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Fairness - Is Prior Notice of Intended Ruling Required?. DGN Truck & Forklift Driving School v. Ontario Superintendent of Care
In DGN Truck & Forklift Driving School v. Ontario Superintendent of Care (Div Court, 2024) the Divisional Court allowed a JR from the issuance of 'Revocations of Program Approval' (presumably under the Ontario Career Colleges Act, 2005).
The court considers (and allows) a procedural fairness argument, here where the respondent failed to provide prior "notice of her concerns and an opportunity to respond to those concerns":Procedural Fairness
[6] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court of Canada set out the factors that are to be considered in assessing whether the duty of procedural fairness has been set out in a specific set of circumstances. I will consider each of these factors and discuss them in terms of the facts at issue in this case:(a) The nature of the decision being made, and the process followed in making it: As put in Baker, at para. 23:The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. In this case, the Superintendent was performing the function of deciding two things: whether the programs in question complied with provincial standards and, if not, what remedy should be invoked for non-compliance. Neither that function nor the determinations that must be made to fulfill that function requires a process that resembles the trial model. This stands in contrast to the process where the registration to operate a career college is being revoked. However, that does not mean that the procedure employed was adequate.
(b) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates: The statute does not set out specific requirements that the Superintendent must follow to revoke a career college’s approval to provide a specified vocational program. All that is required is that the Superintendent give the registrant notice of the revocation. The statute does not provide an appeal right from the Superintendent’s decision. The lack of an appeal right is a factor that militates in favour of greater procedural protection.
(c) The importance of the decision to the individual(s) affected: As put in Baker, at para. 25, “The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.” In this case the Applicants were only offering the programs that the Superintendent has revoked. As a result, the Applicants have lost all of their business and have had to refund all students the fees that they had paid. The financial impact on the Applicants has been considerable, as has the impact on their reputation that would result from having to immediately cancel all their programs and refund all student fees paid. In Baker at para. 25, the Supreme Court quotes with approval the following statement from Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, at p. 1113: “A high standard of justice is required when the right to continue in one’s profession or employment is at stake.” While the Applicants have not lost their “employment”, they have lost their only source of income.
(d) The legitimate expectations of the persons affected: If the administrative body has made promises or has regular practices that it has adopted “it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according to significant procedural rights”: Baker, at para. 26. The Superintendent has adopted a Progressive Model, which provides direction on how the Superintendent should take enforcement actions based on the registrant’s compliance history, risk and behaviours. According to the Applicants, they had a legitimate expectation that the Superintendent would have regard to the Progressive Model Matrix when choosing the mechanism for enforcement. Under that Matrix, a college without prior history of complaints or cautions would not be subject to program revocation. The investigator’s report to the Superintendent took the position that the Applicants had been cautioned through the General Letters, and that the inherent public safety concerns posed by improperly trained Class A truck drivers justified imposing revocation for the infractions noted. The Superintendent adopted the same position before us. The General Letters were not a caution. They were not specific to the Applicants and did not outline any concerns that the Superintendent had with the Applicants’ program.
(e) Choice of procedure by the decision-maker: There is a need for the court to take into account the choice of procedure that the Superintendent made, especially since that choice did not violate the provisions of the statute. However, this factor is not determinative and must be weighed with all the other factors. [7] Given the importance of the decision to the Applicants, the severe impact the decision has had on them, the lack of appeal right and the legitimate expectation that the Applicants had that any discipline action would be a progressive one, I find that the Superintendent breached the Applicants’ procedural fairness rights when she issued the Revocations of Program Approval without providing the Applicants with notice of her concerns and an opportunity to respond to those concerns. In coming to this conclusion, I reject the suggestion by the Respondent that public safety concerns justified immediate revocation. For example, the program materials that the inspector found to be substandard were materials that the Superintendent had reviewed prior to granting the Applicants approval for their programs. Moreover, inspectors from the Superintendent had reviewed these materials on previous occasions without noting any problems. While this does not mean that the Superintendent cannot change its standards, it does undermine any suggestion that these materials pose such serious safety concerns that the Applicants had to immediately cease providing any instruction. . Canada (Attorney General) v. Ennis
In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal considered an issue of procedural fairness where a party was not given advance notice of the tribunal's intention to rule against it:B. Procedural Fairness
[74] I turn finally to the procedural fairness issue. The Federal Court, as noted, raised as an additional reason for its intervention the fact that it was procedurally unfair for the Commission to have not given Mr. Ennis advance notice that it intended to reach a different conclusion from that reached by the assessor.
[75] With respect, there is no merit in this position. A litigant is not entitled to advance notice of a likely adverse ruling nor to an opportunity to provide submissions based on a draft decision.
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