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Fairness - Issue Raised by Tribunal. 200 Ferrand Realty Limited v. 1284225 Ontario Limited
In 200 Ferrand Realty Limited v. 1284225 Ontario Limited (Ont CA, 2024) the Divisional Court considered an appeal, here regarding a parking lot commercial assignment.
Here the issue was the duty of a court to allow the parties to make submissions on new court-raised issues:[4] ... It is improper for a judge to raise personally and without notice the issue on which the disposition turns without inviting submissions from the parties: Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 61-63. . 2198806 Ontario Inc. v. The Corporation of the City of Windsor
In 2198806 Ontario Inc. v. The Corporation of the City of Windsor (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against an appeal decision of the Assessment Review Board (ARB) which denied a challenge to a municipality's decision to not grant a property tax refund of the applicant's hotel property when it was shut down for construction to convert to residential rental use.
In these quotes the court comments on a tribunal's duty to advise parties of new issues that it is considering (although in this case any such duty was apparently met):Did the Board deny the Applicant procedural fairness when it interpreted the demolition provision without seeking submissions from the parties on its proposed interpretation?
[22] The Applicant submits the Board breached procedural fairness when it interpreted s. 357(1)(d)(ii) without seeking submissions from the parties on its new proposed interpretation.
[23] There was no breach of procedural fairness in the circumstances of this case. The Board has the authority to control its own process and is owed deference on procedural rulings: Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, at para. 231; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 27.
[24] The parties should have knowledge of the essential issues in dispute so they can meaningfully respond. But the right to be heard does not require a tribunal to provide the parties with a further opportunity to make legal submissions every time a legal argument arises in deliberations that was not mentioned by the parties: Girouard v. Canada (Attorney General), 2020 FCA 129, at paras. 97-98; IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, at para. 93.
[25] Here, the Member did ask the parties for additional submissions on the interpretation of s. 357(1)(d)(ii). At para. 53 of her reasons, the Member noted that, although the parties’ submissions were directed primarily at the quantum of relief, she was concerned about the issue of entitlement under s. 357(1)(d)(ii). She requested and received submissions on entitlement. She therefore proceeded in a procedurally fair manner.
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