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Fairness - Limiting Submissions. The Ontario Health Coalition v. Ontario (Minister of Long-Term Care)
In The Ontario Health Coalition v. Ontario (Minister of Long-Term Care) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this from "the June 14, 2023 decision of the Minister of Long-Term Care (the “Minister”) to approve funding and undertake to issue a licence for a new 320 bed long-term care home in Pickering, Ontario".
Here the court considers the 'procrustean' procedural fairness issue of time and document limitations on party submissions:[98] The Minister and the Director made their respective decisions following a public consultation process, and it is for the Director to determine “how the public consultations ... shall be conducted”: FLTCA, s. 109(1). The Supreme Court has consistently confirmed that the content of the duty of procedural fairness will vary depending on the context of the decision. In Baker the Supreme Court stated, at para. 22:[T]he purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [99] Persons making submissions to a court or tribunal are subject to time and page limits. The fact that they may not get to say everything they want to say in the time and/or page limit allotted does not render the hearing unfair: Leitch v. Human Rights Tribunal of Ontario, 2024 ONSC 7128 (Div. Ct.), at para. 28. This principle applies with even greater force to a public consultation process in which hundreds of people may participate. . Erazo v. Ontario (Ministry of Community and Social Services)
In Erazo v. Ontario (Ministry of Community and Social Services) (Ont Divisional Ct, 2025) the Ontario Court of Appeal granted a JR, here where the applicant alleged they "had suffered discrimination with respect to employment because of race, place of origin, ethnic origin, age, and reprisal, contrary to the Human Rights Code". The basis of the complaint was that "he was not offered a permanent position with the Ministry, nor even granted an interview for a case worker position", and terminated just before his position would have become permanent under the collective agreement.
Here the court, finding classic procrustes issues, grants the applicant's arguments that the HRTO process was procedurally unfair as they were "restricted from making submissions on evidence he would be able to put forward" - and that the HRTO ignored procedural evidence and "failed to address Mr. Erazo’s assertion that the hearing had been procedurally unfair" in the reconsideration:Issues #2 and #3: Was the Hearing procedurally unfair?
[50] Mr. Erazo submits that he was denied procedural fairness at the Hearing when he was restricted from making submissions on evidence he would be able to put forward in support of the Application.
[51] The CAD [SS: 'Case Assessment Direction'] explained that the Hearing was intended to offer the Applicant the opportunity to explain the allegations contained in the application and the Tribunal the opportunity to hear arguments from the parties. No witnesses were to be called, and the parties were not expected to submit documents: the Tribunal would make its decision on materials already filed in their submissions (CAD, at paras. 4-5).
[52] In the Reconsideration Decision, the Tribunal found that the Applicant had not provided the Tribunal with documents and witness lists. Mr. Erazo asserts that at the Hearing he was denied the opportunity to provide details of the witness testimony and statements available to him, on the basis that witness testimony would only be canvassed at a merits hearing. As such, the Tribunal’s determination that he had been unable to point to any evidence that could connect the alleged discriminatory treatment to his Code-enumerated grounds was unreasonable.
[53] At para. 7, the CAD stated that the Applicant would be expected to explain what evidence he had in his possession, or that may be reasonably available to him, and which he expected to be able to present at a merits hearing. As well, with respect to the issue of delay, the CAD, at para. 14, directed that the parties would be permitted to call witnesses.
[54] At para. 25 of the Decision, the Tribunal referenced the Tribunal’s Practice Direction on Summary Hearing Requests, which was discussed in Dabic v. Windsor Police Service, 2010 HRTO 1994. Applying those principles, on a summary hearing, in some cases, the issue to be determined was whether “assuming all the allegations in the application to be true, it has a reasonable prospect of success” (at para. 8). In other cases, the focus of the Tribunal is whether “there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated” (at para. 9).
[55] Applying Dabic, if the Applicant’s versions of events were assumed to be true, the Decision does not explain how it concluded that the Application had no reasonable prospect of success. Alternatively, if the focus had been on what the Applicant might have been able to prove based on the evidence he had, or would be reasonably have been available to him, denying Mr. Erazo the opportunity to make submissions about that evidence was not procedurally fair.
[56] The Decision also fails to address the substance of the evidence that Mr. Erazo did identify would be available to him at a merits hearing, concluding, simply, that “the applicant could not point to any evidence to make the connection between the alleged discriminatory treatment and termination and his Code-enumerated grounds” (at para. 39).
[57] Similarly, in the Reconsideration Decision, the Tribunal appeared to ignore the evidence set out in the Application concluding, at para. 19, that, although Mr. Erazo was provided with an opportunity to submit documents and witnesses, he failed to do so.
[58] The Reconsideration Decision also failed to address Mr. Erazo’s assertion that the hearing had been procedurally unfair. . Francis v. Canada (Attorney General)
In Francis v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and upheld) a JR "of a decision of the Appeal Division of the Social Security Tribunal" regarding an employment insurance benefits denial. The material facts were that the employee "refused to comply with the employer’s mandatory policy to obtain a COVID-19 vaccination".
These quotes consider a late filing of case law, which case law was not mentioned by the tribunal:[2] The benefits were denied pursuant to s. 30 of the Employment Insurance Act, S.C. 1996, c. 23. This section provides that an employee is disqualified from receiving employment insurance benefits if the employee loses employment due to misconduct.
[3] The applicant was dismissed by his employer on the ground that he refused to comply with the employer’s mandatory policy to obtain a COVID-19 vaccination. The applicant had requested an exemption from the policy based on creed but the employer denied this request.
...
[10] With respect to the policy, the applicant referred to an unreported decision of the General Division in which the facts, according to the applicant, are identical to his own. In that decision, the General Division decided that there was no misconduct. The applicant sent the unreported decision to the Social Security Tribunal after the hearing and before the Appeal Division issued its decision. The decision was not referred to in the Appeal Division’s reasons.
[11] The applicant submits that failing to mention the unreported decision renders the Appeal Division’s decision unreasonable and demonstrates a lack of procedural fairness because the unreported decision is not mentioned in the reasons.
[12] We disagree that the Appeal Division was obliged to refer to this decision. We note in particular that the facts in that decision are significantly different from the facts in this case.
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