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Fairness - Disclosure. Sloat v. Grand Erie District School Board
In Sloat v. Grand Erie District School Board (Div Court, 2024) the Ontario Divisional Court allowed a JR initiated by a school trustee, here against "four decisions [SS: of the school board] that determined that she breached the respondent’s Trustee Code of Conduct (“the Code”)".
Here the court finds a fairness violation for lack of documentary disclosure:The Applicant Did Not Receive Procedural Fairness
[51] The applicant submits that the failure to provide her and the Board with the various investigation reports amounts to a denial of procedural fairness. She submits that the PowerPoint presentations made to the Board did not include key information the applicant had provided to the investigator, much of which she believes to be exculpatory.
[52] The Code provides that “the report shall be delivered to the Board” (s.4.4(b)). The respondent submits that this allows for verbal presentation and in addition the Code provides more specific direction that the trustees “shall consider only the findings in the final report when voting on the decision and sanction. No Trustee shall undertake their own investigation of the matter (4.4(c))”. The respondent submits that providing only the findings of the reports ensured that only the findings were considered and no trustee undertook an individual investigation.
[53] The Board has the right to determine its own process and make it an efficient process. However, it must be a fair process. The respondent submitted that the Board made a choice to receive the slides in the PowerPoint presentations rather than receive the full investigation reports, the procedure provided for under the Code. The record does not support this. There is nothing in the record to show that the Board made a choice to deviate from the Code. It was simply a case of the PowerPoint Presentations being all that was provided to the applicant and the decision-makers in each of the four Decisions.
[54] In Ramsay v. Waterloo Region District School Board, 2023 ONSC 6508 at para. 37, a decision dealing with the conduct of a school trustee was found to be predominantly administrative in nature. Fairness was determined to be on the lower end of the spectrum considering the Baker factor of the impact of the decision on the school trustee which was found to be nominal, and the sanctions imposed on him minimal. (Ramsay, at para.38). Mr. Ramsay was suspended from attending one Board meeting. Here, the sanctions cumulatively have the effect of essentially removing an elected official from office for over a year and preventing her from attending committee meetings for over two years or even from getting information on behalf of her constituents by way of attending public meetings as a citizen.
[55] It is not a reasonable interpretation of s. 4.4 (c) of the Code to withhold the full investigation report from the decision-makers as required by s.4.4 (b). It effectively turns the Board into a rubber stamp of whoever prepares the PowerPoint presentation, being the only thing that the person charged with the complaint and the decision-makers are allowed to see. Section 218 of the Education Act gives the responsibility of determining whether a member has breached the Code to the Board.
[56] In the PowerPoint slides, portions of the evidence the applicant provided in the investigation were excluded. For example, the PowerPoint slides do not reference that the applicant told the investigator that she never tried to listen and did not hear what was said when she was waiting outside the in camera Board meeting on June 5, 2023. The slides merely state that she was “within listening range”. Further the slides do not reference the fact that she bumped her arthritic finger during the June 12, 2023 meeting and had an overreaction or that a witness who was sitting 3 or 4 feet away from the applicant could not recall if the applicant was present and did not hear any sighs or anyone looking over at the applicant in an unusual way.
[57] It was impossible for the applicant to know, apart from what she told the investigator, if the PowerPoint slides accurately reflected the content of the investigator’s report.
[58] The applicant had a legitimate expectation that the investigation report in which she participated would be available to her. This goes to her ability to answer the case against her. The applicant also had a legitimate expectation that the investigation report would be provided to the decision-makers in accordance with the Code. The concern that trustees not undertake their own investigation does not justify omitting potentially exculpatory information from the full investigation report and from those who are tasked with making the decision. The respondent’s argument in its factum that “the applicant had a full opportunity to provide any information to the trustees in her internal appeals” ignores that in the internal appeals, the applicant’s hands were tied by not having the investigation reports and by there being no reasons or even an explanation for which allegations related to the breaches the applicant was found to have contravened.
[59] Nor is it fair for the PowerPoint presentation to the Board which led to the Third Decision to cherry-pick from comments made in a judicial decision and include only those comments which would likely be seen to be judicial support of the complaint and exclude the judicial comments in the same decision that could be seen to support the opposite conclusion:. that the filing was done in the course of a legal proceeding and this was not a situation where the applicant had simply gone public with confidential and privileged Board information on her own outside the legal arena;
. that the applicant’s interest in getting out the truth through the application may outweigh the Board’s privacy interest; and
. that the remedy is for steps to be taken to either purge the record or to obtain a sealing order of the confidential and private information. [60] The Board was also not informed that shortly after the confidential documents were sent out, the applicant consented to a sealing order.
[61] In a situation where a party is not allowed to participate, make submissions, or answer questions during deliberations, there is a heightened responsibility to ensure that a fair and balanced picture is presented to the decision-makers. In this regard, the applicant was not afforded the requisite procedural fairness.
[62] None of the investigation reports in the four Decisions were provided either to the applicant or the Board members. Potentially exculpatory information was withheld from the Board. On that basis alone the Decisions are procedurally unfair and must be quashed. . Palozzi v. Canada (Attorney General)
In Palozzi v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal considered the content of procedural fairness, here in an EI misconduct case:[7] The applicant also submits that the Appeal Division treated him in a procedurally unfair manner. He observes that the summary of the test for misconduct set out by the General Division in its reasons did not match that provided by the Canada Employment Insurance Commission in its representations.
[8] He disputes the relevance of certain questions posed during the hearing by the Appeal Division member. He asserts that the Appeal Division’s explanation of the applicable legal principles took him by surprise and went further than what was discussed at the hearing.
[9] Under the rules of procedural fairness, the applicant had the right to know the case he had to meet, the right to answer that case and the right to have his case considered fully and fairly by an impartial decision-maker: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at para. 41. In our view, the applicant was afforded a fair hearing; his objections do not raise a reasonable apprehension of bias or a breach of procedural fairness. . 1460973 Ontario Ltd. v. City of Toronto
In 1460973 Ontario Ltd. v. City of Toronto (Div Court, 2023) the Divisional Court considered a JR of a City of Toronto administrative order that an employer violated the City's 'Fair Wage Policy', a policy that applied to all it's contractors. In these quotes, the applicant argued that administrative fairness was breached by inadequate disclosure by the City:[1] As a contractor for the City of Toronto the Applicant was bound by the City’s Fair Wage Policy[1] (“the Policy”). The Policy imposes a minimum hourly wage rate that City contractors must pay to their workers. The rate varies, depending on the type of work performed and is stipulated in the Fair Wage Schedule[2] (“the Schedule”).
[2] The Applicant seeks to quash a decision of the Manager of the City of Toronto’s Fair Wage Office (“the Office”) dated October 13, 2022 (“the Decision”) which found that the Applicant had violated the Policy by not paying the fair wage rate to one of its workers, as required under the Policy. ...
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[20] ... The Applicant submitted that the City also failed to disclose certain interviews, correspondence and photographs prior to the Decision and its conduct overall violates the procedural fairness principle that a party is entitled to know the case against it. ...
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[22] In this case, although the Office’s initial notice to the Applicant was vague, prior to the Decision, the Applicant was informed of the purpose of the investigation and the case it was to meet and made submissions in response. The Applicant was given fair and adequate notice that the Office was investigating whether Mr. Steeves’ work qualified him as a welder under the Policy. The Applicant was given several opportunities to provide oral and written submissions on the issue. The Applicant explicitly acknowledged the scope of the investigation on a number of occasions and provided submissions directly on the issue that was ultimately decided.
[23] The City was not required to disclose every document in its possession. [Greenberg v. Canada (National Parole Board), 10 W.C.B.222, 48 N.R. 310 (F.C.C.A.) at para 12.] The Applicant has not established that it was not informed of all of the facts considered to be relevant or that there was any prejudice to its participation in the decision-making process as a result of any non-disclosure. . Nahas v. HPARB
In Nahas v. HPARB (Div Court, 2022) the Divisional Court considered a doctor's JR of the HPARB dismissal of an appeal of an ICRC investigation and decision that he undergo "specified continuing education". The applicant raised the adequacy of the disclosure they received at the ICRC investigative stage as a fairness issue:[30] With respect to disclosure more generally, the extent of the duty of procedural fairness depends on a variety of factors as set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817.
[31] With respect to the nature of the decision being made, the ICRC performs a screening role. It screens complaints and decides if any further action is necessary: Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 7416 (Div. Ct.) at paras. 37-38. It is not adjudicating in a formal way. It decides whether a complaint should be referred to a discipline hearing (where it would be adjudicated with considerable procedural requirements culminating in a formal hearing) or some other response should be made.
[32] The ICRC has procedural fairness obligations commensurate with its role. The ICRC must give the member notice of the complaint and an opportunity to make written submissions: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, para. 47. Those steps were taken in this case.
[33] With respect to the statutory scheme, the Code contemplates that it is at the HPARB review stage that the applicant receives the complete record of what was before the ICRC. The applicant received that material, including the four documents, and had an opportunity to make submissions about them. At the HPARB, the main issue raised was whether the s. 75 investigation to obtain the medical records gave rise to reporting obligations. That was also the main focus in the applicant’s factum in this court. The applicant abandoned that ground for relief at the outset of the oral hearing in this court.
[34] On the question of whether there was adequate disclosure of the complaint at the ICRC stage, the applicant relies on Volochay, yet that case is not comparable. In Volochay, the member was not given notice of the complaint or an opportunity to respond to it. The complaints committee took steps without any submissions from the member. The applicant also relies on Ajao v. College of Nurses of Ontario, 2011 ONSC 6061 (Div. Ct.). However, that case began with a notice of termination of employment. The conduct giving rise to the ICRC decision was collected in an investigation and not shared with the member. The applicant also relies on Gopinath v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 3143 (Div. Ct.), which arose from a s. 75 investigation. In that case, the court noted at para. 12 that “it is adequate at the investigation stage for the member to know the allegations or substance of the complaint against him or her, not all of the information obtained during the course of the investigation.” The inspector had interviewed numerous witnesses and although a summary was provided, it did not make the member aware of the substance of the allegations. The member was not given the names of the people or the details of the conduct discussed with them. These cases were all different in material ways. . Caron v. Canada (Attorney General)
In Caron v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal held that a failure to disclose applied authority was not a fairness breach:[41] In response to the applicant’s submissions on procedural fairness, I find the applicant was unable to demonstrate any breaches. The one complaint on the question of procedural fairness that did not deal with the Board’s factual findings, that being the Board’s reliance on jurisprudence that had not been disclosed to the applicant (Canada v. Rinaldi, 127 F.T.R. 60,1997 CanLII 16721 (FC)), is not a breach of procedural fairness. This is not a situation where the Board introduced a new principle of law or took the case on a substantially new and different analytical path. . Denso Manufacturing Canada, Inc. v. Canada (National Revenue)
In Denso Manufacturing Canada, Inc. v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the Baker test relating to disclosure by the decision-maker:A. Procedural Fairness – Failure to Disclose the Opinion of a Senior Program Advisor
[40] As noted by the majority of the Supreme Court in Vavilov, at paragraph 77, "“[t]he duty of procedural fairness in administrative law is "eminently variable", inherently flexible and context-specific …”". The majority of the Supreme Court then set out five factors that were previously identified by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (Baker):(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 procedure made by the administrative decision maker itself … [41] In Baker, after referring to these factors, the Supreme Court noted:28 I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. ....
[44] In Canadian Pacific, at paragraph 56, this Court held that "“the ultimate question [for procedural fairness] remains whether the applicant knew the case to meet and had a full and fair chance to respond”". ...
[52] In my view, the Minister had no such duty or obligation. In May v. Ferndale Institution, 2005 SCC 82, the majority of the Supreme Court of Canada noted:92 In the administrative context, the duty of procedural fairness generally requires that the decision-maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker fails to provide sufficient information, his or her decision is void for lack of jurisdiction. … Brown v. Canada (Citizenship and Immigration)
In Brown v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal comments on administrative procedural fairness in the immigration detention context:[136] Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).
[137] Although the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings "“will merit greater vigilance by the courts”" (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.
[138] Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.
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