creature of statute, the Board is directed by the Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 183 as follows:183 The Board shall adopt 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. [30] The request to review followed a full hearing on the merits, at which the parties gave evidence, were able to cross-examine and test the evidence, and make submissions. They received written reasons from the Board on all of the matters in issue. The request to review came before a different Board member who provided reasons in writing. Those reasons revealed an awareness of the allegations of errors in law, case law in support and the reviewing Member’s conclusion that there were no errors of law, and that the arguments were an attempt to relitigate findings of the Board that had been made.
[31] Taking these procedural steps into account, and applying the Baker factors to the review stage, I conclude as follows: (1) the nature of the decision and the process followed in making it were aligned with fairness principles—the parties had the benefit of a full hearing prior to the review process and although the decision is an important one, the review took place as a secondary review, and not as a final potential step in the process. If there had been errors of law made by the Member at first instance, these are subject to correction on appeal;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates—s. 183 provides for expeditious methods which is aligned both with the importance of regulating rental housing which often affects vulnerable members of the population and is responsive to the high volume nature of the work of the Board. The review step achieves a balance and provides an intermediate level of oversight to the work of the Board conducting hearings, while ensuring that clear errors can be caught and corrected on a review hearing;
(3) the importance of the decision to the individual or the individuals affected—it is evident that housing is a critical factor in matters of health, well-being, stability and personal and community stability;
(4) the legitimate expectations of the person challenging the decision- the Board’s Rules allow for persons affected by its decisions to know the criteria and role of the review process; thus it can be said that the procedures adopted by the Board in conducting its reviews are not arbitrary and can create expectations that they will be carried out in accordance with its Rules. Here there is no suggestion that the Board did not carry out the review in accordance with its Rules and the reasons advert to the material put before the decision maker, who can be presumed to have read and considered them; and
(5) the choices of procedure made by the agency itself—the Board is an expert tribunal and is permitted by its statutory framework to make rules and procedures that are expeditious. This choice is reflected in the review process.
See Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras. 22-27. [33] I find that on balance, the reasons provided on review although general in nature, do not amount to a failure to provide responsive reasons, particularly in circumstances where the review is a written record and submissions. I conclude that the Appellant was not denied procedural fairness in the request to review the Board’s decision. . Berger v. Legal Aid Ontario
In Berger v. Legal Aid Ontario (Div Court, 2021) the Divisional Court walks the case facts through the main elements of the Baker test for fairness, here on a JR arguing that an oral hearing should have been provided (in a legal aid billing dispute and sanction proceeding):Content of the duty of procedural fairness
[46] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 22, the court held that the duty of fairness is "flexible" and "depends on an appreciation of the context of the particular statute and the rights affected." The purpose of the duty is to "ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision maker."
[47] The court then sets out, at paras. 23-27, a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether an oral hearing is required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3)the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) choices of procedure made by the administrative decision maker herself.
[48] The applicant argues that the process by which the decision maker reached her decision was procedurally unfair, that he was entitled to an oral hearing, and that the removal decision was tainted by unfair investigations. I disagree.
Nature of the decision to be made and the process followed in making it
[49] In Baker, at para. 23, the court held that: “[t]he more the process for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.”
[50] The applicant argues that in the present case, the nature of the decision being made more closely resembles judicial decision making than administrative decision making, because it requires a determination of whether there is reasonable cause for removal, and because his ability to earn a living and his professional reputation were in issue. I disagree.
[51] In my view, the decision being made was essentially administrative in nature. It flowed from LAO's statutory discretion to manage the provision of legal aid services in Ontario. In administering the provision of legal aid, LAO is granted the authority to create and manage panels of lawyers in private practice to provide legal services. Part of that management role includes the power to both add and remove lawyers from a panel in accordance with the process set out in sections 27-37 of the Regulation. Such decisions involve discretionary considerations related to the administration of LAO.
[52] The process for removal outlined in the Regulation requires only notice, the provision of a hearing (only upon request and without specifying whether oral or in writing), and the giving of a final decision that is not subject to appeal or reconsideration. This process is far more limited than the trial model.
Nature of the statutory scheme
[53] In Baker, at para. 24, the court held that the terms of the statute under which the decision maker operates help determine the content of the duty of fairness owed when a particular administrative decision is made. For example, greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.
[54] The applicant argues that because the removal decision is not subject to appeal or reconsideration, a high level of procedural protection is required. I agree that the absence of a right to an appeal or reconsideration suggests a higher level of procedural protection. However, also relevant to this determination is the fact that under s. 83(1) of the Act, LAO is not subject to the Statutory Powers Procedure Act, which suggests entitlement to a lower level of procedural protection.
Importance of the decision to the individual affected
[55] In Baker, at para. 25, the court held that the more important the decision is to the lives of those affected and the greater the impact on those persons, greater procedural protections will be required. The court quotes from its decision in Kane v. Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, at p. 1113: “A high standard of justice is required when the right to continue in one’s profession or employment is at stake …. A disciplinary suspension can have grave and permanent consequences upon a professional career.”
[56] The applicant argues that the removal decision threatens his livelihood and career as well as his professional reputation, and that as a result, stringent procedural protections were required.
[57] I agree that to the extent that his livelihood, career, and professional reputation were at stake, a higher level of procedural protection was required. However, while the removal decision will have a significant impact on his practice, this was not a disciplinary hearing and the removal of his name from the panel is in no way equivalent to a removal of his licence to practise.
Legitimate expectations of the person challenging the decision
[58] The doctrine of legitimate expectations “is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights”: Baker, at para. 26.
[59] The applicant argues that he had an expectation that his submissions would be heard and addressed by the investigators and the decision maker. I agree that he was entitled to expect his submissions to be heard and addressed by the decision maker. I find that they were. However, the applicant’s expectations with respect to the investigative process, as opposed to the removal hearing, is a separate consideration addressed below.
[60] In the present case, the only legitimate expectation that the applicant could have was that the statutory and regulatory scheme would be followed, as it was. There was no precedent for a different form of procedure upon which the applicant was entitled to rely.
Decision maker’s choice of procedure
[61] Where the statute leaves to the decision maker the ability to choose its own procedures, or where the decision maker has expertise in determining the appropriate procedures, its choice of procedure, while not determinative, is entitled to some deference: Baker, at para. 27.
[62] The applicant argues that while LAO has presumptively chosen to deal with removal decisions by way of a written hearing, there is nothing in the legislation mandating that choice. He submits that where other factors suggest a need for a different procedure, a decision maker should not blindly follow established procedure. While I do not disagree with this submission, it says nothing more than that the decision maker’s established procedure is only one of the many factors to be considered.
[63] LAO has decades of experience administering legal aid in the province and managing its relationships with empaneled members of the private bar. The procedure chosen by the decision maker in this case was in accordance with the statute and regulations and was consistent with LAO's past practice for dealing with removal decisions. LAO complied with the statutory scheme, provided disclosure and the opportunity to respond, and gave reasons for its decision. . Fitchett v. The Corporation of the Town of Gravenhurst
In Fitchett v. The Corporation of the Town of Gravenhurst (Div Court, 2023) the Divisional Court heard an interesting JR case where a man who had plead guilty to a small 'illegal fire' POA fine, was later sent an invoice reflecting the actual fire department actual costs. He applied for a judicial review, which was considered on the Baker fairness criteria:A. Degree of Procedural Fairness Required
[8] The Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 states that the degree of procedural fairness required of any administrative decision maker is to be determined by reference to all the circumstances of that decision. These include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of the procedure made by the administrative decision maker itself: at paras. 21, 23-27. Taken as a whole, the circumstances of this case did not lead to high level of procedural fairness owed.
[9] Nature of decision being made and process followed in making it: Mr. Fitchett characterizes the decision as leading to a quasi-criminal conclusion. He also submits that the amount of the invoice is substantial and attracts significant consequences. Specifically, he notes that if the invoice remains unpaid, the municipality is entitled to recover it through a tax sale of his property.
[10] I disagree that the decision to issue the invoice had quasi-criminal consequences. Mr. Fitchett’s conviction for a provincial offence under the Burning By-Law, as a result of his guilty plea, occurred under a separate process. The Respondents did not rely on the guilty plea or conviction to conclude an invoice should be issued. Instead, they separately determined that the Burning By-Law was violated for the purpose of issuing the invoice. In other words, the determination at issue here was simply a monetary matter.
[11] Further, the process for deciding to issue this type of invoice is far from quasi-judicial. Allegations of a Burning By-Law violation typically arise in response to an emergency call. The decision as to whether a violation has occurred is then based on information collected from firsthand observations at the fire. Specifically, the incident commander who attends on the scene of the fire takes photographs and makes notations of any violations. The Deputy Fire Chief then promptly reviews the information and makes a decision whether to confirm any violations.
[12] The property owner also has the opportunity to become immediately involved at the scene of the fire to mitigate any impacts. Subsection 446(1) of the Municipal Act, 2001, S.O. 2001 c. 25 provides that where the municipality under a by-law can direct a person to do a “matter or thing,” the municipality may also provide that in default of the person doing it, the matter or thing shall be done at the person’s expense. In the context of an attendance at a fire, this means that the first step will be for the fire fighters to direct the property owner to cease the activity and extinguish the fire. If the owner does not extinguish the fire, the fire fighters will do so and the owner will be responsible for the related fees.
[13] Subsections 9(2) to 9(4) of the Burning By-Law establish this sequence of events mores specifically. They provide:9(2) Open air fires in contravention of this by-law are not approved by the Chief Fire Official and shall be extinguished.
(3) Where the person does not comply with the directive to extinguish the open air fire, the Chief Fire Official, his firefighters, fire trucks or any other fire equipment may enter upon the land where the fire is located to extinguish the fire.
(4) Upon the fire department attending to extinguish the open fire, whether it since has been extinguished or not, the owner will be responsible to pay fees as established in the Fees and Services Charge By-law. [14] In short, the decision-making process here includes the notation of the alleged violation(s) as the incident unfolds and the immediate opportunity for the property owner to mitigate the damages.
[15] Nature of statutory scheme: The statutory scheme reflects the immediacy of the decision-making process with respect to the Burning By-Law violation, as outlined above. With respect to the issuance of the invoice, it also provides the municipality with broad powers to charge an individual for a service done on their behalf. For example, s. 391(1) of the Municipal Act provides:391(1) Without limiting sections 9, 10 and 11, those sections authorize a municipality to impose fees or charges on persons,
(a) For services or activities provided or done by or on behalf of it;
(b) For costs payable by it for services or activities provided or done by or on behalf of any other municipality or any local board; and
(c) For the use of its property including property under its control. [16] Subsection 391(4) confirms that the municipality may impose a charge whether or not the service was mandatory:391(4) A fee or charge may be imposed whether or not it is mandatory for the municipality or local board imposing the fee or charge to provide or do the service or activity, pay the costs or allow the use of its property. [17] Further, the Fees By-Law makes it mandatory to invoice the property owner once it is determined the Burning By-Law was violated. It provides that the fees set out in Schedule 1 to the Fees By-Law “shall be paid for the services and activities listed.” Schedule 1 includes a fee for the fire department’s response to a violation of the Burning By-Law. The description reads:When fire department responds as a result of a violation of the provisions of the Burning Control By-law. Property owner invoiced. [18] The Fees By-Law therefore does not afford the Town any discretion regarding whether to issue an invoice in these circumstances.
[19] Importance of decision – The decision that Mr. Fitchett violated the By-Law resulted in an invoice to him of close to $10,000. This is an amount that would be significant for many people. However, the decision does not otherwise affect Mr. Fitchett’s rights. Further, counsel submitted that Mr. Fitchett pursued this application judicial review as a matter of “principle;” he did not suggest the amount of the invoice would have unusually severe consequences for Mr. Fitchett.
[20] Legitimate expectations: Mr. Fitchett should not have expected a more extensive process than he received. As indicated, the legislation provides the municipality with broad discretion to invoice individuals. It has set out the terms for doing so in the Fees By-Law. Pursuant to that by-law, once it has been determined that the Burning By-Law was violated, the Town has no discretion with respect to issuing the invoice.
[21] The only other source of Mr. Fitchett’s legitimate expectations would have been the Fact Sheet that was sent to him the day after the fires. As further described below, the Fact Sheet invited Mr. Fitchett to follow up with the Deputy Fire Chief to ask questions. While this process was followed, and Mr. Fitchett, ultimately spoke with the Deputy Fire Chief, there was no suggestion in the Fact Sheet, by-laws or legislation that a more formal process would be available.
[22] Choices made by the administrative decision-maker: Under this factor, Baker states that weight must be given to the choice of procedures made by the administrative decision-maker itself and its institutional constraints. In this case, the Respondents provided a comparatively informal process to dispute the invoice, but one which provided Mr. Fitchett with direct access to the decision-maker, the Deputy Fire Chief. . Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario)
In Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario) (Div Court, 2022) the Divisional Court considered basics of procedural fairness from the leading Baker case:Consideration of the Baker factors
[44] The criteria to be considered in determining the content of the duty of procedural fairness include:(1) the nature of the decision being made and the process followed in making it;
(2) the nature of the statutory schemes and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) choices of procedures made by the agency itself.[8] [45] As stated in Baker, "underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker."[9] . Corporation of County of Simcoe v. Ontario
In Corporation of County of Simcoe v. Ontario (Div Court, 2022) the Divisional Court set out the Baker principles for administrative procedural fairness, here considered in the light of the facts of this judicial review case:Procedural Fairness
[41] The common law duty of fairness is presumed to apply whenever an administrative decision affects the rights, privileges or interests of an individual. This presumption can only be ousted by clear statutory language or necessary implication to the contrary. [10]
[42] The nature and content of the procedural protections to be afforded to individuals is context specific and depends upon the application of factors identified by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)[11]:a. The nature of the decision;
b. The nature and terms of the statutory scheme and the role of the decision in that scheme;
c. The importance of the decision to the affected party;
d. The legitimate expectations of the affected party; and
e. The decision-maker’s choice of procedure. [43] A review of the five Baker factors makes clear that the procedure chosen by the Director meets the burden of procedural fairness.
[44] The first Baker factor augers against robust procedures as the decision was not akin to a judicial process.
[45] With respect to the second factor in Baker, the Act affords no right of appeal from the decision, which would suggest some level of procedural fairness is required. With that said, however, the order is temporary, and the applicant had – and continues to have – the right of review on underlying orders and referrals. Indeed, Sunset Manor met with Ministry representatives prior to the imposition of the order. Further, the Direction allows for dialogue to rectify the problems identified within the temporary order which is, presumably, akin to further submissions. Moreover, the priority of the Act is protection of residents, and notice and submissions would undermine this mandate by delaying protective action, especially since LTHC residents are often vulnerable people. Thus, the second factor does not, on the aggregate, demand that a heightened level of procedural fairness be afforded the applicant in this situation. This is a weighty factor.
[46] The third Baker factor weighs in favor of more stringent procedural rigor since the decision is very important to the applicant.
[47] The fourth Baker factor weighs against a robust process that includes notice and submissions since the Act does not provide for such a process and, as such, the applicant could not have had a reasonable expectation of same.
[48] Finally, the fifth Baker factor suggests that the procedure chosen by the Director is appropriate in the circumstances. The temporary refusal to admit new residents protects vulnerable people from entering a potentially hazardous new home. Conversely, the invitation to provide updates enables the affected home to engage in a discourse with the Ministry such that the applicants’ concerns can be addressed in real time. Further, it is important to note that in this case, the applicant met with the Ministry prior to the rendering of the decision where the applicant voiced its concerns regarding the inspections and other relevant matters. Accordingly, the process undertaken by the Ministry adequately balanced competing interests and ensured that the applicant could voice its concerns prior to the rendering of said decision. This is therefore a weighty factor.
[49] When all five Baker factors are considered, it is clear that the applicant was afforded ample procedural fairness in that an appropriate balance was struck in the circumstances.
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