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Fairness - Repair by Subsequent Procedures. Ford v. University of Ottawa
In Ford v. University of Ottawa (Div Court, 2022) the Divisional Court considered (and allowed!) a classic student case, that of a judicial review of grades.
In these quotes the court considers how later administrative procedures may 'repair' earlier fairness breaches:Did the SAC Process Cure the Procedural Defects in the Decisions Below?
[90] The Respondent argues that any procedural deficiencies arising from the processes below the SAC were cured by the Applicant’s appearance before the SAC and his ability to make oral submissions there. Where a hearing before an appellate or reviewing body amounts to a hearing de novo, this may indeed cure the defects in the matter arising from earlier decisions: see McNamara v. Ontario (Racing Commission), 1998 CanLII 7144 (ON CA), [1998] O.J No. 3238 (C.A.) at para. 26); Khan at para. 41.
[91] Whether or not the defects have been cured will depend on several factors, including the seriousness of the initial error, the procedure followed by the SAC, its powers, how it exercised those powers and the weight it gave to the initial decision: see Khan at para. 41. In applying those factors to the findings above, the errors below were serious in that they deprived the Applicant of procedural fairness. The SAC procedure was not a full reconsideration: it was a perfunctory appearance, at which the SAC asked the Applicant two questions. The SAC Minutes reveal that it apparently accepted as “fact” the findings below, despite the Applicant’s attempts to challenge them.
[92] I conclude that the SAC proceeding did not and could not have cured any procedural defects below because it was not a hearing de novo.
[93] The Applicant’s participation here contrasts to the level of participation of the students in two other recent cases involving medical residents at the University (see AlGaithy above and Rengarajan v. University of Ottawa, 2022 ONSC 219 (CanLII) (Div. Ct.)). In those cases, both students had counsel and gave evidence before the Senate Committee. In both AlGaithy, (at para. 42) and Rengarajan (at para. 45) the Divisional Court found that the students had the benefit of a hearing de novo.
[94] The Minutes reveal that the approach taken by SAC here was akin to an appeal. I find that the SAC did not conduct a trial de novo, nor did it inquire into the steps taken by the decision-makers at the School of Nursing. It was not capable of curing the procedural defects in the Evaluation or the Grade Review processes below. . Jajo v. Ontario (Transportation)
In Jajo v. Ontario (Transportation) (Div Ct, 2021) the Divisional Court considered if and when an initial breach of procedural fairness was later remedied by a fuller hearing with natural justice protections:[51] In McNamara v. Ontario (Racing Commission) (1998), 1998 CanLII 7144 (ON CA), 164 D.L.R. (4th) 99 (Ont. C.A.) at para. 26, the Court of Appeal held that procedural defects can be cured by a subsequent hearing in which natural justice is accorded. In McNamara, a dispute arose involving the owner/groom of some horses involved in competition. Three track judges refused to let certain horses be transferred into Mr. McNamara’s name and, following an episode in which Mr. McNamara verbally abused and intimidated the judges, he was informed that he was suspended for 30 days and that all horses under his direction at the event were scratched. Under the applicable rules, he had a right to appeal his suspension to the Ontario Racing Commission. He had a three-day hearing in front of the Commission. There was also a cross-appeal seeking an increased suspension. The Racing Commission decided to increase the period of suspension to 60 days. An initial application for judicial review from the commission’s decision was heard and dismissed by a single judge of the Divisional Court. Leave was given to appeal that decision to a full panel which concluded that while there had, arguably, been an infringement of the rules of natural justice on the part of the track judges as a result of their failure to hold a proper hearing, that decision had been stayed pending an internal appeal, and a suspension only imposed after a full, open and fair hearing before the Commission at which witnesses were called, counsel were present and arguments were presented. It was under those circumstances that any procedural defects in the hearing before the track judges and any resulting prejudice were cured by the fact that the subsequent hearing took place with the benefit of every procedural safeguard.
[52] The circumstances of the applicant and the nature of the decision under review are also to be considered when determining whether an initial lack of procedural fairness can be repaired by a subsequent restoration of due process. In Volochay v. College of Massage Therapists of Ontario, 2011 ONSC 2225 (Div. Ct.), Ratushny J. held, at para. 44, that where a tribunal is authorised to proceed in a certain way and does not do so and thereby violates a person’s right to procedural fairness in a situation where his or her profession is at stake, the decision resulting from that flawed process should not be allowed to stand.
[53] By contrast with the circumstances in McNamara, the revocation decision had an immediate effect on Mr. Jajo. There was no stay pending review. There was not, as previously discussed, even a final decision taken on the revocation before the process morphed into an application for a new licence, with Mr. Jajo bearing the onus of establishing that he met the requirements to be licensed rather than the Ministry bearing the onus to show that he was not so qualified.
[54] As the already-quoted passage in paragraph 77 of the decision in Vavilov reminds us, in considering the impact of a breach of procedural fairness, the importance of the decision to the individuals affected is a pertinent factor. Although the process under s. 35 of Ontario Regulation 473/07 is not the equivalent of a hearing before a professional body, where, as in the present case, the consequences of a decision are significant, involving the very right of an individual to pursue his or her chosen livelihood, a higher degree of scrutiny is appropriate and, in the event of a breach of natural justice, the appropriate remedy is to quash the decision.
[55] In the unusual circumstances of this case, there was never a reasoned decision given for the revocation of Mr. Jajo’s licence. This is not merely a case where the Ministry failed to follow its own procedures. Rather, it made a decision, which it did not tell Mr. Jajo about at the time, and when he was informed in a rather back-handed fashion through the 20 October 2017 email, no attempt was made to explain why. That decision removed Mr. Jajo’s ability to resume earning his livelihood as a driving instructor. Section 35 of Regulation 473/07 required, at a minimum, that the Ministry provide a summary of the reasons for its decision, yet it did not.
[56] The Ministry itself comes close to acknowledging that the revocation was improper. In her decision of 7 January 2019, the adjudicator reasons that:Even if Mr. Jajo’s DI licence was revoked improperly and Mr. Jajo remained licensed, once the Ministry came into possession of information regarding Mr. Jajo, including the November 2016 recognizance and that which was revealed in the R. v. Jajo transcripts, the Ministry’s February 5, 2018 refusal proposal would have been a revocation proposal instead. [57] Accordingly, I do not accept that because the subsequent reapplication decision was reached after following the process in s. 35 of Regulation 473/07, the procedural irregularities that occurred in connection with the revocation decision are of no consequence.
[58] Rather, there was a profound lack of procedural fairness in the manner in which the Ministry purported to revoke Mr. Jajo’s DI licence.
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