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Fairness - Prompt Objection Required. Sloat v. Grand Erie District School Board
In Sloat v. Grand Erie District School Board (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, this against a School Board decision that "determined that the applicant had breached the Board’s Trustee Code of Conduct (the “Code”)".
Here the court considers it's discretion where the applicant first raised a fairness issue in the JR, and not before the tribunal - and whether that was fatal to the complaint [ie. "the applicant did not raise this concern about procedural fairness until the application for judicial review"]:[41] The Board also argues that the applicant did not raise this concern about procedural fairness until the application for judicial review, such that the court should refuse to consider this issue. It relies, inter alia, on A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, where Rothstein J., speaking for the majority, said the following, at paras. 22 – 25:The ATA sought judicial review of the adjudicator’s decision. Without raising the point before the Commissioner or the adjudicator or even in the originating notice for judicial review, the ATA raised the timelines issue for the first time in argument. The ATA was indeed entitled to seek judicial review. However, it did not have a right to require the court to consider this issue. Just as a court has discretion to refuse to undertake judicial review where, for example, there is an adequate alternative remedy, it also has a discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so: see, for example, Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3 (S.C.C.), per Lamer C.J., at para. 30: “[T]he relief which a court may grant by way of judicial review is, in essence, discretionary. This [long-standing general] principle flows from the fact that the prerogative writs are extraordinary [and discretionary] remedies” (para. 30).
Generally, this discretion will not be exercised in favour of an applicant on judicial review where the issue could have been but was not raised before the tribunal (Toussaint v. Canada (Labour Relations Board) (1993), 160 N.R. 396 (Fed. C.A.), at para. 5, citing Poirier v. Canada (Minister of Veterans Affairs), 1989 CanLII 5208 (FCA), [1989] 3 F.C. 233 (Fed. C.A.), at p. 247; MacNutt v. Shubenacadie Indian Band (1997), 1997 CanLII 6370 (FC), [1998] 2 F.C. 198(Fed. T.D.), at paras. 40-43; Legal Oil & Gas Ltd. v. Alberta (Surface Rights Board), 2001 ABCA 160, 303 A.R. 8 (Alta. C.A.), at para. 12; U.N.A., Local 160 v. Chinook Regional Health Authority, 2002 ABCA 246, 317 A.R. 385 (Alta. C.A.), at para. 4).
There are a number of rationales justifying the general rule. One fundamental concern is that the legislature has entrusted the determination of the issue to the administrative tribunal (Legal Oil & Gas Ltd., at paras. 12-13). As this Court explained in Dunsmuir, “[c]ourts ... must be sensitive ... to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures” (para. 27). Accordingly, courts should respect the legislative choice of the tribunal as the first instance decision maker by giving the tribunal the opportunity to deal with the issue first and to make its views known.
This is particularly true where the issue raised for the first time on judicial review relates to the tribunal’s specialized functions or expertise. When it does, the Court should be especially careful not to overlook the loss of the benefit of the tribunal’s views inherent in allowing the issue to be raised. (See VIA Rail Canada Inc. v. Canadian Transportation Agency, 2007 SCC 15, [2007] 1 S.C.R. 650 (S.C.C.), at para. 89, per Abella J.) [42] Given that this is a matter within this court’s discretion, I would not exercise my discretion so as to deny the applicant the opportunity to raise this issue for the first time on judicial review. To begin with, the applicant had no participatory rights during the discipline hearing, so she had no standing to raise this or any other procedural issue at that time.
[43] Furthermore, there is no doubt that, had the issue been raised, the applicant’s concern about the failure to provide her and the trustees with a copy of the investigator’s report would have been summarily dismissed, without any reasons, just as the internal appeal of the Board’s decision itself was. This conclusion is supported by the Board’s continued refusal to produce a copy of the report even to this day. The failure to indulge in such a perfunctory exercise should not bar the applicant from raising, before this court, a legitimate concern as to the fairness of the proceedings.
[44] Finally, one of the fundamental rationales for insisting that the matter be raised before the administrative tribunal is the importance of obtaining the views of that tribunal on the issue at hand. Here, the Board provided no reasons for the decision itself, and no reasons for rejecting the appeal of that decision. There is simply no realistic expectation that it would have provided any views at all in response to a procedural objection by the applicant.
[45] For the reasons of Backhouse J., above, which I adopt, I am satisfied that the Board’s refusal to provide the applicant, and the trustees, with a copy of the investigator’s report renders the decision procedurally unfair such that it must be quashed.
[46] I am similarly satisfied that the applicant had a legitimate expectation that the Board would follow its own procedure for dealing with Code complaints: see Theresa McNicol v. York Catholic District School Board, 2024 ONSC 2919 (Div. Ct.) at para. 4. Thus, the failure of the Board to commence its inquiry into the Disclosure Complaint within six months from the date the contravention is alleged to have occurred constitutes a breach of procedural fairness, such that the decision must be quashed. . Society of Composers, Authors and Music Publishers of Canada v. Sirius XM Canada Inc.
In Society of Composers, Authors and Music Publishers of Canada v. Sirius XM Canada Inc. (Fed CA, 2024) the Federal Court of Appeal commented on the failure to object, here in an administrative tribunal context:[7] ... Failure to object or follow up on an actual, potential or apprehended procedural flaw before the Board, such as uncertainty about the case to meet or what issues remain live, constitutes waiver of the concern and the concern cannot be raised later on judicial review: see, most recently, Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at para. 38 and cases cited therein. . Bartlett v. Canada (Attorney General)
In Bartlett v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal cited authority for 'fresh law' doctrine, and the similar fairness doctrine that issues of procedural fairness should be raised promptly before the tribunal in which they occur:[7] Ms. Bartlett also submits that the General Division proceeded unfairly. Incidents of alleged procedural unfairness in proceedings before an administrative decision-maker, here the General Division, must be raised before that decision-maker where possible and as soon as practicable: see Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 and the many leading cases cited at para. 38. Further, where it is possible to raise procedural unfairness before the administrative decision-maker, procedural unfairness cannot be raised for the first time on judicial review (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654), let alone as a new issue in an appeal from a judicial review (Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712). Even if Ms. Bartlett became aware of some procedural issues for the first time when the Appeal Division had carriage of the matter, she should have raised them as part of her application for leave to appeal. She did not. . International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association
In International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association (Fed CA, 2024) the Federal Court of Appeal dismissed (as moot) a federal labour JR, here against a ruling of the Canada Industrial Relations Board (CIRB) that held that "ILWU Canada [had] engaged in an unlawful strike".
Here the court emphasizes that fairness arguments should be raised promptly once the need for them arises, here in an urgent strike context:[73] It is well settled that parties must pursue procedural fairness concerns at the first available opportunity when it is reasonable to do so, and that their failure to object will disentitle them from raising procedural fairness issues in a subsequent judicial review application: see Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at para. 38; Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, 455 N.R. 115 at para. 67; Taseko Mines Ltd v. Canada (Minister of the Environment), 2019 FCA 320, 32 C.E.L.R. (4th) 18 at paras. 45–47, leave to appeal to SCC refused, 39066 (14 May 2020). Thus, objections to a proposed course of proceeding must be raised and not abandoned before an administrative decision-maker if the party wishes to pursue them as alleged violations of procedural fairness on judicial review. Within the confines of appropriate decorum (see e.g. Chaudhry v. Canada (Minister of Citizenship & Immigration), 2006 FC 1015, 56 Admin. L.R. (4th) 114 at para. 16), it should be "“…evident from the circumstances as a whole that one was not agreeing to or accepting the conduct in question”" (Lorne Sossin, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters, 2021) (loose-leaf revision 2024-07) (WL) [Sossin] at §16:131). If put forward unsuccessfully, a best practice may be to advise the decision-maker that the objection is maintained for the purposes of judicial review, although its mere raising is likely sufficient for that purpose: Sossin at §16:133.
[74] In the matter at hand, ILWU Canada’s counsel said he preferred proceeding the next morning but did not press the issue or claim that his client could not proceed that evening. This falls short of objecting to proceeding that evening. Thereafter, ILWU Canada effectively abandoned whatever concerns about scheduling it might have had when counsel stated that he was in the Chairperson’s hands when the schedule was further discussed. Given this, ILWU Canada cannot now successfully argue that, in proceeding as it did, the CIRB violated its procedural fairness rights. . Milner v. Canada (Attorney General)
In Milner v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers the administrative procedural fairness principle that fairness issues must be raised promptly:[34] Before this Court, Ms. Milner raises two new arguments of procedural fairness. First, she claims that she was treated unfairly on the basis that the same member decided all three appeal decisions. She also raises this argument in her application for judicial review in Court file number A-16-21. Second, she contends that she was treated unfairly because the GD member allowed the Minister’s representative to ask her questions about privileged conversations she had with her lawyer. The GD member did advise her that these conversations were privileged and that she did not need to disclose that information, but only after she provided two preliminary answers and she was put in the difficult position to either answer the questions or be seen to avoid the questions.
[35] I agree with the respondent that an alleged breach of procedural fairness must be raised at the earliest practicable opportunity: Hennessey v. Canada, 2016 FCA 180 at para. 21; Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para. 220, aff’d 2007 FCA 199, leave to appeal to the Supreme Court refused, 2007 CanLII 55337 (S.C.C.); Mohammadian v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17118 (FC), [2000] 3 F.C. 371 at para. 25 (Fed. T.D.). Ms. Milner knew that the same member presided over her case three times, yet did not raise any concern or object that it was improper for the member to preside until her appeals were dismissed. Similarly, she knew that she had been asked questions about conversations she had with her lawyer during the last GD hearing, yet she did not raise that argument before the AD. Moreover, she was advised by the GD member that the questions about her conversations with her lawyer were privileged, but nevertheless answered the questions and told the member that she did not mind discussing those conversations. It is therefore too late to argue that her right to procedural fairness has been breached.
....
[42] Finally, Ms. Milner submits that the AD incorrectly found that the GD did not breach her right to procedural fairness by holding a videoconference hearing. More specifically, she argues that if the hearing had been in person, the GD could have noticed that she was not well. Once again, this argument is without merit. First of all, as noted by the AD, Ms. Milner never insisted on an in-person hearing before the GD; on the contrary, she indicated in writing that she preferred to proceed either by videoconference or by personal appearance. The AD therefore correctly determined that the GD did nothing more than agree to one of Ms. Milner’s stated preferences. Moreover, there is no indication that Ms. Milner insisted on an in-person hearing before the GD. Finally, the AD was correct in pointing out that she was represented by counsel before the GD; since lawyers are presumed to act in accordance with their client’s instructions and best interests, the GD was justified to assume that she was ready to proceed in the absence of any request for a postponement or adjournment before or during the hearing. . Khan v Allstate Insurance Company
In Khan v Allstate Insurance Company (Div Court, 2023) the Divisional Court considered an appeal from a LAT SABS auto insurance ruling "that the Appellant was not catastrophically impaired due to mental behavioural impairments". In these quotes the court considered a 'fairness' issue, that being the advancement of fresh law at the tribunal appeal stage rather than first at the purely administrative decision notice stage:[22] According to the Appellant, raising a new issue for the first time at the hearing of the appeal ran contrary to the LAT rules and to the provisions of the SABS that require an insurer to be specific about its reasons for denying an insured’s CAT claim. The purpose of both is to ensure that the insured can make an informed decision about whether to appeal that denial and to ensure that the insured can adequately prepare and present its case at the appeal of that denial. Both the SABS (which is consumer protection legislation) and the common law rules of procedural fairness require that a person be given proper notice of the case they have to meet.
[23] The problem with this submission is that no objection was made when the insurer’s counsel made his opening statement; no objection was made before the Appellant began to present his evidence; and no objection or concern was raised at any other point during the hearing, including during the six-month period from August 2021 to February 2022 when the hearing was adjourned. The Appellant (who was represented by counsel at the hearing) acknowledges that the procedural fairness issue was never raised by him during the hearing and is being raised by him for the first time on appeal.
[24] As stated by the Court of Appeal for Ontario in Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81 at para. 75:It is trite law that appellate courts are not to entertain any new issues except in very limited circumstances. [25] Where the issue is one that relates to procedural fairness, it is particularly important that the issue be raised before the tribunal hearing the matter at first instance. That tribunal is in a position to listen to the submissions, and, if they have merit, grant a remedy that would allow the defect to be cured. The detrimental impact to the administration of justice if a procedural fairness issue is not raised before the tribunal who can do something to correct the unfairness is obvious—the injured party pursues an appeal before a different tribunal, which then may result in the holding of a second hearing. This in turn drastically increases the costs to the parties, results in delay, and demands the use of already scarce judicial and quasi-judicial resources.
[26] The Appellant’s reasons for not raising the issue before the LAT are twofold. First, it never occurred to the Appellant that the LAT would actually make a decision on the basis of an issue that had not been raised before the appeal and second, even if his concerns had been raised, the LAT would not have done anything to correct the problem.
[27] To accept either of these submissions as a reason for entertaining the Appellant’s argument on procedural fairness would be to say that the high threshold for hearing arguments that are raised for the first time on appeal can be met on the basis of speculation and assumptions. In spite of the insurer’s clearly articulated position during the appeal hearing, the Appellant assumed that the LAT would not give effect to the insurer’s arguments based on his unarticulated concern about procedural fairness. The Appellant also failed to raise his concern because of his speculation that the LAT would not give any weight to his concern. However, his failure to raise this concern before the LAT deprived this court of the evidence necessary to establish how the LAT would in fact have dealt with the concern. . Chin v. Canada
In Chin v. Canada (Fed CA, 2021) the Federal Court of Appeal noted that procedural fairness issues should not be raised on an appeal unless first raised by objection below:[5] In oral argument, the appellant submits that the Federal Court "“exuded hostility”". We see no evidence of this. In fact, the Federal Court’s conduct described in the last paragraph suggests this is not correct. In any event, if this sort of procedural unfairness were so, it was incumbent on the appellant to register an objection with the Federal Court then and there: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488. . Pacific Northwest Raptors Ltd. v. Canada (Attorney General)
In Pacific Northwest Raptors Ltd. v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal noted that a fairness issue must be raised promptly before the tribunal:[36] As noted by this Court in Ahousaht First Nation v. Canada (Indian Affairs and Northern Development), 2021 FCA 135, at paragraph 39:... [t]he jurisprudence is well settled that an allegation of a violation of procedural fairness must be raised at the earliest practical opportunity: Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 455 N.R. 115 at para. 67; Hennessey v. Canada, 2016 FCA 180, 484 N.R. 77 at para. 20; Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, 32 C.E.L.R. (4th) 18 at paras. 47-48. . Cyr v. Batchewana First Nation of Ojibways
In Cyr v. Batchewana First Nation of Ojibways (Fed CA, 2022) the Federal Court of Appeal held that a procedural fairness issue must have been raised before the tribunal below:[70] Allegations of procedural fairness, such as allegations of bias, must be raised to the decision-maker before they can be entertained by this Court (Nicole L. Tiessen Interior Design LTD. v. Canada, 2022 FCA 53, citing Athey v. Leonati 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 at paras. 51-52 and Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 at paras. 36-39). ... . Ahousaht First Nation v. Canada (Indian Affairs and Northern Development)
In Ahousaht First Nation v. Canada (Indian Affairs and Northern Development) (Fed CA, 2021) the Federal Court of Appeal made the point that issues of lack of procedural fairness must be raised promptly:[39] I note first that the Ahousaht have pointed to nothing to indicate that they expressed any concerns before the SCT that the late replacement of the hearing judge would give rise to procedural unfairness. The jurisprudence is well settled that an allegation of a violation of procedural fairness must be raised at the earliest practical opportunity: Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 455 N.R. 115 at para. 67; Hennessey v. Canada, 2016 FCA 180, 484 N.R. 77 at para. 20; Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, 32 C.E.L.R. (4th) 18 at paras. 47-48. In my view, the Ahousaht failed in this respect. The concerns they expressed before Chairperson Slade about the replacement of Justice Whelan appear to have been more with regard to the efficiency of the process. They did not mention procedural fairness. If the Ahousaht had concerns about procedural fairness, they should have stated them explicitly when their other concerns were discussed. . Shoan v. Canada (Attorney General)
In Shoan v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal commented that complaints of procedural fairness must be raised promptly when they occur in the administrative process, or else they cannot be raised later at appeal (or judicial review):[7] We would add that a number of the appellant’s procedural fairness concerns were not raised with the Governor in Council and, thus, he cannot raise them on judicial review: see, e.g., Irving Shipbuilding Inc. v. Canada (A.G.), 2009 FCA 116, [2010] 2 F.C.R. 488; Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 167 at paras. 67-68. If the appellant was concerned that he was not being treated fairly, it was incumbent on him to raise a concern promptly. The record shows that he was not shy in raising concerns when need be.
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