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Fairness - Right to be Heard. Galace v. Winners Merchants International L.P.
In Galace v. Winners Merchants International L.P. (Ont Div Ct, 2026) the Ontario Divisional Court allowed an HRTO JR, this brought against the dismissal of an application "alleging discrimination by her employer .... on the grounds of age and disability as well as alleging reprisal".
The court considered a 'procedural fairness' issue, here where the tribunal dismissed "the application in the face of the 2024 CAD on mootness or to overturn that 2024 CAD implicitly without any opportunity to at least make submissions":[11] The applicant has raised several issues on this application for judicial review. We conclude that only one needs to be addressed as the basis to grant the application. The applicant submits that it was procedurally unfair to dismiss the application in the face of the 2024 CAD on mootness or to overturn that 2024 CAD implicitly without any opportunity to at least make submissions.
[12] The employer submits that the later rulings and the Final Decision do implicitly overturn the 2024 CAD despite the lack of any reference to mootness and any express discussion regarding why the adjudicator may have changed his mind.
[13] There is no issue of the standard of review on questions of procedural fairness. The requisite level of procedural fairness must be provided. We conclude that procedural fairness was not provided with respect to the mootness ruling in the 2024 CAD. The adjudicator either entirely disregarded that ruling or purported to overturn it implicitly without any process. Either is procedurally unfair. The parties were not notified of the prospect that the 2024 CAD might be changed by the adjudicator on his own initiative nor was there any opportunity to make submissions.
[14] The employer submits that the adjudicator did implicitly change the 2024 CAD ruling on mootness. The employer submits that was fair to the employer because the applicant would not produce the records and the mootness ruling was faulty (as set out in its request for reconsideration of that ruling, based on the disputed position that the CAD was final). The reconsideration process underscores the lack of a fair process here. If there was a right to request reconsideration of the 2024 CAD, the applicant would have had the right to make submissions about whether the 2024 CAD should be changed before that CAD could be altered.
[15] This procedural unfairness renders the rest of the HRTO proceeding after the 2024 CAD unfair. This is particularly apparent in the Final Decision, which is based not on the merits but on the alleged failure to comply with other CADs requiring the production of medical records.
[16] The application is therefore granted as follows. All CADs, endorsements and HRTO orders made after the 2024 CAD, including the Final Decision and the Reconsideration Decision, are quashed. The HRTO shall resume processing the HRTO application before a different adjudicator. We make no comment on what the next steps should be except that any attempt to change the 2024 CAD must be done on notice with an opportunity for both parties to make submissions. The respondent employer shall pay the applicant costs in the agreed sum of $10,000, all inclusive. . Midnight Building Corp. v Tarion Warranty Corp.
In Midnight Building Corp. v Tarion Warranty Corp. (Div Ct, 2025) the Divisional Court allowed an application, this regarding a finding of liability "by Tarion, for the cost to construct a retaining wall incident to construction of a swimming pool (the “impugned finding”), pursuant to the Ontario New Home Warranties Plan Act".
Here the court considered a fundamental 'right to be heard' as a fairness issue:Procedural fairness – Tarion Revisiting An Issue
[3] The impugned finding was one of 23 issues raised with Tarion by the purchaser of the subject home. In a “Conciliation Assessment Report” of the issues, dated January 12, 2023, Tarion accepted that the property had been inspected and approved by the City, and thus that failure to build a retaining wall was not a warranted defect.
[4] Subsequently, on September 5, 2024, Tarion changed its Conciliation Assessment Report to require Midnight to pay the purchaser’s cost to construct a retaining wall ($45,688.71, including HST). This change in Tarion’s disposition of this issue followed communications to Tarion from the purchaser, including provision of additional documents and submissions. Midnight was not given notice that Tarion was revisiting the retaining wall issue, and Midnight was not given notice of the additional documents and submissions provided to Tarion by the purchaser.
[5] This was unfair. Midnight was entitled to consider the retaining wall issue resolved unless it was given notice that Tarion was revisiting the issue. If circumstances had changed, or some other basis had been raised that justified Tarion reconsidering its disposition of the retaining wall issue, Midnight was entitled to notice and a meaningful opportunity to provide its side of the story to Tarion before a decision was made: Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 SCR 817, paras. 20, 30 and 32.
[6] Therefore, the impugned finding is quashed, and the issue is remitted back to Tarion to decide following a fair process.
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