Procedural Fairness: Listen to the Other Side

Written by Daniel Standing LL.B., First Reference Editor

A recent case of the Saskatchewan Court of Appeal, Saskatchewan (Employment Standards) v North Park Enterprises Inc., 2019 SKCA 69 (CanLII), illustrates the importance of the Latin maxim, audi alteram partem which means “listen to the other side,” or “let the other side be heard as well.” All administrative bodies, including labour boards, must comply with the rules of natural justice and procedural fairness. Within those rules there exists the duty to act fairly, which includes allowing the parties the right to be heard. In this case, the Saskatchewan Labour Relations Board issued a decision which ran afoul of this critical principle in several instances.

Key facts

The Director of Employment Standards issued a wage assessment against North Park Enterprises Inc., (the Employer) requiring it to pay more than $6,000 to Sean Bridgette, an employee who was laid off and claimed he was owed pay in lieu of notice, as well as call-out pay. The Employer successfully appealed the wage assessment to an adjudicator who reduced the amount substantially, eliminating the pay in lieu of notice and leaving $184.04 for call-out pay. The Director then appealed the adjudicator’s decision to the Labour Relations Board on multiple grounds of appeal. The day before the hearing, Mr. Bridgette’s wife, acting as his representative, sent an email to the Board containing written submissions on Mr. Bridgette’s behalf. Neither she nor the Board shared the email with the other parties, who were unaware of it. Following a hearing, the Board issued a written decision, cancelling the adjudicator’s decision and remitting the matter back to the adjudicator along with directions. Ten days after the hearing, the Board sent a copy of the email containing Mr. Bridgette’s submissions to the Director.

The Director was successful before the Board on the merits of its appeal, but appealed to the Saskatchewan Court of Appeal anyway, asserting that the Board committed errors of law by making various findings and issuing directions against it in violation of procedural fairness. Those findings and directions concerned the timeliness of the Employer’s appeal of the wage assessment, and the Director’s standing to participate at an adjudication. The third finding concerned the applicability of a particular section of The Saskatchewan Employment Act, respecting the time for filing an appeal.

Ultimately, the Court of Appeal agreed with the Board on these points, holding that the Director’s objections to the Board’s directions pertaining to timelines and the Director’s ability to participate at the adjudication were well-founded. The improper portions of the Board’s order and directors were struck out and the matter was remitted to the adjudicator.

Issues for the court’s determination

In its decision, the Saskatchewan Court of Appeal addressed three separate issues: 1) whether the Board breached its duty of procedural fairness in determining issues that were not properly before it; 2) whether the Board breached its duty of procedural fairness by considering written submissions that were not provided to the Director; and 3) whether the matter should be remitted back to the Board or the adjudicator.

Procedural fairness and audi alteram partem

The court began its analysis of procedural fairness by recognizing the duty of procedural fairness that the Board owes to all litigants who come before it. A key component of that duty is ensuring that each party is aware of the issues that the Board will determine, and each party must have an opportunity to respond to those issues. The Court decided that in this matter, the Board decided issues that were not properly before it, and the Director was deprived of the required opportunity to adequately respond to the issues. The Court focused on three issues that the Board considered and decided:

The timeliness of the filing of the Employer’s notice of appeal

This matter was never in dispute at the adjudication, and the adjudicator confirmed the parties’ mutual understanding that the appeal was started within the time limit. Despite that fact, the Board addressed the issue of its own volition and directed the adjudicator to take the steps necessary to ensure the appeal was filed in a timely manner. The Court found that this was a breach of procedural fairness (even in the absence of a final decision of the Board on the issue) because the issue was never in dispute before the adjudicator. As a result, the offending paragraphs were struck from the Board’s decision, and the directions given to the adjudicator were cancelled.

The Director’s standing at the adjudication

During submissions to the Board, Ms. Bridgette (the employee’s wife and advocate) made a very brief submission which essentially alleged that an Employment Standards Officer told Mr. Bridgette that his wife could not represent him at the appeal hearing. Neither the Director nor the employer responded to this submission before the Board. There was no notice that this issue was before the Board, there having been no notice of appeal. Furthermore, there was no indication from the Board that it would consider this issue. However, that is exactly what the Board did. It concluded that in situations when the Director or his designate does not represent the employee, he would have no standing at the hearing and could only attend as a witness. Again, since the issue was not properly before the Board, its finding violated procedural fairness and prompted the Court to strike the offending paragraphs of the Board’s decision and cancel any directions given to the adjudicator.

Applicability of 15-day appeal deadline to the Director

The scope of the Director’s right of appeal under s.4-10 of the Act was properly before the Board as an issue for it to decide. However, the Board spent significant time considering whether the Director was limited to appealing an adjudication decision within 15 days, as set out in s.4-8(3) of the Act, or whether it had an unlimited time to appeal under s.4-10(b). The Board found that 4-8(3) applied, but allowed the appeal to proceed anyway because of substantial compliance with that provision. The Court found that the Board’s determination that the 15-day time limit under s.4-8(3) applied was in violation of procedural fairness since, like the two previous issues, the Director had no notice that this issue would be determined. Although this particular finding caused the Director no prejudice, it was still declared to be of no force and effect for its violation of the principles of procedural fairness.

The failure to share a copy of Ms Bridgette’s email

The Court stated that if the Board was aware that the other parties had not seen the email, it should have alerted them to its receipt of the email. However, the Court noted that there were no substantial differences between Ms. Bridgette’s email and her oral submissions before the Board. The Director had adequate time to respond to Ms. Bridgette’s submissions at the hearing. In the absence of any prejudice to the Director, the Court declined to find a breach of procedural fairness on this point.

The decision to remit and not quash the Board’s decision

In the final part of its decision, the Court explained why it chose to remove only the offending portions of the Board’s decision instead of quashing the entire decision and remitting it to the Board for a rehearing. In this case, the substantive issue was whether reasonable layoff notice had been provided. Since the Board’s procedural fairness errors all concerned procedural (as opposed to substantive) issues, it was possible for the Court to separate the good portions from the bad portions, leaving the Board’s substantive decision intact.

Takeaways

This case illustrates the fundamental importance for an administrative decision-maker to allow the parties a chance to be heard on issues that will form part of the decision affecting them. A party who is denied that right may well have an appealable case on the basis of procedural fairness.

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