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Fairness - Fresh Law. Halton (Regional Municipality) v. Canada (Transportation Agency)
In Halton (Regional Municipality) v. Canada (Transportation Agency) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from Ontario municipalities of a decision of the Canada Transportation Act [CTA] [s.41(1)].
Stratas JA considers issues of fresh law (which he addresses under 'waiver'), here in a 'fairness' context:(2) Procedural matters
[13] Where a party in the reviewing court submits that the administrative decision-maker did something procedurally unfair and the party did not raise the point before the administrative decision-maker, the administrative decision-maker did not make a decision on any argued procedural point. In that circumstance, it does not make sense to speak of a standard of review of a decision because, quite simply, there was no decision. In that situation, the Court should simply evaluate whether the procedures were fair within the meaning of Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at 837-841 S.C.R. However, in that situation, since the party did not raise the point before the administrative decision-maker, the party may be precluded from raising the matter in the reviewing court due to the doctrine of waiver. In this case, more will be said about this: see paragraphs 37-38 below.
[14] As for instances where an administrative decision-maker has made a procedural decision after receiving submissions, standard of review need not be addressed in detail in this case. The procedural issues the appellants raise in this Court largely do not implicate that situation. And due to the nature of the issues raised, they can be resolved without considering the standard of review.
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[37] At the end of the joint panel’s hearing, a very lengthy one, it announced—consistent with everyone’s understanding—that the evidentiary record was closed. The appellants did not object.
[38] In the circumstances, the lack of objection constituted waiver or lack of timely objection. This prevents the appellants from raising this alleged procedural error in this Court: Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, 66 Admin. L.R. (6th) 1 at para. 47; Canadian National Railway Company v. Canada (Transportation Agency), 2021 FCA 173 at para. 68; Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, 314 D.L.R. (4th) 340 at para. 48; Algoma Tubes Inc. v. Canada (Attorney General), 2022 FCA 89 at para. 19.
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