Simon's Megalomaniacal Legal Resources

Fairness - Types of Hearing

. 7084421 Canada Ltd. v. Tarion Warranty Corp. [written hearings]

In 7084421 Canada Ltd. v. Tarion Warranty Corp. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this against "a decision of the Respondent Tarion ... finding that: (a) The home municipally known as 103 Edward Street, Aurora (the “Home”) is entitled to statutory warranty coverage under the Ontario New Home Warranties Plan Act, RSO 1990, c.O.31 (the “Act”); and (b) The Applicant is “[t]he vendor responsible for providing the statutory warranties."

Here the court considered whether Tarion is a 'tribunal' [within the meaning of SPPA s.1(1) "tribunal", defn and s.3 'Application of Act'], and whether it afforded the applicant a hearing - here couched as an issue of procedural fairness:

Procedural Fairness

[48] The Applicant argues that Tarion was required to hold a hearing pursuant to the Statutory Powers Procedures Act, RSO 1990, c. S.22 (the “SPPA”). Tarion argues that the SPPA does not apply because Tarion is not a “tribunal” and does not exercise a “statutory power of decision” within the meaning of the SPPA. It further argues that the Act does not require that Tarion hold a hearing: SPPA, s. 3(1).

[49] This issue was not raised with Tarion by the Applicant during Tarion’s process and was not raised by the Applicant in its Notice of Application: the Applicant raised the issue for the first time in its factum.

[50] The Applicant’s entire argument on this point is as follows:

“Tarion made the decision without a hearing and without consent from the Applicant” [followed by quotation of the text of SPPA, s. 4.1].

[51] Tarion’s responding submissions include references to ss. 3(1) and 4.1, but no other legal authorities, and in particular, no jurisprudence related to the application of the SPPA or common law procedural fairness requirements to Tarion.

[52] The only procedural fairness issue raised by the Applicant is the failure to hold a hearing. This issue may be disposed of easily, without addressing broader issues of procedural fairness in detail.

[53] Subsection 3(1) of the SPPA provides:

Subject to subsection (2), this Act applies to a proceeding by a tribunal I the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.

[54] The “power[s] of decision” exercised by Tarion are conferred on it by the Act. The Act does not require Tarion to hold a hearing. No basis for such a requirement arising “otherwise by law” was identified or argued by the Applicant.

[55] Tarion is subject to common law requirements of procedural fairness. As noted above, Tarion gave notice to the Applicant of the issues it was investigating, the potential consequences to the Applicant, and gave the Applicant an opportunity to provide “its side of the story” in writing and in a phone call with the Tarion investigator. The Applicant’s response is set out above, in full, and did not include a request to provide further information. Tarion gave notice to the Applicant that it would decide matters on the basis of its investigation, and the Applicant asked Tarion to conclude that the Applicant was not responsible for statutory warranties for the Home.

[56] I am satisfied that Tarion gave notice to the Applicant, explained the process and potential consequences to the Applicant, and gave the Applicant a fair opportunity to be heard in writing and by telephone. I am satisfied that the Applicant engaged in Tarion’s process to the extent that it wished to do so, and did not request or expect a hearing. I would not engage in a more elaborate examination of procedural fairness issues (see: Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 SCR 817) in a case where they have not been adequately raised, particularised, and argued before this court, and in a case where basic requirements of procedural fairness have so obviously been met.

. Pacific Coast Terminals Co. v. Nenad Habus

In Pacific Coast Terminals Co. v. Nenad Habus (Fed CA, 2025) the Federal Court of Appeal dismissed a labour JR, this against a CIRB order prohibiting "employer reprisals against employees for exercising their rights under Part II of the Code in relation to unsafe work" [s.147 CLC 'General prohibition re employer'].

The court considers a procedural fairness issue - here that of an unwanted written hearing, in a federal labour CIRB context:

B. Was the Board’s process procedurally unfair?

[51] The applicants also take issue with the Board’s decision not to hold an oral hearing. Section 16.1, as noted above, provides that "“the Board may decide any matter before it without holding an oral hearing.”"

[52] The applicants argue that the Board deprived them of the opportunity to "“test [Mr.] Habus’ basis for refusing to participate in the investigation process”" and thereby ignored "“countless alleged credibility issues”" that ought to have played a role in the Board’s decision-making: Applicants’ memorandum at para. 111.

[53] As the plain language of section 16.1 states, the Board is not required to hold an oral hearing, even where a party has requested one: Madrigga v. Teamsters Canada Rail Conference, 2016 FCA 151 at para. 27.

[54] Moreover, this Court has repeatedly affirmed that the presence of credibility issues or even contradictory evidence does not on its own override the "“very wide”" discretion afforded to the Board by section 16.1: see Grain Services Union (ILWU-Canada) v. Frisen, 2010 FCA 339 at paras. 24-26. There must be other compelling reasons to warrant an oral hearing: ibid. In short, unless a party can demonstrate that the decision not to hold an oral hearing precluded it from fully asserting its rights or knowing the case it had to meet, this Court will not intervene: Ducharme v. Air Transat A.T. Inc., 2021 FCA 34 at para. 19. The applicants have failed to make that demonstration here.

[55] Further, I agree with the respondents that the Board came to its conclusions irrespective of any credibility determinations about Mr. Habus’s reasons for refusing to participate in the investigation process. The Board found that Mr. Habus was not required to participate in the applicants’ investigation beyond "“informing the employer of the workplace issue”": Decision at 14. Nor was Mr. Habus "“obliged to give reasons to the employer for his lack of participation”": ibid. Accordingly, while the applicants may have lost the opportunity to challenge the credibility of Mr. Habus’s reasons for not participating in the investigation, that lost opportunity had no value—it could not have affected the outcome of the decision. No unfairness resulted from the Board’s decision to proceed without an oral hearing.

. John v. Swedcan Lumican Plastics Inc. [change from full merits hearing to summary dismissal]

In John v. Swedcan Lumican Plastics Inc. (Div Ct, 2025) the Divisional Court allowed a JR, here where "the process engaged in by the HRTO denied him procedural fairness because a summary hearing was ordered by the Vice-Chair in 2024 after such a hearing had already been denied by Vice-Chair Doyle in April 2019, and a merits hearing commenced in 2020":

Procedural fairness and change in procedure

[38] The applicant alleges that the process engaged in by the HRTO denied him procedural fairness because a summary hearing was ordered by the Vice-Chair in 2024 after such a hearing had already been denied by Vice-Chair Doyle in April 2019, and a merits hearing commenced in 2020. No justification was offered by the HRTO for this change in procedure. There is no declaration in evidence that the 2020 merits hearing had been quashed or acknowledgement even that it had begun. Submissions by counsel for the applicant that expressed concern about the change in procedure were never formally acknowledged or addressed by the HRTO

[39] This court has held that applicants do not have a right to a full merits hearing on every HRTO application. Summary hearings permit applications with no hope of success to be weeded out. “Fairness, effectiveness and efficiency for this high-volume tribunal” require an allocation of limited resources to applications that deserve a merits hearing: Xia [SS: Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150 (Div. Ct.)], at para. 22. There is no denial of procedural fairness “by first holding a ... summary hearing rather than proceeding to a full merits hearing” (emphasis added): Xia, at para. 23.

[40] Xia endorses a summary hearing in appropriate cases before a merits hearing is granted. But what if a summary hearing has already been refused and a merits hearing granted and begun? Respectfully, I cannot agree that the applicant was accorded the procedural fairness to which he was entitled in the circumstances of his application.

[41] Regarding allegations of breaches of procedural fairness, a reviewing court must determine whether the appropriate level of procedural fairness was accorded in the decision-making process by reference to all the circumstances of the case, including the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.

[42] The Baker decision set out a non-exhaustive list of factors to consider in determining what procedural fairness is required in a given set of circumstances. The more tribunal processes and the stakes at issue resemble what goes on in courts, the more procedural protections will be expected. Those factors in Baker, at paras. 23-27, include:

a. The nature of the decision being made and the process followed in making it;

b. The nature of the statutory scheme at issue and the terms by which it operates, including limits on appeal or review of decisions taken;

c. The importance of the decision to the individual(s) affected by it;

d. The legitimate expectations of the person challenging the decision, meaning that “[i]f the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness”: at para. 26; and

e. Taking into account and respecting the choice of procedure by the tribunal itself, particularly when the statute grants to the tribunal that authority.

[43] In this case, the workplace respondents had followed the process of the HRTO in requesting that the application be summarily dealt with and dismissed. Their request was rejected, and the matter was sent on for a merits hearing by Vice-Chair Doyle. The merits hearing proceeded in 2020 before the same Vice-Chair. At that hearing, the applicant testified for a day before the matter was adjourned. The application was dealt with very differently in 2024.

[44] On its face, the procedures engaged in by the HRTO in 2024 were statutorily sanctioned. Section 40 of the Code gives the HRTO a broad discretion to adopt procedures and practices that in its opinion offer the best opportunity for a fair, just and expeditious resolution of the merits of the application. Rule 19.1A of the HRTO’s Rules of Procedure provides that the HRTO may hold a summary hearing at the request of a party or on its own initiative to determine whether an application should be dismissed on the basis that there is no reasonable prospect of success. And a “Practice Direction on Summary Hearing Requests” (effective as of May 2013), permits the HRTO to call such a hearing “at any time.”

[45] Section 45.8 of the Code severely limits appeals and reviews and seeks to constrain the setting aside by courts of HRTO decisions. But the inherent powers granted by legislative provisions, rules, and directions “must not undermine principles of procedural natural justice or fairness”: Abrams v. Abrams, 2010 ONSC 2703, 102 O.R. (3d) 645, leave to appeal to Div. Ct. refused, 2010 ONSC 4714, at para. 34. The Baker factors offer a lens through which to view and assess the conduct of the HRTO.

[46] The decision in this case was of extreme importance to the applicant, who felt that he had been lured from his prior employment by the respondent Desmond only to find himself unemployed when he went on a medical leave from Desmond’s company. He had provided materials, geared up for a merits hearing, and had begun his testimony. Frailties in his case or adverse evidence could have been addressed in his own evidence and through the examination and cross-examination of other witnesses. So keenly did the applicant value the right to a merits hearing that he argued strenuously against it being taken away and a summary hearing interposed, but the HRTO refused to change or formally justify its decision.

[47] Most important here were the reasonable expectations of the applicant. Vice-Chair Doyle had denied the respondents’ request for a summary hearing and directed the matter to proceed to a merits hearing. That hearing was begun in 2020, and the applicant provided testimony. The case was then adjourned. In 2024, the Vice-Chair, as was his statutory prerogative, ordered a summary hearing. He made no acknowledgment that Vice-Chair Doyle had already refused such a hearing and directed a merits hearing, or that a merits hearing had been scheduled and begun, and the applicant had offered evidence. Counsel for the applicant raised concerns about the turn the case was taking in 2024 and sought to have the HRTO withdraw its decision to hold a summary hearing, highlighting the natural justice issue.

[48] In the circumstances of this application, where the applicant had been granted a merits hearing into an issue of central importance to his working life, and that hearing had commenced, procedural fairness dictated that the merits hearing should have continued to conclusion. The decision made by Vice-Chair Doyle and procedures already undertaken up to 2020 had created legitimate expectations in the applicant that could only be satisfied by that hearing continuing to conclusion. Even if Vice-Chair Doyle were no longer available to conclude the hearing, the applicant still had every reason to expect that he would have the merits hearing that he had been granted before another member of the tribunal.

[49] In oral submissions, counsel for the respondent argued forcefully that such a result would be a waste of time and resources, as the respondents would produce evidence contradicting and subverting the applicant’s claims. But that submission, even if accurate, cannot be determinative. Procedural fairness requires that an individual litigant have the right to their day in court when that day has been granted to them, even on a claim that may not succeed, and that a decision granting that right may not simply be ignored and silently overruled by another adjudicator at the same level as the adjudicator who made the original decision.

[50] The case of Park v. Lee, 2009 ONCA 651, 98 O.R. (3d) 520 offers a compelling parallel, albeit in a civil case, with respect to the imperative duty to give effect to a party’s expectations. The plaintiff (appellant), representing himself in the trial court, was described by the Court of Appeal as “ill-prepared” at trial: Park, at para. 2. He nevertheless began to offer evidence, secure in the knowledge that the defendant had undertaken to testify. The trial judge found the plaintiff’s evidence “incoherent and incapable of proving the case”, and that the plaintiff’s case was wasting “valuable resources”: Park, at para. 3. He dismissed it after only two hours of the plaintiff’s evidence-in-chief.

[51] The Court of Appeal held that the trial judge should have let the plaintiff finish his evidence and be cross-examined and should have required the defendant to present its promised case. In ordering a new trial, the Court stated, at para. 6:

Failure to take this course amounted to a denial of the appellant's right to a fair trial. A trial court has the inherent jurisdiction to control its own process, but that jurisdiction does not extend to dismissing cases without hearing the available evidence and submissions. However hopeless the plaintiff's case may have seemed after two hours, the trial judge erred by interrupting the appellant before he had completed his evidence, before he had been given the full opportunity to present his case and before the respondents had honoured their undertaking to call the defendant ... .

[52] In the circumstances of this application, the HRTO decision to proceed with a summary hearing in 2024 was a breach of natural justice. The applicant is entitled to a merits hearing.

. Oulds v. Attorney General of Ontario, et al.

In Oulds v. Attorney General of Ontario, et al. (Div Ct, 2025) the Divisional Court dismissed a JR, this against HRTO decisions that "dismissed the complaint on the basis that it did not have jurisdiction as Oulds had failed to establish that her choice not to be vaccinated was based on “creed”".

Here the court considered whether a written hearing was adequate to achieve procedural fairness:

[43] Under s. 40 of the Code, the Tribunal has the power to adopt procedures and practices which, in its opinion, "offer the best opportunity for a fair, just and expeditious resolution of the merits" of the applications. In choosing to proceed by way of written submissions, the Tribunal was within its statutory authority and was following HRTO procedures, and, specifically, Rules 13.1 and 13.2 of the HRTO Rules of Procedure. This court has determined this process to be procedurally fair: Wu v. Toronto Ombudsman, 2023 ONSC 6192, at paras. 40-41.