Assignment Two

1. Duty of administrative decision-makers at the pre-hearing, hearing and the post-hearing

stage along with exceptions

Pre-Hearing

Pre-hearing content issues include the following:

- Issues of notice: There can be problem regarding form, manner of service, time and
contents of notices that were given to the affected person.
- Claims to pre-hearing disclosure or discovery of evidence to be relied on; and
- Delay in the processing of administrative proceedings

1. Notice
The notice must specify that a decision is about to take place and inform individuals
about how to take part in the process. It must be written or oral. The most important
factor is that the notice must be sufficiently clear enough in order for the parties to have
a clear idea of what is at stake.

Re Central Ontario Coalition and Ontario Hydro (1984) : The notice was inherently
defective because less than 5 percent of the persons that were affected could
comprehend the notice.

The following provisions in SSPA for Ontario are relevant for this aspect.
- The parties to a proceeding shall be given reasonable notice of the hearing by the
tribunal. (Section 6(1))
- Where parties are numerous, the tribunal may, instead of giving individual notices, cause
reasonable notice of the hearing or of its decision to be given to such parties by public
advertisement or otherwise as the tribunal may direct. (Section 24(1))
- Where notice of an oral hearing has been given to a party to a proceeding in accordance
with SSPA and the party does not attend the hearing, the tribunal may proceed in the
absence of the party and the party is not entitled to any further notice in the proceeding.
(Section 7(1))

The following aspects need to be kept in mind while issuing notice:

- There is a duty to give formal notice. (VX5 Technologies Inc. v. Ambassade Bitcoin (2016)
- The length of notice must be sufficient, otherwise decision by the board may be set aside
for breach of rules of natural justice. (Re City of Winnipeg v. Torchinsky (1981)
- Even a late response may be accepted if sufficient time was not given to respond to the
notice. (Re Rymal and Niagara Escarpment Commission (1981)

2. Discovery

This includes what information will be given to the other side.

The following provisions of SSPA are important:

- Section 8: Where the good character, propriety or conduct of a person is in issue, that
person must be furnished, prior to the hearing, with reasonable information about the
allegations relating to that character, propriety or conduct.
- Section 12(1): A tribunal is empowered to require any person to give evidence or
produce in evidence any document relevant to the subject-matter of the proceeding and
admissible in evidence.

CIBA-Geigy Ltd v. Canada (1994) : A request for full discovery from board can be refused.
Law and policy requires that some leeway be given an administrative tribunal with
economic regulatory functions in pursuing its mandate.

3. Delay

This relates to delays which occur in the processing of administrative proceedings.

Assessment is required to determine whether an administrative delay is undue.
Generally, delay in hearing may amount to a breach of procedural fairness. But delay by
the applicant herself may amount to negligence or a waiver of her right to procedural
fairness, unless there are extenuating circumstances which prevent the applicant from
responding timeously.

L.R. v. Tribunal administrative du Quebec (2016): Deliberate or undue delay caused by an

applicant‘s conduct may not amount to breach of procedural fairness.

Hearing

The issues related to hearing include the content of the nature of the actual hearing itself.
The following aspects are important:
- Should it be oral or written or a mixture of both?
- Should there be open hearings, cross-examination rights and access to and the
opportunity to meet adverse evidence?
- Are the parties entitled to representation by counsel, an agency or a friend?
- If there is an oral hearing, is there a right to cross-examine the other witness?
- The handling of evidence in the administrative process is an important aspect to
consider. This involves examining the types of evidence that a decision-maker can
consider and the extent of their obligation to review that evidence in different situations.
The focus is on understanding the decision maker’s role in assessing and considering the
evidence presented during the administrative process.

1. Nature of the Actual Hearing

There is entitlement to an oral hearing when credibility of a person is an issue in the

proceedings. There is a duty to hear all the parties before deciding an issue and to hear
the motion to dismiss the matter before proceeding to the merit.

2. Right to counsel

In most cases, the right to counsel is assumed or statutorily provided. This right is not
universal and varies from jurisdiction to jurisdiction.
 3. Disclosure

This refers to disclosure to parties of information that the agency has about the decision
to be made. A party is entitled to be allowed an adequate opportunity to respond and
know what evidence and representations have been given against him.

4. Official Notice

This refers to the extent and approach by which an agency can consider external
information that is not formally presented as evidence during its decision-making
process. It pertains to the agency's discretion in utilizing additional relevant material that
may inform its decisions, even if such material was not formally introduced as evidence.

5. Admissibility of Evidence

There is a duty to consider all relevant evidence.

6. Cross-Examination

When an oral hearing takes place, the concept of procedural fairness pertains to
whether there is a right to question or challenge the testimony of the opposing witness
through cross-examination

Post-Hearing

The issues related to post-hearing includes the duty to provide reasons.

a. Duty to give reasons

The obligation to provide reasons examines whether there is a right to receive written or
oral explanations for a decision. Since the Baker case, there has been a growing
inclination in the courts to require the provision of reasons, although this is not
universally applicable in all cases.

In regards to content of reason, insufficient or inadequate reasons may amount to

breach of procedural fairness. The effect of breach of the duty to give reasons is that the
decision may be set aside.

2. Institutional Decision Making

Issue

Rule

There are two components in right to an unbiased and independent decision maker namely:
- Personal Bias ( i.e., partial state of mind of the individual v. impartial): and
- Institutional / Independence bias ( i.e. lack of independent institutional arrangements)
 Institutional Bias

The SCC considered the meaning of independent and impartial tribunal as guaranteed by S.
11(d) of the Charter. In Valente v. The Queen, a judge of the Ontario Provincial Court argued
that the court was not independent due to factors such as tenure, salary determination, and
dependence on the executive government. The SCC ruled that judges of the Provincial Court
are independent tribunals, distinct from impartiality. Impartiality refers to the tribunal's state
of mind and absence of bias, while independence reflects the objective conditions or
guarantees of judicial independence. The test for determining independence under Section
11(d) of the Charter is whether the tribunal can be reasonably perceived as independent,
based on the essential objective conditions or guarantees. Different cases demonstrate
variations in bias standards, particularly in prior involvement and attitudes towards the
matter being decided.

The principles of judicial independence are as follows:

a. Security of tenure
Tenure must be secure against interference by the executive or other appointing
authority in a discretionary or arbitrary manner

b. Financial Security
Judges should have security of salary, remuneration, and pensions, established by law
and free from arbitrary interference by the executive.

c. Institutional Independence
Tribunals should have institutional independence, with judicial control over
administrative decisions directly impacting the exercise of the judicial function

Analysis

Conclusion

3. Individual Bias

Issue

Whether decisions taken by Abel, in the capacity of the Chairperson, can be challenged on
the ground of bias?

Rule

There are two components in right to an unbiased and independent decision maker namely:
- Personal Bias ( i.e., partial state of mind of the individual v. impartial): and
- Institutional / Independence bias ( i.e. lack of independent institutional arrangements)
A. Personal Bias
The decision makers must be unbiased, impartial, and independent. Personal prejudice
against a party is prohibited. Reasonable apprehension of bias by the applicant
disqualifies the decision-maker. Bias taints a decision if it relies on illegitimate interests
or irrelevant considerations. Examples of illegitimate interests include the decision-
 maker's financial interests or personal relationships with the parties. A pre-conceived
attitude towards the issues at stake can also indicate bias.

Four primary ways in which an authority/decision maker may be disqualified:

a. Antagonism during a hearing by a decision-maker
It can be towards a party, their counsel, or witnesses. Aggressive questioning or
making negative comments about testimony is a common form of this antagonism.
This behaviour can indicate bias or a lack of impartiality on the part of the decision-
maker.
b. An association between one of the parties and the decision maker
c. When a decision maker is already involved in the preliminary stage of a process, it
means they have already been exposed to the matter being heard by the tribunal.
This can include instances where the decision maker has previously heard the case or
has been involved in the investigation and decision to proceed with the matter being
presented.
d. Attitudinal Bias is a reflection of the attitude of a decision maker toward the
outcome.

The following is the exemption carved out:

- Overlap of functions which occurs that has been authorized by statute. A multifunctional
structure does not in itself always raise an apprehension of bias.

Analysis

Conclusion