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Fairness - Evidence - General. Watter v. McMaster University
In Watter v. McMaster University (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this against McMaster University Board of Governors deciding "that adequate cause existed to remove Dr. Watter from his faculty position ... ."
Here the court considered an evidentiary 'adverse inference' issue, addressed in a procedural fairness context:An adverse inference from the University’s failure to call S.L. as a witness
[71] The applicant submits that his hearing was procedurally unfair as the Hearing Committee failed to properly deal with his argument that an adverse inference should be drawn by the University’s failure to call S.L., who was a key witness. He submits that the Decision was confusing and circular in dismissing this argument.
[72] The Court of Appeal in Parris v. Laidley, 2012 ONCA 755, O.J. No. 5214 at para. 2 explained that:Drawing an adverse inference from a failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue. [73] This approach to adverse inferences has continued to be applied by this court: see Warren v. Ontario (Labour Relations Board), 2013 ONSC 847, 305 O.A.C. 52 (Div. Ct.), at paras. 16, 23. . H.C. v. Children’s Aid Society of Toronto
In H.C. v. Children’s Aid Society of Toronto (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against a CFSRB order limited to ordering the local CAS "to provide a letter explaining the investigation and why it was unable to disclose more information gathered in the investigation".
The court considered common law evidentiary administrative protections, here where the SPPA was specifically excluded from application:[61] The hearing was procedurally fair. H.C. participated in an electronic oral hearing and had the opportunity to present documentary evidence, give oral testimony, cross-examine witnesses and to make oral submissions. The evidence admitted and considered by the adjudicator was relevant and probative to the issues she had to decide. Although the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, does not apply to CFSRB, it has broad discretion under the common law to admit or exclude evidence unfettered by the strict rules of evidence: Lorne Sossin, Robert W. Macaulay & James L.H. Sprague, Practice and Procedure Before Administrative Tribunals, s. 22:3.
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[64] The CFSRB is empowered to ensure a fair but expeditious hearing: Walters v. Centurion Property Associate Inc., 2024 ONSC 7093 (Div. Ct.), at para. 27. The rulings were in keeping with the proper exercise of those powers. As an example, admitting the Investigator’s affidavit and leaving open the question of weight did not render the hearing procedurally unfair. It was clear she had material and probative evidence to give.
[65] The extent of the disclosure sought by H.C. was not necessary given the limited scope of remedies available to the CFSRB adjudicator. Her analysis regarding this was sound. Given the scope of remedies CFSRB could exercise on the facts of this case, the limiting of the issues did not render the hearing unfair. It was within the discretion of CFSRB to limit the hearing to the issues that were canvassed and ordered at the pre-hearing conference pursuant to the CFSRB’s authority under s. 50 of General Matters under the Authority of the Lieutenant Governor in Council, O. Reg. 155/18.
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