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Fairness - Types of 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.
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