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Fairness - Statutory Amendment to Fairness Doctrine. Blackstone Paving and Construction Ltd. v. Barrie (City of)
In Blackstone Paving and Construction Ltd. v. Barrie (City of) (Div Court, 2024) the Divisional Court dismissed a Construction Act JR of a 'prompt payment' adjudication.
The court considers the SOR for 'fairness' (here 'statutory' fairness under the Construction Act), and the novel factual fairness SOR (here, Corbett J) that 'reasonableness' applies to "factual findings related to procedural fairness issues" in a JR:Standard of Review
[3] The statutory test for procedural fairness is conjunctive, and is set out in s.13.18(5) of the Act:a. The first question is whether the procedures followed in the adjudication accord with the procedures to which the adjudication was subject under the applicable Part of the Act.
b. If the answer to this question is “no” then the second question is whether the failure to follow the prescribed procedures prejudiced the applicant’s right to a fair adjudication. [4] The standard of review for questions of procedural fairness is “fairness” or “correctness” (see Law Society of Saskatchewan v. Abrametz, 2022 SCC 29). Findings of fact are reviewed on a standard of reasonableness, and this principle applies to factual findings related to procedural fairness issues. However, the requirements of procedural fairness, in light of the facts, as found, are assessed on a “correctness” or “fairness” standard, applying the statutory test set out in s.13.18(5) of the Act. . Caledon (Town) v. 2220742 Ont. Ltd. o/a Bronte Construction
In Caledon (Town) v. 2220742 Ont. Ltd. o/a Bronte Construction (Div Court, 2024) the Divisional Court considered a JR of a Construction Act adjudication.
Here the court considers a statutorily-modified 'fairness' doctrine:Procedural Fairness Arguments
[62] Caledon’s arguments respecting procedural fairness are premised on a common law understanding of the requirements of procedural fairness (Factum, para. 107, relying on Ball v. Audette, 2019 ONSC 3775 (Div. Ct.). The Act sets out a statutory test for procedural unfairness in s. 13.18(5)5. The first prong of the test requires an applicant to establish that “the adjudication did not accord with the procedures to which the adjudication was subject under this Part.” ... . Halton (Regional Municipality) v. Canada (Transportation Agency) [fairness]
In Halton (Regional Municipality) v. Canada (Transportation Agency) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from Ontario municipalities of a decision of the Canada Transportation Act [CTA] [s.41(1)].
Stratas JA notes that statutes can amend the common law (judge-made) 'fairness' doctrine:[45] The overall test for procedural fairness in a case such as this is whether, considering the context, the parties knew the case to meet and had a full and fair chance to respond: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at para. 56. Further, procedural rights must be balanced against the public interest in effective, expeditious and efficient decision-making. Those are judge-made tests. But, absent constitutional concern, and there is none here, it is open to legislators to pass legislation expanding or restricting judge-made tests. Here the legislator has spoken and has supplied a legislative standard that we must keep front of mind when evaluating procedural fairness. The Agency must "“conduct all proceedings in a manner that is proportionate to the importance and complexity of the issues at stake and the relief claimed”": Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), S.O.R./2014-104, s. 4. I conclude that the process followed by the Agency, which built upon the joint panel process, including the reasons it wrote, passes this test.
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