Procedural Fairness - Re: Principles of

Hryciuk v. Ontario (Lieutenant Governor), 1994 CanLII 10547 (ON SC)

[90] Henderson was not a constitutional case, however. The issue before the court was whether or not the College could amend a notice of hearing to add additional complaints after the hearing had commenced. It was a procedural matter, and for reasons of procedural fairness the court concluded that under the Code and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the College could not amend the notice in such a fashion at that late stage. Given the serious potential consequences of such a proceeding -- including the potential loss of licence to practise -- the court concluded that the professional "is entitled to have his or her professional regulator strictly adhere to the express provisions of its legislative mandate" (para. 27). In that context the court observed, in obiter dicta, that "[i]ndeed, more than one case has referred to professional [page28 ]discipline proceedings as quasi-criminal in nature". The court was not required to, and did not consider the characterization of such proceedings for constitutional/Charter purposes, however. In my view, the decision in Henderson does not affect the Divisional Court's decision in these proceedings.

[91] Other authorities indicate that professional disciplinary hearings are not criminal or quasi-criminal in nature because -- despite their potentially serious sanctions -- they do not result in true penal consequences. Rather, they are administrative and regulatory in nature, designed to maintain discipline, professional integrity and professional standards and to regulate conduct within the profession in question. See R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, at pp. 559-61; Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC), [1989] 1 S.C.R. 301, [1989] S.C.J. No. 15, at pp. 313-14 S.C.R.; Adams v. Law Society (Alberta), 2000 ABCA 240 (CanLII), [2000] A.J. No. 1031, [2000] 11 W.W.R. 280 (C.A.), at paras. 6, 7 and 11; Latulippe v. College des médecins, [1998] A.Q. No. 1866 (C.A.); Re Stevens and Law Society of Upper Canada (1979), 1979 CanLII 1749 (ON SC), 55 O.R. (2d) 405 (Div. Ct.); Warnes v. College of Physicians and Surgeons of Ontario, [1992] O.J. No. 3748, 62 O.A.C. 258 (Div. Ct.); Belhumeur v. Barreau du Québec (Comité de Discipline), supra.

Edwards v. Law Society of Upper Canada, 2000 CanLII 5748 (ON CA)

[20] The provisions relating to discipline are very detailed and provide for procedural fairness at both the investigative stage and at any hearings following the filing of a complaint under oath in the office of the Secretary. The nature of these proceedings is described by Hockin J. in Lalonde v. Law Society of Upper Canada (1998), 27 C.P.C. (4th) 196 (Ont. Gen. Div.) in the following language: "The ability of the Law Society to investigate and discipline its members is a judicial power since it consists of the independent and impartial application of predetermined rules and standards" (at para. 23). This finding follows an established body of case law that the disciplinary proceedings of the Law Societies of Canada are judicial or at least quasi-judicial in nature and that, in relation to them, the Law Society is immune from negligence suits.

[21] The Supreme Court held in Harris v. Law Society of Alberta, 1936 CanLII 18 (SCC), [1936] S.C.R. 88, [1936] 1 D.L.R. 401, that a statutory professional body (i.e., the Law Society) could not be liable for damages for wrongful disbarment because the investigative and decision-making function was "not merely ministerial, but discretionary and judicial" (at pp. 104-05 S.C.R., p. 414 D.L.R.). The only claim for damages that could be made would be one based on bad faith or malice.

[39] The response of Huddart J.A. is as follows (at paras. 65 and 72):

It is well to recall that the wisdom or reasonableness of the exercise of a statutory discretion by an officeholder with regulatory, quasi-judicial powers has not traditionally been considered to be a justiciable question. In appropriate circumstances a superior court might issue a prerogative writ to such an officeholder in the exercise of its supervisory power, or more recently, an order under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to ensure legality and fairness. If an office was exercised for an improper purpose, the court would intervene in an action for abuse of office, as that concept was explained by various members of the Supreme Court of Canada in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121. Otherwise an officeholder answered only to the Crown who could deprive him of his office, at pleasure until recently: Wells v. Newfoundland (1999), 1999 CanLII 657 (SCC), 177 D.L.R. (4th) 73 (S.C.C.).

...

The courts should not view the private duty of care as floating above such an officeholder, to be crystallized whenever harm comes to an individual that might have been prevented had the officeholder exercised a discretion differently. If that were so, the courts would be using the remedy of tort law to exercise the discretion itself rather than supervising its exercise, since some individual interest will almost certainly be harmed.

Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025 (CanLII)

[45] In Forestall v. Toronto Police Services Board (2007), 2007 CanLII 31785 (ON SCDC), 228 O.A.C. 202 (Div. Ct.), the Divisional Court held, at para. 44, that as an extension hearing does not determine the merits of allegations or impose discipline, the decision is “administrative in nature”, purely procedural, and, at para. 53, that while “some degree of procedural fairness is required”, the Board is “not required to hold a judicial-type of hearing” and that only “minimal rights of procedural fairness”, including notice, disclosure, and an opportunity to respond, apply. Similarly, in Ackerman v. Ontario Provincial Police Service, 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.), the court held that a decision to allow an extension is “clearly interlocutory” as all that has been decided is that it is “reasonable to delay service of the notice of hearing” (at para. 20). There has been no determination of the officer’s rights. The Board is “exercising a procedural, administrative function in extending the time for service of the notice” (at para. 21). In its reasons, the Divisional Court cited a number of other decisions to the same effect: Coombs v. Toronto (Metropolitan) Police Services Board, [1997] O.J. No. 5260 (Div. Ct.); Payne v. Peel (Regional Municipality) Police Services Board (2003), 2003 CanLII 8396 (ON SCDC), 168 O.A.C. 69 (Div. Ct.); Figueiras v. (York) Police Services Board, 2013 ONSC 7419, 317 O.A.C. 179 (Div. Ct.).

Hryciuk v. Ontario (Legislative Assembly), 1996 CanLII 4013 (ON CA)

As to why the court should interfere even though Judge Hryciuk had taken no clear objection to the process, Hartt J. cited the following observation of Le Dain J. in Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at p. 661, 24 D.L.R. (4th) 44:

...I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

Ontario Football Conference v. Brampton Minor Football Association, 2020 ONSC 1061 (CanLII)

[23] The fundamental principles associated with the administration of justice and civil procedure include the need to ensure that justice not only be done but be seen to be done, following a procedure that is just and fair. The duty of procedural fairness requires that litigants have the opportunity to present their case fully and fairly. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.), at paragraph 28; Ariston Realty Corp. v. Elcarim Inc., [2007] O.J. No. 1497 (S.C.J.), at paragraph 29.

William Punnett Housing Co-operative Inc. v. Njoku, 2014 ONSC 5197 (CanLII)

[44] The following cases have considered when a co-operative corporation has acted in a way that is subject to judicial review on the grounds of unreasonableness or breach of the principles of natural justice or procedural fairness.

[45] In Neill-Wycik Co-operative College Inc. v. Swick a member was denied procedural fairness when he was not given adequate notice of the details of the case he had to meet, which, in the particular circumstances, required that he receive particulars of the date and the nature of the alleged violation of the co-operative’s by-law, the identification of the complainants, and the evidence to be relied on. See also: Forestwood Co-operative Homes Inc. v. Gellert;[58] Quigley v. Charles Darrow Housing Co-operative Inc.;[59] Superior View Housing Co-operative Inc. v. Black; and Beaver Hall Artists' Co-operative Inc. v. Berry.

[46] In Chisolm Place Housing Co-operative Inc. v. Hickox, a family of members was denied procedural justice in the rush to have them evicted after a series of nasty confrontations with another member. Justice Leach dismissed the co-operative corporation’s application for a writ of possession and found numerous violations of the principles of natural justice. The members were not provided with adequate notice of the allegations against them and the supporting evidence. They were not provided with an opportunity to be heard. Justice Leach discussed the minimum requirements of natural justice and procedural justice at paragraphs 43 to 47 of his judgment as follows:

43. As emphasized in Neill-Wycik Co-operative College Inc. v. Swick, supra, at paragraph 15, natural justice and procedural fairness do not require Co-operative Boards, (or meetings of a Co-operative's general membership for that matter), to address issues of this nature by conducting trials or otherwise providing members with the full panoply of rights that exist in either the civil or criminal context.

44. For example, there is no requirement that such assemblies act only on evidence or exhibits under oath, that all witnesses must testify in the presence of affected members, or that affected members must be afforded rights of cross-examination.

45. Generally, the requirements of procedural fairness can vary depending on the nature of the particular complaint.

46. At a minimum, however, natural justice and procedural fairness require that a Co-op member facing eviction be fully informed as to the nature of the case he or she has to meet, and be provided with a reasonable opportunity to meet it. This includes reasonable notice of a hearing, advance provision of a clear understanding as to why membership and occupancy rights may be terminated, advance disclosure of the documentation, information and witnesses upon which the Board and/or General Membership will rely, and an opportunity to be present and heard.

47. Moreover, as acknowledged by counsel for the applicant, there must, at the very least, be compliance with the procedural requirements mandated by the Co-operative Corporations Act, supra.

[47] In Gardenview Co-operative Homes Inc. v. Osei, the court dismissed an application for a writ of possession where the member had not received notice of the eviction meeting and did not have an opportunity to make representations on a decision that would have a significant impact on her life.

[48] In Chadwick Towers Co-operative v. Naughton, [64] the court held that a member had been denied procedural fairness when he was not given a reasonable amount of time to be heard at the general meeting called to review the board’s decision that he be evicted.

[49] In Kenfinch Co-operative Housing Inc. v. Obermuller, an application for a writ of possession was dismissed because the co-op’s decision to evict for a series of late payments was unreasonable when the co-op had not given any warning about the consequences of late payments and where the board agreed to suspend the eviction if the member paid her housing charges on time but also gave up the right to challenge a decision to terminate if the payments were late.

[50] The requirements of natural justice require an unbiased adjudicator, and in Coopérative D'Habitation Lafontaine Inc. v. Ménard, the court held that a member may be denied procedural fairness if board members or members of the general membership that have an animus do not declare a conflict of interest and participate in the voting to determine whether or not there should be a termination of membership or an eviction. However, in contrast, in Chadwick Towers Co-operative v. Naughton,[67] the court held that in a co-operative corporation, members, including members who were on the board of directors that had voted to evict a member, could participate and vote at the general meeting called to review the directors’ decision.[68]

[51] In Fieldstone Co-Operative Homes Inc. v. Kup,[69] the presence of the person who had made the complaint against the member, raised a reasonable apprehension of bias and tainted the deliberations of the board of the co-operative corporation.

[52] In Crown Heights Co-operative Homes Inc. v. Isaacson,[70] the court held that the co-operative had acted unreasonably and unfairly when based on an inadequate investigation and a failure to consider relevant and compelling evidence, it purported to reverse a six-year old write-off of arrears of the member’s monthly housing charges.

[53] In Frank Long Co-operative Homes Inc. v. Haslam,[71] the co-operative purported to terminate a membership on the grounds of nuisance, illegal acts, and violation of a pet control by-law. However, in this case, the court refused to grant a writ of possession because the member had not received adequate notice of the details of the complaints; the co-operative had not followed its own process for addressing complaints about nuisance from pets; and there was no reliable evidence about the other grounds for complaint.

[54] In Courtland Mews Co-operative Homes Inc. v. McKay,[72] the court held that a failure by a co-operative to comply with the regulatory rules for subsidy assistance that resulted in the improper denial of a subsidy may be a ground to refuse an application to evict under s. 171.13 of the CCA based upon arrears of payment of the housing charge.[73] Subsequently, in Courtland Mews Co-operative Homes Inc. v. McKay,[74] the co-op followed the proper procedure and terminated the subsidy and when there was a failure to pay the unsubsidized housing charges, the co-op voted again to evict the member. However, the court dismissed the application for a writ of possession because the notice of the eviction process did not provide a proper description of the arrears owing, and therefore the member was unable to know or understand the case she had to meet in demonstrating that she should not be evicted.

[55] In Superior View Housing Co-Operative Inc. v. Keefe,[75] the court held that it was unreasonable to evict a member (who was the recipient of social assistance for physical impairment) for breaching the co-op’s by-law by permitting a non-member to reside with her. The non-member, who was the member’s spouse, had applied for membership and had been refused without any reasons for the refusal having been given, and there was no evidence that the spouse would not be suitable for membership.

[56] In Guhbawin Co-operative Housing Inc. v. Poulton,[76] the court dismissed an application for a writ of possession on the grounds of both the unreasonableness of the eviction decision, and the unfairness of the process, where the directors based their decision to initiate the eviction process and evict the member, who suffered from epilepsy and blackouts, for disruptive and disturbing behaviour without reasonable cause and without a factual basis.

[57] In Harry Sherman Crowe Housing Co-operative Inc. v. Benjamin,[77] the member who was a young adult university student who had lived in the co-op since she was three years old found herself in a “Catch-22” situation. Soon after she and her mother had been relocated because of a break-in at their former unit, her mother left the co-op and although the member notified the co-op that she was in an over-sized unit and could not pay the rent for that unit and would likely require a subsidy for a smaller unit, through both administrative runarounds and confusing provisions about the subsidy, she was not relocated and unable to obtain a subsidy. Because of her unique circumstances, the court concluded that it was both unreasonable and unfair for the co-operative to rush to have her evicted because of her housing charge arrears rather than trying to help her remain at the co-op.