By: Heddy Cordova
 The
rules of Procedural Fairness (Natural
Justice) are divided into two separate
categories:
 1)
Audi Alteram Partem: The requirement
that the decision maker provide adequate
opportunities for those affected to present
their case and respond to the evidence and
arguments being advanced by other
participants or in the knowledge or
possession of the decision maker
 2)
The requirement that decision makers be
independent 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 timely
fashion 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 threatening
ramifications.

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 enough
to 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 when
the 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 rights
or access to all relevant material in the hands of the decision maker and
other parties mainly because of the decision of the Supreme Court of
Canada in R. v. Stinchcombe in which the court prescribed extensive
discovery rights in the criminal trial process.

Does this case apply to administrative tribunals? No, there has not been
a 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 Commission
was obliged to provide discovery of all statements made by the
Complainants to the Commission. The Court emphasized the
serious ramifications of a finding of discrimination and in this
context expressed the view that justice would be served better
when there is complete information available to the respondents.

2) CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review
Board) –The target was to obtain pre-hearing disclosure of all
relevant documents in the Board’s possession. The Federal Court
sustained the Board’s refusal on the ruling by stating that there
were no criminal proceedings, it would impact the efficiency of
the 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.






How much more damaging is it to be accused of discrimination that
it is to be accused of price gouging?
Was it wrong for the judgement to be measured on the basis of
whether it was a criminal process?
Why should Patented Medicine Prices Review Board have more
protection than the staff of the Ontario Human Rights Commission?
What happens when the information is not in the hands of the
decision maker but with one of the parties? Who should the
information belong to? Should it belong to the public?
Is justice not better served when complete information of the case
is provided?
As you can see ….the precise entitlements of discovery in the
administrative process are still far from being established .....
 In
civil and criminal litigation processes are
subject to restrictions, for example, in
penitentiary proceedings there are informer
or solicitor/client privilege
 In the case of administrative processes this
remains 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 its
staff?

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?