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Fairness - Is Prejudice Required?This much-contested issue asks: how much harm is required to a party by a breach of fairness before it becomes actionable - before it 'counts'. Recently, if the lower courts find that a breach of fairness incurs little or no 'prejudice' to a party, they will normally grant no remedy. This is in contrast to older Supreme Court of Canada law which holds that any 'fairness' breach requires a remedy, normally re-doing the lower hearing.
. R. v. Habib
In R. v. Habib (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal, here regarding gun possession offence guilty pleas, and considered the appropriate fairness remedy - particularly in light of Cardinal v Kent Institution:[27] Because the sentencing judge breached the right to be heard, we must sentence the appellant afresh and without deference to the existing sentence. Under this remedial rule, which this court endorsed in R. v. Cook, 2013 ONCA 467, 307 O.A.C. 280, at paras. 37-38 and 43, the appellant need not show that the breach impacted the sentence as Lacasse requires for errors in principle. This is a specific application of the general rule from Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, that breaching the right to be heard invalidates decisions even if a new hearing is unlikely to lead to a different result. Cardinal adopted this rule because the right to be heard is an “independent, unqualified” entitlement to fair treatment that is distinct from the decision’s substantive appropriateness.[1] See at p. 661; see also Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 674.
[28] The narrow exception to this remedial rule does not apply. Under that exception, there is no need to decide the matter afresh if it is inevitable that the result would be the same if a fair process were followed. See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-229; R. v. Papadopoulos (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.), at paras. 24-26. That is not inevitable here. While there was evidence supporting this finding, other evidence contradicted it. Further, the standard of proof barred the sentencing judge from making this finding unless he determined that there was no reasonable doubt on this issue. See Gardiner, at pp. 414-416. If the sentencing judge had given notice and heard the appellant’s submissions and, potentially, his testimony, he may have been convinced that the appellant did not intend to kill the employee or, even if he was not so convinced, it may still have raised a reasonable doubt. This, in turn, may have caused him to impose a lower sentence because he treated the finding as an important aggravating factor. That possibility is sufficient and, as Cardinal teaches, we should not speculate about what the result of a fair process might have been. . PUC Services Inc. v. Power Workers’ Union
In PUC Services Inc. v. Power Workers’ Union (Div Court, 2024) the Divisional Court dismissed a labour JR brought by the employer, here respecting a one-day suspension from employment of a union representative for "unprofessional and disrespectful conduct".
Here the court states plainly that it has discretion to not allow a JR, absent prejudice:[67] While I agree with PUC that the arbitration hearing was unfair to the extent the Arbitrator failed to hear and rule on PUC’s preliminary objection to the admissibility of the evidence, I find the breach of procedural fairness had no impact on the outcome of the arbitration. I would not exercise my discretion to grant the application because I am satisfied the result of a new hearing will inevitably be the same and there is no purpose in remitting this matter for a new hearing. . Finn v. Highland Shores Children’s Aid Society
In Finn v. Highland Shores Children’s Aid Society (Div Court, 2023) the Divisional Court considered (and allowed) a JR brought by an applicant who, after a CAS investigation [initiated under CYFSA s.125] had been 'coded' (or 'verified') [under CYFSA s.126] as a 'risk to children'.
In this quote, the court confirms that a breach of procedural fairness need not result in 'prejudice' before the decision can be rendered invalid:[51] It is a well-settled principle of judicial review that a decision that was arrived at unfairly cannot be upheld, regardless of the apparent merits of the decision. This principle was explained by the Supreme Court of Canada in Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 (S.C.C.), in which Le Dain J. wrote for the Court, at p. 661:[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. ....
Remedy
[54] When the Court finds that there has been a breach of the duty of fairness, the default remedy is the quashing of the decision. The Court will exercise its discretion to let a decision stand only in exceptional circumstances, where the flaws in the decision are trivial, inconsequential or technical: Canadian College of Business & Computers Inc. v. Superintendant, Under the Private Career Colleges Act, 2010 ONCA 856, at paras. 60, 67; Vavilov, at para. 96. This is not the case in the present matter.
[55] This decision must be set aside, given that the investigation was flawed, and the procedure was unfair to the Applicant. . Canada v. Bowker
In Canada v. Bowker (Fed CA, 2023) the Federal Court of Appeal considered a Crown appeal from a Tax Court cost award. In this quote the court considers when a fairness breach mandates a remedy:[77] A finding of breach of procedural fairness renders a decision liable to be overturned: Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at para. 23, Université du Québec à Trois-Rivières v. Larocque, 1993 CanLII 162 (SCC), [1993] 1 S.C.R. 471 at 493. However, a court may exercise its discretion to not grant a remedy for breach of procedural fairness where the result is inevitable: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202 at 228-229, Rebello v. Canada (Justice), 2023 FCA 67 at para. 16. . Linhares v. Rahman
In Linhares v. Rahman (Div Court, 2023) the Divisional Court implicitly holds, without comment or argument, that fairness breach without prejudice is inadequate to justify an appeal - here an RTA 210 tenant appeal:[5] At the hearing of the motion, it became evident from the transcript of the hearing before the LTB that the Member had stated that the parties would be permitted to make post-hearing submissions on the issue of whether the landlord or owner of the unit was a corporation, as the Appellant alleged, in which case, the Respondent would not be entitled to deliver notice under s. 48(1) of the RTA. See: RTA, s. 48(5). In the Decision, without having provided an opportunity for post-hearing submissions, the Member found that the Respondent owned the unit with her daughter and carried out the duties of landlord. While the Appellant did not raise this as a ground of appeal, I have nonetheless considered it, as further detailed below.
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[12] Although the Appellant did not raise it as a ground of appeal, out of an abundance of caution, I have considered whether the Member’s failure to provide an opportunity for post-hearing submissions, despite having stated that she would, could give rise to an issue of procedural fairness, which would be within this court’s jurisdiction. However, even if the parties had been afforded an opportunity to make post-hearing submissions, this would not have affected the outcome before the LTB. ... . Burlacu v. Canada (Attorney General)
In Burlacu v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal would have dismissed a JR on fairness grounds if the breach was only 'technical' (ie. lacking prejudice):[8] The appellant submits, as he did in the Federal Court, that the grievance was procedurally unfair and so the grievance decision must be quashed and sent back for redetermination.
[9] Regardless of which standard of review, if any, is applied to this issue of procedural fairness, we reject this submission. As the Federal Court found, at best there was only a technical, inconsequential breach that made no practical difference in these circumstances: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 142, citing Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1 at 228-30 S.C.R.; and see, e.g., Canada (Human Rights Commission) v. Saddle Lake Cree Nation, 2018 FCA 228 at para. 20, Gauthier v. Canada (Attorney General), 2018 FCA 96 at paras. 8-9 and Gupta v. Canada (Attorney General), 2016 FCA 50 at para. 15. In this regard, we adopt the reasons of the Federal Court at paragraph 88 ....
Para 88 of the Federal Court ruling reads:[88] While I am prepared to assume without deciding that the applicant should have had an opportunity to address the contents of the Analysis document before a decision on his grievance was made, in the particular circumstances of this case, I am satisfied that there is nothing the applicant could have said about the contents of the document that would have made any difference to the result of his grievance. As a result, the failure to provide the applicant with an opportunity to address Ms. Cloutier-McNicoll’s Analysis was a purely technical breach of the requirements of procedural fairness which occasioned no substantial wrong or miscarriage of justice. Consequently, there is no basis for this Court to interfere with the decision below. See Federal Courts Act, paragraph 18.1(5)(a); see also Khosa at para 43 and Mobil Oil Canada Ltd at 228-29. . Cardinal v. Director of Kent Institution
In Cardinal v. Director of Kent Institution (SCC, 1985) the Supreme Court of Canada did not require prejudice to a party by a breach of fairness before it granted a remedy:[23] ... I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. . McGregor v. Pitawanakwat
In McGregor v. Pitawanakwat (Ont CA, 2017) the Court of Appeal held that breach of fairness is a 'free-standing' ground of review, not requiring prejudice to a party before it is actionable:[12] A final preliminary point is that the denial of a fair hearing is a free-standing ground of review. A correct decision cannot cure an unfair hearing, because the unfairness would taint the entire proceedings: see R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 100. . R. v. Olusoga
In R. v. Olusoga (Ont CA, 2019) the Court of Appeal stated the principle that prejudice need not be required from a breach of procedural fairness before it becomes actionable:[13] We agree with duty counsel that the appeal must be allowed and a new trial ordered. It is well-established that “a miscarriage of justice need not always be supported by the demonstration of actual prejudice to an appellant; sometimes, public confidence in the administration of justice is just as shaken by the appearance as by the fact of an unfair proceeding”: R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 51 (quoting from R. v. Kankis, 2012 ONSC 378, 281 C.C.C. (3d) 113, at para. 37); see also R. v. Cameron (1991), 1991 CanLII 7182 (ON CA), 2 O.R. (3d) 633 (C.A.), at pp. 638-39; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 541-42. . Foxgate Development Inc. v. Jane Doe
In Foxgate Development Inc. v. Jane Doe (Ont CA, 2021) the Court of Appeal re-affirmed the principle from Cardinal v Kent Institution (SCC, 1985) that no prejudice need be shown on a finding of lack of procedural fairness:[54] The requirements of fairness in the context of this proceeding constituted an independent right of Mr. Williams. It is no answer to the denial of these rights to say a fair opportunity to be heard would have made no difference in the outcome. As Le Dain J. stated in Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p. 661:I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. [55] The narrow exception to this principle carved out in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at p. 228, does not apply here, as there was no inevitable outcome to these proceedings. Consequently, the order striking Mr. Williams’ pleadings must be set aside. . Dr. Rajiv Maini v. HPARB et al.
In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered whether a breach of fairness required prejudice to be reviewable (it did):[30] It is also the case that a breach of procedural fairness alone does not constitute a reviewable error. Even where there is a breach of procedural fairness, the matter need only be returned to the decision-maker for reconsideration where the breach had an impact on the decision (Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 (Div. Ct.), para. 19). As recently confirmed by this Court, in Al-Kazely v. v. College of Physicians and Surgeons of Ontario, 2022 ONSC 44 (Div. Ct.), at paragraph 48:Where a breach of procedural fairness has had no impact on the decision, the matter need not be returned to the decision-maker for reconsideration. As set out by the Federal Court of Appeal in Nagulathas v. Canada (Minister of Citizenship and Immigration), 2012 FC 1159, at para. 24; and the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 43), “Where there may be a breach of the rules of fairness, the court should assess whether the error ‘occasions no substantial wrong or miscarriage of justice’ …… The breach of procedural fairness must affect the outcome for the court to find a reviewable error”. . Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario
In Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court held that where there was no prejudice caused by a breach of fairness [Khosa (SCC, 2009, para 43): where "the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice" (Khosa was a federal case)], then there was no remedy :[47] There was procedural unfairness when the Applicant’s third rebuttal, dated November 1, 2019, was not provided to the ICRC panel. The College agrees with this finding. However, this was a minor breach of procedural fairness that had no impact on the final decision and that certainly does not warrant a finding of abuse of process.
[48] The Applicant has not cited any error in the ICRC Decision as a result of this breach and I can find no error in the Decision because of it. Where a breach of procedural fairness has had no impact on the decision, the matter need not be returned to the decision-maker for reconsideration. As set out by the Federal Court of Appeal in Nagulathas v. Canada (Minister of Citizenship and Immigration), 2012 FC 1159, at para. 24; and the Supreme Court of Canada in Canada (Minister of citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 43), “Where there may be a breach of the rules of fairness, the court should assess whether the error ‘occasions no substantial wrong or miscarriage of justice’ …… The breach of procedural fairness must affect the outcome for the court to find a reviewable error”. . Girouard v. Canada (Attorney General)
In Girouard v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal commented on the administrative principle of procedural fairness:[90] It is well established that the requirements of procedural fairness vary according to the requirements set out by Parliament itself and the procedural choices an administrative agency may make, particularly when the statute itself recognizes the agency’s ability to make its own procedures. It is true that how important a decision is to the affected person must also be taken into account. But, ultimately, what is most important is 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”": Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paragraph 22. See also: Therrien, at paragraphs 87–89; Moreau‑Bérubé, at paragraph 81.
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[95] I am well aware of the line of decisions according to which any breach of the principles of procedural fairness, particularly of the right to be heard, must result in the incorrect decision being set aside, without regard to the effect the violation might have had on the decision: Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at paragraph 23; Université du Québec à Trois‑Rivières v. Larocque, 1993 CanLII 162 (SCC), [1993] 1 S.C.R. 471 at paragraphs 38–53. However, an exception must be made when the error committed by the administrative agency is not determinative and the result would have inevitably been the same if the violation had not occurred: Mobil Oil Canada Ltd. v. Canada‑Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202 at paragraphs 52–55. Many decisions of this Court are to the same effect: see, in particular, Cartier v. Canada (Attorney General), 2002 FCA 384, [2003] 2 F.C. 317, at paragraph 33; Robbins v. Canada (Attorney General), 2017 FCA 24; Canada (Minister of Public Safety and Emergency Preparedness) v. Cha, 2006 FCA 126, [2007] 1 F.C.R. 409; Stevens v. Conservative Party of Canada, 2005 FCA 383, [2006] 2 F.C.R. 315.
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