presentation1mullanchp13cordova

8/11/2019 Presentation1Mullanchp13Cordova

http://slidepdf.com/reader/full/presentation1mullanchp13cordova 1/9

By: Heddy Cordova



The rules of Procedural Fairness (Natural

Justice) are divided into two separatecategories:

1) Audi Alteram Partem: The requirementthat the decision maker provide adequateopportunities for those affected to presenttheir case and respond to the evidence andarguments being advanced by otherparticipants or in the knowledge or

possession of the decision maker

2) The requirement that decision makers beindependent and unbiased



It is one of the fundamentals of procedural fairness that those affected by

decisions within its scope should in general receive notice of the process

about to be undertaken in a sufficient degree or detail and in a timelyfashion to enable the fulfillment of their participatory entitlements

The notice requirements in civil and criminal cases are more detailed and

are served personally, which is now typically followed by a discovery

process. For example, professional discipline with career threateningramifications.

In contrast, in public hearings (i.e. Location of a nuclear plant) the notice

is less formal (i.e. Newspaper) where not everyone is served personally,

only those who are directly affected.

This leaves me the question whether in public hearings the required

notice is sufficient? What are the criteria when selecting whom should

get a personal notice?



Is the Notice Adequate and Reasonable: It is the obligation of the tribunal to make

wise choices as to the medium or media through which the affected portions of the

public are to be notified and to provide information that is both ample and enoughto alert the public as to what is at stake.

1) Re Central Ontario Coalition and Ontario Hydro –The problem arose when an

alternative decision was chosen and the announcement was very vague and

misleading in its description of the area affected.

2)Nisga’a Tribal Council v. Environmental Appeal Board –The problem arose whenthe applicant placed an announcement in a newspaper serving the community 150

miles away from Nisga’a. The court held that this was insufficient compliance

because in this instance newspaper advertising of any kind was inadequate and

there was an obligation on the administrator to ensure notification in the manner

requested by the Tribal Council.

Notice will have to be given again if during the course of a hearing new issues arise

particularly when additionally persons stand to be affected by the decision. If the

change is significant it may hinder the ability to participate effectively because of

insufficient time to prepare.

How much time and detail is adequate?



In recent years that there has been demands seeking full discovery rightsor access to all relevant material in the hands of the decision maker and

other parties mainly because of the decision of the Supreme Court ofCanada in R. v. Stinchcombe in which the court prescribed extensivediscovery rights in the criminal trial process.

Does this case apply to administrative tribunals? No, there has not beena universal acceptance of discovery as a component of procedural

fairness across a broad spectrum of administrative process



1) Ontario (Human Rights Commission) v. Ontario (Board of

Inquiry into Northwestern General Hospital) –The Commissionwas obliged to provide discovery of all statements made by theComplainants to the Commission. The Court emphasized theserious ramifications of a finding of discrimination and in thiscontext expressed the view that justice would be served betterwhen there is complete information available to the respondents.

2) CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices ReviewBoard) –The target was to obtain pre-hearing disclosure of allrelevant documents in the Board’s possession. The Federal Courtsustained the Board’s refusal on the ruling by stating that therewere no criminal proceedings, it would impact the efficiency ofthe business, and it would also lengthen the proceedings.

3) Siad v. Canada – the failure of the immigration authorities to

disclose all relevant material prior to a convention refugee

hearing did not amount to a breach of their duty when counsel

did not request that material until the hearing had commenced.



In civil and criminal litigation processes aresubject to restrictions, for example, in

penitentiary proceedings there are informer

or solicitor/client privilege

In the case of administrative processes thisremains questionable (i.e. privilege between

lawyers to the Commission and their clients)

Does such class privilege exist in terms of

the relationship between a tribunal and itsstaff?



CIBA-Geigy Ltd. v. Canada - to the extent that the

provision of discovery or the making of a discovery order is

a matter within the discretion of a and administrative

tribunal or agency, it is possible that any ruling about

discovery will be subject to judicial review not on

correctness but on a patent of unreasonableness standard.

In an appeal or judicial review of a decision of an

administrative body, it is important to understand the role

of the supervising court.

Why and to what extent should the court intervene in

the decision made by an administrative body?

presentation1mullanchp13cordova

Documents