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Federal Court - Hearings. Pilarski v. Canada
In Pilarski v. Canada (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of an adjournment of a motion to quash the appeal by the respondent made for the purpose of hearing the matter in writing rather than orally, at least partly because of the appellant's disability issues:[1] The appellant, Joseph Pilarski, appeals the Tax Court of Canada’s April 28, 2022 procedural order (per Bocock, J) in Tax Court File 2015-355(IT)G. That order adjourned the oral hearing of the respondent’s motion to quash the appellant’s appeal, and ordered that the motion be determined based on written representations. That is, the Tax Court’s order changed the oral hearing to a written hearing.
[2] The Tax Court’s order is discretionary, meaning that the Tax Court can decide. When an appellant appeals a discretionary order, such as this one, this Court reviews the order on the appellate standards from Housen v. Nikolaisen, 2002 SCC 33: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at paras. 66, 79; Canada v. Preston, 2023 FCA 178 at para. 12. Accordingly, we can interfere with the Tax Court’s order only if it made an error of law or a palpable and overriding error on a question of fact or mixed fact and law. A "“palpable”" error is one that is obvious; an "“overriding error”" is an error that goes to the core of the outcome: Benhaim v. St-Germain, 2016 SCC 48 at para. 38, citing South Yukon Forest Corp. v. R., 2012 FCA 165 at para. 46.
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[6] There is no right to an oral hearing for a motion. The Tax Court of Canada Rules (General Procedure), SOR/90-688a expressly permit motions to be determined based on written representations and without appearance of the parties in person: Rule 69. What is important is that the parties have an opportunity to put their submissions before the decision maker. Here, the parties previously made written submissions, and the Tax Court expressly invited them to file further written materials before it decided the motion.
[7] Before us, the appellant said the Tax Court’s decision to decide the motion in writing prejudiced him because his health conditions limit his ability to deal with written material.
[8] Both the Tax Court and this Court have a duty to ensure that litigants with disabilities are accommodated, to ensure that they receive the same level of procedurally fair justice as that accorded to other Canadians: Haynes v. Canada (Attorney General), 2023 FCA 158 at paras. 18-32. That said, individuals with disabilities have an obligation to help secure appropriate accommodation: Haynes at para. 30; Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, 95 D.L.R. (4th) 577 at 994. There is no evidence before us that the appellant ever advised the Tax Court that it would be difficult for him to process and respond to, or to provide, written representations and other written material.
[9] The Tax Court also has an obligation to act in a manner that secures the just, most expeditious and least expensive determination of every proceeding on its merits: Rule 4(1). When the Tax Court made its order, the respondent’s motion had been before the Court for seven years. It merits a decision. Satisfied the motion was suitable to be decided in writing, and after repeated, but unsuccessful, efforts to hold an in-person hearing, the Tax Court’s decision was well within its discretion. I see no error that would permit us to interfere with it. . Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation
In Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal against two decisions against a First Nation in a residential schools system class action proceeding, the first a motion to intervene and the second to be added as a class to the action.
Here the court considered the appellant's procedural fairness objection that the motion's below were heard in writing, not orally, despite the significance of the matter for the parties:[23] The Attorney General and the Gottfriedson respondents argue that the judge did not err in disposing of the motion in writing, given the powers conferred on case management judges by rules 384.1 and 385 of the Federal Courts Rules as well as the general powers of the Court under rule 3 of the Federal Courts Rules. The Gottfriedson respondents argue that an oral hearing was not required as a matter of natural justice here, especially given the judge’s familiarity with the matter.
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Error in deciding the motion in writing
[37] I begin with a review of some basic principles.
[38] First, the standard of review for an allegation of procedural unfairness is functionally correctness: a court must ask whether the procedure was fair having regard to all of the circumstances (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 79; Canadian Pacific Railway Company v. Canada, 2018 FCA 69, [2018] F.C.J. No. 382 at para. 54). For an alleged error of fact-finding, the standard is palpable and overriding error. A court can take into account the motion judge’s role as case management judge in its analysis (see, for example, Paradissis v. Canada, 2019 FCA 70, 303 A.C.W.S. (3d) 881 at para. 6, citing Turmel v. Canada, 2016 FCA 9, 481 N.R. 139).
[39] Second, a court is not required to hold an oral hearing in disposing of a motion.
[40] In dealing with class actions, case management judges are given wide powers under the Federal Courts Rules, including the power to "“give any directions or make any orders that are necessary for the just, most expeditious and least expensive outcome of the proceeding”", per rule 385(1)(a). Judges are also authorized to deal with motions in writing under rule 369 of the Federal Courts Rules, and can exercise their discretion to do so based on the nature of the motion, the evidence, the issues, and the arguments (Adams v. Canada (Parole Board), 2022 FC 273, 2022 W.C.B. 494 at para. 19). Finally, this Court recently held in ViiV Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122, 460 D.L.R. (4th) 272, that a court can act on its own initiative when confronted with a "“problematic motion”", though it should not be quick to do so, and it must always invite submissions and consider them (at paras. 22-27). I hasten to add that there was nothing problematic about Salt River’s motion. It was promptly brought upon Salt River becoming aware of the proceeding and substantially in proper form (despite it being framed as an intervention motion, when it was in substance a motion to be added to the class, as the judge properly recognized).
[41] Wide as the discretion of a case management judge may be, it is not unlimited. There are other factors that bear on how it should be exercised, and in this case those include the nature of the issues, the allegations, and, importantly, the expectations of the parties as to how their case will be presented. Put otherwise, counsel may present a much different argument if they know that the motion is to be disposed of in writing only. Here, all parties proceeded on the understanding that there would be an oral hearing with respect to Salt River’s motion.
[42] The nature of the evidence put before the Court by Salt River also constrained its exercise of discretion. Representatives of Salt River averred, under oath, that they had not received notice of the class action. This was a serious matter.
[43] Class counsel contend that the judge was entitled to rely on her familiarity with the case and assume that the notices that the Court had directed to be sent were in fact sent and reached their recipients.
[44] As a general proposition I agree, but again, there are limits. That assumption cannot be relied on in the face of sworn evidence to the contrary. While the judge does not say so directly, it is implicit in her reasons that she did not believe Salt River’s affiants. The judge’s reliance on the proposition that all that was to have been done, had in fact been done, was undermined by the uncontroverted evidence that the notice of the proceeding had not been received. Therefore, the Federal Court erred in making findings of fact not supported by the evidence before it on the motion: namely, that class counsel had effectively communicated the opt-in deadline to potential Band class members, including Salt River, contrary to Salt River’s affidavits asserting the opposite. I note, parenthetically, that the fresh evidence clarifies that while notice had been sent to Salt River, it was unaware of the proceeding.
[45] Finally, there are circumstances where an oral hearing is required. For the reasons that the judge expressed in the Settlement Approval decision, this settlement was historic in nature and designed to address decades of cultural assimilation through the residential school system. If Salt River was to be denied the opportunity to participate in this settlement, it should have had the right to make the oral submissions that both it and the Federal Courts Rules contemplated and that the parties requested and anticipated. To this I would add that the judge did not consider the overarching objective of reconciliation in deciding to render the decision on the motion in writing and without the benefit of full submissions.
[46] The judge therefore erred in deciding the matter in writing and without hearing from the parties. . Klos v. Canada (Attorney General)
In Klos v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered several federal statutory provisions bearing on the type of 'hearing' that may be conducted, here in the context of a labour JR where the applicant wanted an oral hearing - not the written hearing conducted by the Board:[6] The applicant alleges that the Board failed to observe the principles of natural justice and procedural fairness. We disagree. The Board announced that it intended to proceed by way of written submissions—an appropriate and fair manner of proceeding in a case such as this—and gave the applicant at least two opportunities to make submissions. The applicant declined to do so.
[7] The applicant submits that s. 228(1) of the Act, which provides that the parties must have “an opportunity to be heard” means that the Board was obligated to give him an oral hearing. In many statutes such as this, such as section 16 of the Federal Courts Act, R.S.C. 1985, c. F-7, “heard” means that submissions can be received in oral or written form. In this case, this is buttressed by section 22 of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, which specifically provides that the Board may decide any matter before it without holding an oral hearing, and also by an authority of this Court that binds us: Boshra v. Canadian Association of Professional Employees, 2011 FCA 98, 90 C.C.E.L. (3d) 89 at para.
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