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Fairness - Is Prior Notice of Intended Remedy Required?. Secure Energy Services Inc. v. Canada (Commissioner of Competition)
In Secure Energy Services Inc. v. Canada (Commissioner of Competition) (Fed CA, 2023) the Federal Court of Appeal dismisses the argument that a party in an administrative hearing (here, before the Competition Tribunal) was entitled to be forewarned of the tribunal's remedy, and make submissions on it:[68] ... Moreover, this Court clarified in Air Canada at paragraph 55 that, generally speaking, an administrative decision maker is not required to give a warning as to what remedy it is considering granting. In Air Canada, that general rule did not apply because Air Canada did not have a sense of the sort of remedies that might be imposed. . Shreedhar v. Canada (Attorney General)
In Shreedhar v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal declined to find unfairness when the tribunal did not pose their proposed remedy to the applicant before issuing their ruling:[5] First, we see no procedural unfairness in the way in which the Board dealt with the date of reinstatement. That issue was squarely in play before the Board; it was therefore incumbent on the parties to make whatever submissions they wished to make in relation to it. Mr. Shreedhar had, and exercised, the right to address the reinstatement date issue in his submissions. The fact that the employer chose not to do so does not mean that the Board was required to canvass the parties again for their views on the issue before rendering its decision. The Board was fully entitled to fashion a remedy without first consulting the parties on the remedy it proposed to grant: Canada (Attorney General) v. Canadian Federal Pilots Association, 2017 FCA 100 at para. 8. . Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks
In Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks (Ont CA, 2020) the Divisional Court considered the fairness issue of whether prior notice of the intended remedy was required:[138] Nation Rise and CanWEA submit that the Minister breached procedural fairness when he failed to give the parties an opportunity to be heard on remedy. According to Nation Rise, a decision-maker must generally give the parties notice about potential remedial options and a chance to make submissions on the issue before ruling on the remedy (see Agrium Vanscoy Potash Operations v. USW, Local 7552, 2013 SKQB 445, where the Saskatchewan Court of Queen’s Bench quashed an arbitrator’s remedial order in the absence of submissions on remedy). In Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2014 ONSC 974 (Div. Ct.), an appeal to the Divisional Court from the ERT, this Court set aside the decision of the ERT to revoke an REA, because the ERT failed to accord the parties procedural fairness by deciding the appropriate remedy without submissions from the parties. On further appeal (2015 ONCA 269), the Court of Appeal upheld the Divisional Court’s finding that the ERT erred in how it dealt with remedy and observed that “parties are not capable of providing meaningful submissions on remedy in the absence of a decision on the substantive merits” (para. 21). This principle applies in an appeal to the Minister.
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[142] As noted by Nation Rise, this Court has held that the ERT must not only solicit submissions on remedy, but that it is also incumbent upon it to do so only after it has delivered a decision on the substantive merits. Ostrander involved an appeal under the EPA from a decision of the ERT to the Divisional Court. The Divisional Court set aside the ERT’s decision to revoke an REA and held that the ERT failed to accord the parties procedural fairness by deciding the appropriate remedy without giving the parties an opportunity to address remedy. On further appeal, the Court of Appeal upheld the Divisional Court’s finding that the ERT erred in how it dealt with remedy (at paras. 96-97):[T]he Tribunal should have provided the parties with the opportunity to address remedy. The potential limitation of the Tribunal's remedial power was a new issue that the Tribunal introduced itself. The parties might have provided helpful submissions….
I also agree with the Divisional Court that, given the broad and varied range of attacks launched against the REA, it was not realistic to expect the parties to address the appropriate remedy at the end of the hearing of the merits without knowing what the Tribunal's findings were in regard to the broad range of alleged harms. [143] As the Court of Appeal noted in Ostrander, in the context of an appeal under the EPA, parties are not capable of providing meaningful submissions on remedy in the absence of a decision on the substantive merits.
[144] While the Minister and CCNS argue that Ostrander is distinguishable and that determinations as to procedural fairness owing in an ERT appeal cannot inform the procedural fairness owing in a ministerial appeal, there is no reason why this should be so.
[145] It is not only the Minister who is directed to consider the “public interest” in making its decisions; the Director is too. Moreover, while the EPA does not contain a specific statutory direction that the ERT is to consider the public interest in its remedial decisions, s. 145.2(1) provides as follows:Subject to sections 145.3 and 145.4, a hearing by the [ERT] under this Part shall be a new hearing and the [ERT] may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the [ERT] considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the [ERT] may substitute its opinion for that of the Director. [146] As found by the ERT in Prince Edward County Field Naturalists v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 25 at para. 51 (the case relied upon by CCNS), the wording of this section puts the ERT “in the shoes of the Director” and, thus, it “may consider matters that the Director may consider in respect of the public interest.” Thus, the fact that the statute provides the Minister with the explicit ability to consider the “public interest” is not a reason to distinguish the procedural fairness obligations of the Minister from those of the ERT, which is implicitly given the same authority on the issue of remedy.
[147] CCNS was clear about the remedy it was seeking – revocation. Nation Rise in its submissions to the Minister did make the statement that, given the wording of the statute, the Minister did not have the authority to revoke or alter the REA. However, it did not argue its position on whether the REA should be revoked, and it did not and could not make a meaningful argument on what alternate remedy the Minister could and should impose until such time as it knew the Minister’s view as to whether there had been an error in the ERT’s decision and, if so, what the nature of that error was.
[148] The inability of Nation Rise to meaningfully address remedy until it knew the Minister’s conclusion that the “harms test” had been met, and why, is apparent on the facts of this case. The Minister concluded that the harm at issue could not be mitigated by the conditions in place. He did so for a number of reasons, some of which have already been addressed.
[149] The Minister concluded that the “proposed operational mitigation measures […] only kick in after a significant number of bats, at a rate of ten per turbine per year, are known to have been killed”. If Nation Rise had been given the opportunity to address this concern, it could have pointed out that, in fact, the OMP required under condition Q provided that the mitigation measures would be implemented as soon as the Project began to operate.
[150] The Minister also found that condition P6 only required monitoring at a minimum of ten turbines, not at all thirty-three turbines. Again, if Nation Rise had been given notice of this concern, it could have pointed out that mitigation measures implemented to protect “Little Brown Myotis [bats]” required that each turbine be monitored monthly during the period from May to September, the period when mortalities, which were not anticipated in any event, may occur. Further, a subset of at least thirty percent of the turbines would be monitored twice weekly from May 1st to October 31st.
[151] Finally, the Minister found that condition P14 only required that monitoring continue for the first three years. In fact, the OMP required that mortality monitoring specific to “Little Brown Myotis” occur for the first three years and every five years thereafter. If the monitoring in the first three years determined that there were negative impacts to the species, then further monitoring would be considered in years 4 to 6.
[152] Nation Rise also suggested in oral argument that it might have suggested further mitigation measures as an alternative to cancellation had it had an opportunity to do so – for example, curtailing the Project’s operation through the months when the bats are active.
[153] These issues go to the reasonableness of the Minister’s decision, but they also illustrate how Nation Rise could not make meaningful submissions on remedy until it knew the Minister’s concerns.
[154] For these reasons we find that the Minister did breach procedural fairness when he failed to give Nation Rise the right to make submissions on remedy after he had reached his decision that the “harms test” had been met.
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