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Procedural Fairness and the Drafting of Reasons Procedural Fairness and the Drafting of Reasons 17th Advanced Administrative Law & Practice The Canadian Institute October 24 - 25, 2017 Ottawa, Ontario Graham J. Clarke Arbitrator/Mediator 2 Procedural Fairness and the Drafting of Reasons TABLE OF CONTENTS Introduction ................................................................................................................................ 3 Recent Procedural Fairness Cases ............................................................................................ 4 Bias: Appearances Matter ...................................................................................................... 4 Evidence ................................................................................................................................ 5 Raising and deciding novel issues during the drafting process ............................................... 7 Quorum Matters: how much assistance can a decision maker receive? ................................. 8 A conclusion is not a decision ................................................................................................11 Conclusion ................................................................................................................................13 17th Advanced Administrative Law and Practice Graham J. Clarke The Canadian Institute Arbitrator/Mediator October 24-25, 2017 Ottawa, Ontario 3 Procedural Fairness and the Drafting of Reasons INTRODUCTION1 A client asked his new lawyer to guess why he had chosen to send him legal work. “Was it our firm’s conferences or newsletters?”, guessed the lawyer. Nope. “The hockey game invites, perhaps”? Nope. “What was it?”, asked the lawyer. “You counted all your strokes when we played golf”, replied the client. So how is this true marketing anecdote relevant to procedural fairness and the drafting of reasons? In golf, players’ ethics oblige them to call penalties on themselves2, whether playing partners realize a rule breach has occurred or not. Decision makers are no different. Just like golfers, they must know the rules they are bound to follow and disclose possible infractions to the parties. This is especially the case at administrative tribunals3, since the parties are in no position to police the bureaucratic process themselves. This paper will review recent procedural fairness cases. Many cases might have been avoided through proper disclosure to the parties. Occasionally, however, the decision maker’s behaviour constituted the golfing equivalent of someone failing to count all his/her strokes or claiming to have found his/her ball when the real ball has been lost in the woods. Parties, like golfing partners, deserve better. 1 This paper focuses on quasi-judicial tribunals which operate at arm’s length from government. Procedural fairness is a flexible concept and changes for less independent tribunals and decision makers. 2 The rules of golf, like those of procedural fairness, are not always simple. For example, golfers can usually remove loose impediments around their ball. But sand from a bunker is not considered a loose impediment if the player’s ball is on the fringe rather than on the putting green itself. 3 While one usually associates decision makers with a government appointment, certain public servants will make important legal decisions in the course of their duties: Chickoski v. Canada (Attorney General), 2017 FC 772. As the cases in this paper illustrate, the rules of procedural fairness can apply to both types of decision maker. 17th Advanced Administrative Law and Practice Graham J. Clarke The Canadian Institute Arbitrator/Mediator October 24-25, 2017 Ottawa, Ontario 4 Procedural Fairness and the Drafting of Reasons RECENT PROCEDURAL FAIRNESS CASES4 Bias: Appearances Matter An administrative tribunal’s reputation is only as good as the demonstrated expertise of its constituent members5, as well as their conduct while holding office. A decision maker’s outside activities may raise legitimate concerns for a party. Parties expect decision makers not to engage in activities which may appear to favour one side in a current or future dispute. Governments often address the importance of a decision maker’s conduct. In Quebec, the Administrative Labour Tribunal must have an Ethics Code6. The Quebec government must pass and make public the required Ethics Code7 to help guide decision makers’ conduct. The Canadian Judicial Council (CJC) recently decided8 not to pursue allegations about judges who attended law firm sponsored cocktail parties at an international tax conference in Europe9. The CJC did not pursue the matter in part after one judge recused himself from a case, with a further indication he would no longer attend off-site sponsored receptions. Similar issues can arise in the labour relations area. Decision makers might err on the side of attending events, like CLE conferences, which include representatives from both labour and management. Some additional leeway exists for tribunal Chairs whose duties include administrative meetings with the Minister, and publicly representing the Board at meetings with individual stakeholders. While appearances matter, an important distinction exists between bias and time spent acquiring the expertise which merits a tribunal appointment. Courts acknowledge that administrative 4 For a more in-depth analysis of this area, see the paper presented at last year’s conference: Duties Administrative Tribunals Owe All Parties, (2017) 30 Can. J. Admin. L. & Prac. 247. An earlier online version can be found here. 5 Quebec has regulations to govern tribunal appointments, such as for its labour board. The process ensures that the tribunal’s Chair, who was appointed under the process, a member of the legal community and a representative of the groups concerned will be involved in the recruitment and selection process: Regulation respecting the procedure for the recruiting and selection of persons qualified for appointment as members of the Administrative Labour Tribunal and for the renewal of their term of office, CQLR c T- 15.1, r 1. Ontario has a similar process to avoid appointments based on connections, rather than experience and expertise: O. Reg. 88/11: APPOINTMENT TO ADJUDICATIVE TRIBUNALS 6 An Act to establish the Administrative Labour Tribunal, CQLR c T-15.1 at article 67 7 Code of ethics of the members of the Administrative Labour Tribunal, CQLR c T-15.1, r 0.1 8 Canadian Judicial Council completes its review of three judges who were the subject of media reports 9 Judicial watchdog finds no problem with judges attending sponsored cocktail parties, CBC website, July 21, 2017. 17th Advanced Administrative Law and Practice Graham J. Clarke The Canadian Institute Arbitrator/Mediator October 24-25, 2017 Ottawa, Ontario 5 Procedural Fairness and the Drafting of Reasons tribunals, if they are to have the expertise which justifies deference, need members with practical experience. In Bernard10, the Federal Court of Appeal (FCA) rejected an argument that a decision maker’s past affiliation with a trade union raised a reasonable apprehension of bias. Practical experience and expertise is an important condition precedent for appointments to an expert tribunal: [20] The applicant also submitted that the Board’s decision raised a reasonable apprehension of bias as the presiding Board Member had a prior affiliation with a federal public service union (not the respondent union) and appeared before a House of Commons Standing Committee to speak to the proposed PSLRA in 2003. The Board is composed of individuals with experience in public service labour relations, usually as a result of having worked within the federal public service or having dealt with one of the unions which represent federal public servants. The fact that in the course of those duties an individual expressed his or her organization’s viewpoint does not mean that that individual is not capable of having an open mind on the same subject when sitting as a member of the Board. The applicant’s evidence is insufficient to establish a reasonable apprehension of bias. In another case, a decision maker’s previous private practice work for a party did not, by that fact alone, disqualify him. The court’s concern focused on whether the decision maker had given any legal advice on the precise issue being decided in the proceeding11. Conduct during a hearing may give rise to an appearance of bias. Decision makers who remove themselves temporarily from a hearing due to a family member testifying, but who nonetheless later participate in the decision, give the appearance of bias12. Evidence A decision maker decides a case based on the evidence the parties submitted. A decision maker violates procedural fairness by receiving additional evidence, or seeking out new evidence, without proper disclosure to the parties13. 10 Bernard v. Canada (National Revenue), 2017 FCA 40 11 PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857 12 Johnny v. Adams Lake Indian Band, 2017 FCA 146 13 Rare exceptions exist including judicial notice of notorious facts and, in labour law, cases involving certifications, raids and revocations where the evidence of employee wishes remains confidential. 17th Advanced Administrative Law and Practice Graham J. Clarke The Canadian Institute Arbitrator/Mediator October 24-25, 2017 Ottawa, Ontario 6 Procedural Fairness and the Drafting of Reasons In Canada v. Akisq’nuk First Nation14, the Specific Claims Tribunal (SCT) advised the parties’ counsel of an evidentiary
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