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Fairness - Bakers - Basics (3). Verbakel v. Prokopiv
In Verbakel v. Prokopiv (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal, here on fairness grounds where the appellant "shared with others", and an adjournment scheduling "to a date upon which her legal representative (not counsel on appeal) could attend" was denied. As a consequence, the "hearing proceeded without the Appellant having legal representation".
Here the court considers basic principles of procedural fairness from Baker:(i) Governing Principles
[41] Procedural fairness is variable and is to be determined in the context of each case. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court of Canada set out five factors to be considered in assessing the duty of fairness. They are:a. the nature of the decision being made and the process followed in making it;
b. the nature of the statutory scheme and the terms of the statute in which the decision maker operates;
c. the importance of the decision to the individual or individuals affected;
d. the legitimate expectations of the person challenging the decision; and
e. the choices of procedure made by the administrative decision maker itself. . DGN Truck & Forklift Driving School v. Ontario Superintendent of Care
In DGN Truck & Forklift Driving School v. Ontario Superintendent of Care (Div Court, 2024) the Divisional Court allowed a JR from the issuance of 'Revocations of Program Approval' (presumably under the Ontario Career Colleges Act, 2005).
The court considers (and allows) a procedural fairness argument, here where the respondent failed to provide prior "notice of her concerns and an opportunity to respond to those concerns":Procedural Fairness
[6] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court of Canada set out the factors that are to be considered in assessing whether the duty of procedural fairness has been set out in a specific set of circumstances. I will consider each of these factors and discuss them in terms of the facts at issue in this case:(a) The nature of the decision being made, and the process followed in making it: As put in Baker, at para. 23:The more the process provided 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. In this case, the Superintendent was performing the function of deciding two things: whether the programs in question complied with provincial standards and, if not, what remedy should be invoked for non-compliance. Neither that function nor the determinations that must be made to fulfill that function requires a process that resembles the trial model. This stands in contrast to the process where the registration to operate a career college is being revoked. However, that does not mean that the procedure employed was adequate.
(b) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates: The statute does not set out specific requirements that the Superintendent must follow to revoke a career college’s approval to provide a specified vocational program. All that is required is that the Superintendent give the registrant notice of the revocation. The statute does not provide an appeal right from the Superintendent’s decision. The lack of an appeal right is a factor that militates in favour of greater procedural protection.
(c) The importance of the decision to the individual(s) affected: As put in Baker, at para. 25, “The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.” In this case the Applicants were only offering the programs that the Superintendent has revoked. As a result, the Applicants have lost all of their business and have had to refund all students the fees that they had paid. The financial impact on the Applicants has been considerable, as has the impact on their reputation that would result from having to immediately cancel all their programs and refund all student fees paid. In Baker at para. 25, the Supreme Court quotes with approval the following statement from Dickson J. (as he then was) 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.” While the Applicants have not lost their “employment”, they have lost their only source of income.
(d) The legitimate expectations of the persons affected: If the administrative body has made promises or has regular practices that it has adopted “it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according to significant procedural rights”: Baker, at para. 26. The Superintendent has adopted a Progressive Model, which provides direction on how the Superintendent should take enforcement actions based on the registrant’s compliance history, risk and behaviours. According to the Applicants, they had a legitimate expectation that the Superintendent would have regard to the Progressive Model Matrix when choosing the mechanism for enforcement. Under that Matrix, a college without prior history of complaints or cautions would not be subject to program revocation. The investigator’s report to the Superintendent took the position that the Applicants had been cautioned through the General Letters, and that the inherent public safety concerns posed by improperly trained Class A truck drivers justified imposing revocation for the infractions noted. The Superintendent adopted the same position before us. The General Letters were not a caution. They were not specific to the Applicants and did not outline any concerns that the Superintendent had with the Applicants’ program.
(e) Choice of procedure by the decision-maker: There is a need for the court to take into account the choice of procedure that the Superintendent made, especially since that choice did not violate the provisions of the statute. However, this factor is not determinative and must be weighed with all the other factors. [7] Given the importance of the decision to the Applicants, the severe impact the decision has had on them, the lack of appeal right and the legitimate expectation that the Applicants had that any discipline action would be a progressive one, I find that the Superintendent breached the Applicants’ procedural fairness rights when she issued the Revocations of Program Approval without providing the Applicants with notice of her concerns and an opportunity to respond to those concerns. In coming to this conclusion, I reject the suggestion by the Respondent that public safety concerns justified immediate revocation. For example, the program materials that the inspector found to be substandard were materials that the Superintendent had reviewed prior to granting the Applicants approval for their programs. Moreover, inspectors from the Superintendent had reviewed these materials on previous occasions without noting any problems. While this does not mean that the Superintendent cannot change its standards, it does undermine any suggestion that these materials pose such serious safety concerns that the Applicants had to immediately cease providing any instruction. . PUC Services Inc. v. Power Workers’ Union
In PUC Services Inc. v. Power Workers’ Union (Div Court, 2024) the Divisional Court dismissed a labour JR brought by the employer, here respecting a one-day suspension from employment of a union representative for "unprofessional and disrespectful conduct".
The court briefly summarizes the Baker factors:[24] When an administrative decision-maker, like a labour arbitrator, makes a decision that affects the rights, privileges or interests of an individual, the common law duty of procedural fairness is presumed to apply. However, the content of the duty of procedural fairness varies and is context-specific: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 77. To decide whether the process adopted by the Arbitrator was fair, I must consider (a) the nature of the decision, (b) the nature of the “statutory scheme” under which the decision was made, (c) the importance of the decision to those affected by it, (d) the legitimate expectations of the parties, and (e) the choice of procedure made by the decision-maker: Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28.
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[29] The third factor is the importance of the decision to the individual or individuals affected by it. Greater procedural protections are required for decisions that have a significant impact on the lives of those affected: Baker, at para. 25. ... . Yavari v. Ontario (Minister of Finance)
In Yavari v. Ontario (Minister of Finance) (Div Court, 2024) the Divisional Court allowed a JR, here challenging "a decision of the Minister of Finance of Ontario (“the Minister”) under section 20 of the Land Transfer Tax Act, R.S.O. 1990, c. L.6 (“LTTA”) to deny the applicant relief from payment of the Non-Resident Speculation Tax (“NRST”)".
Here the court sets out briefly the role of the Baker case in determining 'procedural fairness', law which is often skipped over in fairness cases:[18] Regarding breaches of procedural fairness, this Court must determine whether the requisite level of procedural fairness was granted by applying the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.[2] . RS v. Ontario (Health Professions Appeal and Review Board)
In RS v. Ontario (Health Professions Appeal and Review Board) (Div Court, 2024) the Divisional Court considers the role of the leading Baker case in assessing procedural fairness:[37] On questions of procedural fairness, the court inquires into whether the appropriate degree of procedural fairness has been provided. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28. . Syed v. Security National Insurance and Licence Appeal Tribunal
In Syed v. Security National Insurance and Licence Appeal Tribunal (Div Court, 2024) the Divisional Court dismisses a LAT SABS JR, here involving a 'catastrophic impairment' claim [under SABS s.3.1(1) and 45].
Here the court reviewed basics of the Baker procedural fairness test:[53] The Supreme Court of Canada’s decision in Baker v. Canada[3] remains the starting point for an analysis of procedural fairness. Para. 22 reads:Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights continued 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. [54] In this case, the Statutory Powers of Procedure Act, R.S.O. 1990, c. 22 (the “SPPA”), applied to the hearing before the Adjudicator and establishes the procedural requirements to be met by administrative tribunals in conducting hearings and in making decisions. . Danso v. The Human Rights Tribunal of Ontario et al.
In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court sets out the basic Baker doctrine, here in the unusual context of an administratively-declared 'vexatious litigant' whose tribunal case (and JR) were still heard:[56] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court stated the following, at para. 22:Although the duty of [procedural] fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, … 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 to put forward their views and evidence fully and have them considered by the decision-maker. [57] Several factors have been recognized, and enumerated in Baker, that determine what is required to fulfill the duty of procedural fairness. The list of factors in Baker are non-exhaustive, but the five main factors to be considered are: paras. 23-28.1. 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 individuals affected.
4. The legitimate expectations of the person challenging the decision.
5. The choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. ....
[63] This Application should not have been processed by the Tribunal given the failure of the Applicant to properly comply with the order dated March 1, 2019, declaring him to be a vexatious litigant. The Tribunal went out of its way to provide the Applicant with a full right to be heard even though it could have simply refused outright from the filing of the Application to consider same.
[64] In reviewing the factors in Baker, the nature of the decision was taken into account. It was noted that the Applicant required leave because he had been declared a vexatious litigant. The administrative error was corrected by providing the Applicant with a full opportunity to make submissions on the issue of leave.
[65] The decision comparts with the statutory scheme prescribed for Reconsideration applications.
[66] It is a given that the issue was of importance to the Applicant. For that reason, he was provided an opportunity to make proper leave submissions.
[67] That the Applicant chose to ignore that invitation and yet again attempt to re-state his case does not give rise to an issue of procedural unfairness.
[68] This accounts for the expectations of the Tribunal that the Applicant would follow the procedure to have a matter considered for leave in essence, the refusal of the Applicant to accept that his first three Applications had failed and he had been declared a vexatious litigant does not support a suggestion of procedural unfairness in circumstances where the Tribunal has clear authority to determine its own procedure.
[69] As set out in Baker at para. 27, it is noted that:Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedures made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, in the circumstances: Brown and Evans, supra, at pp. 7-60 to 7-70. While this of course is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: I.W.A. v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 per Gonthier J. [70] For these reasons, I have concluded that the Applicant has not established that there was any procedural unfairness in this matter. I would not give effect to that ground of review. . Desbien v. Jiang
In Desbien v. Jiang (Div Court, 2023) the Divisional Court considers basics of the Baker procedural fairness doctrine:[13] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), at para. 21, the Supreme Court of Canada wrote:... the duty of procedural fairness in administrative law is "eminently variable", inherently flexible and context-specific. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances ... . Mirza et al. v. Law Society of Ontario
In Mirza et al. v. Law Society of Ontario (Div Court, 2023) the Divisional Court briefly canvasses basics of the Baker procedural fairness doctrine:[22] The concept of procedural fairness is “eminently variable and its content is to be decided in the specific context of each case”: Baker v. Canada (Ministry of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 21. In Baker, at paras. 23-27, the Supreme Court of Canada set out a non-exhaustive list of five factors, that inform the content of the duty of fairness, which we will now address. In this case, applying the factors, it was a violation of procedural fairness to cancel the Applicants’ registration in the licencing process without having held a hearing. . Yan v. 30 Forensic Engineering Inc.
In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court briefly summarized the 'Baker' fairness doctrine:[30] To begin with, there is no question that the HRTO owed Ms. Yan a duty of procedural fairness. What must be assessed is whether that duty was met. The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27 identified several relevant factors to assess the level of procedural fairness: 1. The nature of the decision being made and the process followed to make it; 2. The nature of the statutory scheme; 3. The importance of the decision to the individuals affected; 4. The legitimate expectations of the person challenging the decision; 5. The choices of procedure made by the agency itself, especially if the statute leaves the decision-maker with the ability to choose its own procedures or when the agency has expertise to determine the procedures that are appropriate in the circumstances.
[31] Also in Baker, at para. 22, the Supreme Court of Canada observed that the:purpose of the participatory rights contained within the duty of procedural fairness is to ensure that the 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.
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