Can You Hear Me Now?

It is not just cellphone mascots who desire to be heard. Many people who have matters before administrative decision makers expect to be heard; often that expectation is that they will be able to make oral submissions. In my personal experience, I find that many people believe that they can present their case better orally than in writing. The reasons may vary: they might not believe themselves capable of presenting a strong written case; they might not have the level of schooling that makes it easy for them to make written presentations; there might be language issues; or they might believe the facts are so complex – at least to them – that it would be easier to explain them verbally. However, for a great many agencies, oral hearings are not a right or the norm.

Central to the duty to be fair is the legal maxim: audi alteram partem. A party has the right to know the case it has to meet and the right to respond to that case before the decision maker reaches a decision. This includes the ability to present one’s case, which can take many forms: face-to-face oral hearings, telephone conferences or inquiries, electronic means (especially for an agency such as BC’s Civil Resolution Tribunal), or in writing (whether by mail, fax, or an on-line portal). This can be particularly important in administrative law matters – for some agencies, self-representation by the parties is the expectation or the usual manner of proceeding.

In Baker v. Canada (Minister of the Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada found that procedural fairness is a flexible and variable concept and stated that what is required will depend upon the nature of the particular proceeding. The Court identified several factors to determine the content of the duty of fairness, set out in paragraphs 23 to 27 of that decision. While not exhaustive, these include:

  • the nature of the decision being made and process followed in making it;
  • the nature of the statutory scheme and the terms of the statute under which the agency operates;
  • the importance of the decision to the individual or individuals affected;
  • the legitimate expectations of the person challenging the decision; and
  • the agency’s choice of procedures as well as its expertise and institutional constraints.

However, at paragraph 33, the court stated that an oral hearing is not always necessary to ensure a fair hearing and consideration of the issues involved. This can be true even in circumstances where a tribunal’s decision could fundamentally affect a party’s interests, necessitating a full and fair consideration of the issues. The court said that the flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. As noted in paragraph 34, whether or not the lack of an oral hearing is a breach of the duty of fairness requires consideration of all the factors relevant to the duty of fairness.

In short, entitlement to an oral hearing is usually a discretionary matter. The courts have consistently reaffirmed this principle in a post-Dunsmuir world: Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59; 667895 B.C. Ltd. v. Corporation of Delta, 2016 BCSC 2356, confirmed 2018 BCCA 38. Entitlement to an oral hearing is a contextual matter, dependent on the facts and circumstances as applied to the kind of factors set out in Baker. Because it is a discretionary matter, the courts will generally give deference to administrative decision makers when it comes to a party’s entitlement to an oral hearing: Maritime Broadcasting.

Of course, this general common law rule is subject to statute, regulation, or policy governing an administrative decision maker. However, it often codifies the common law principle. See, for example, the Statutory Powers Procedure Act, RSO 1990, c. S22 and the Administrative Tribunals Act, SBC 2004, c. 45. The legislation governing an administrative decision maker can also grant similar discretion (e.g., the Workers Compensation Act, RSBC 1996, c. 492, s. 246).

It may also be that an administrative body’s own choice of procedures will not necessarily create a legitimate expectation that an oral hearing will be held in every case. Where the law and policy applicable to an administrative body grants it discretion to do so, it likely only gives rise to the expectation that an oral hearing may be held in certain circumstances. D. Hall & Associates Ltd. v. Director of Employment Standards, 2001 BCSC 575; Cariboo Gur Sikh Temple Society (1979) v. British Columbia (Employment Standards Tribunal), 2016 BCSC 1622; Canwood International Inc. v. Bork, 2013 BCCA 96, confirming 2012 BCSC 871.

The circumstances as to whether an administrative body will more likely exercise its discretion to hold an oral hearing often includes cases where credibility goes to the core of the issue before the administrative body: Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177. Other circumstances might be involving matters of significant complexity such that an oral hearing is necessary, or where it is the only means of ensuring that the parties can fully and accurately present its case. Another common circumstance advanced by parties in judicial review proceedings is that it was their legitimate expectation of an oral hearing based upon promises or procedural practices of the administrative body. D. Hall & Associates; Cariboo Gur Sikh Temple Society (1979) v. British Columbia (Employment Standards Tribunal), 2016 BCSC 1622; Canwood International Inc. v. Bork, 2013 BCCA 96, confirming 2012 BCSC 871.

The question of legitimate expectations was discussed in detail in 667895 B.C. Ltd. The court noted that the doctrine of legitimate expectations is difficult to trigger, but remains a relevant doctrine for the courts to consider when reviewing an administrative decision on the grounds of procedural fairness. In particular, the court relied upon Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29 at para. 131. According to the SCC, the doctrine requires the court to looks to the conduct of the public authority in the exercise of a discretionary power including established practices, conduct or representations that can be characterized as clear, unambiguous, and unqualified, and whether that conduct has induced a party to form a reasonable expectation that they will be accorded a particular opportunity or right in the course of the administrative proceeding.

While the content of the doctrine was important to ascertain in 667895 B.C. Ltd, the determination of whether the petitioner had developed a legitimate expectation of an oral hearing still turned on the specific facts of the case. This highlights the fact that while the test is fairly settled and the determination as to whether the doctrine applies will depend on the unique facts of each case. In this regard, relying on Canada (Attorney General) v. Mavi, 2011 SCC 30, the court noted that government (or administrative bodies) representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.

Green v. University of Winnipeg, 2018 MBQB 4 recently examined another aspect of the doctrine. This is the latest in a series of lawsuits and judicial review proceedings involving a university student who was suspended in a disciplinary proceeding. This particular decision related to whether Mr. Green should be reinstated. Mr. Green argued that he was entitled to an oral hearing in the reinstatement proceeding, which the university had not allowed. The court found that this was not a breach of procedural fairness. The court stated that Mr. Green had confused his legitimate expectation in the disciplinary proceeding with what he could expect in a reinstatement proceeding. In essence, the seriousness of a proceeding, in terms of the nature and possible outcomes, is a factor to consider. The court also noted that a disciplinary matter requires a greater degree of fairness under the Baker principles than a reinstatement proceeding. The court also noted that the practicalities for both types of hearings were different, which meant that it could consider the fact that it was not feasible or reasonable to expect the university to convene an oral hearing for all matters.

On top of the question of entitlement to an oral hearing is the question as to whether or not that hearing will be open to the public. Again, this is largely a matter that is up to the discretion of an administrative body and the practices and procedures it might establish, subject to any statute or regulation governing the body. For example, section 41(2) of BC’s Administrative Tribunals Act states an oral hearing must be open to the public. This is subject to exceptions in cases where avoiding disclosure in the interests of a person or party outweighs the public interest of an open hearing and where it is not practicable to hold the hearing in a manner that is open to the public.

Finally, I would like to touch on the idea that an oral hearing provides the benefit of allowing parties to tell their story and feel as if they have been heard. In Practice and Procedure Before Administrative Tribunals, the authors refer to this as allowing a party to “let off steam”. While the authors note that some believe this has an important social purpose, they maintain that this is not correct and it does not provide any such result. Moreover, it is not something required by the principles of procedural fairness. Citing Jones v. Industrial Wood and Allied Workers of Canada, (Local 1-3567), 2011 BCSC 929, the authors state that there is no requirement that an agency receive information which is not relevant to the issues before it. Furthermore, they point out that fairness does not dictate that an agency should have before it information that is not relevant, probative, or material to the proceeding before it. There is merit in this position; moreover, there are other means by which an administrative agency can advance the social purpose or, put in other terms, customer satisfaction. Much like a cellphone customer wanting a product that makes them feel that they have been heard.

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