Election-ready, willing and able?

Federal election on the horizon plus the importance of relevance of evidence in managing hearings

Spring is on its way - in this part of the world, the grass is starting to appear and the days are getting warmer. It looks like we will also be having a Spring federal election. If you want a reminder of the justice planks (such as they are) in the major parties’ platforms you can check out my newsletter from January.

Welcome to 2025 - a year of possibilities

I will have a “watching brief” on the election and will be highlighting any in-campaign promises that touch on administrative justice or the rule of law. A column I wrote over ten years ago about the restrictions on adjudicators during an election is still relevant. If I was still an adjudicator I would not be able to comment on election issues.

Mossy Trunk and Cherry Blossoms, Utagawa Hiroshige, 1837

In unrelated news, Canada is ranked number 18 in the latest World Happiness Report. Mexico is number 10 and the U.S. is number 24 (although this reflects data from last year).

In this newsletter I tend not to focus on justice issues in the United States, since there are so many excellent commentators on the rapidly evolving assault on the Rule of Law there. It’s easy to quickly become overwhelmed by the news out of the U.S. - but it is important to stay informed — “Eternal vigilance is the price of liberty”.

This quote has been (falsely) attributed to Thomas Jefferson. Its origins can be traced to a longer statement by John Philpot Curran (an Irish politician and lawyer):

The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.

Relevance, weight and hearsay

We all know that the rules of evidence that apply to courts are not binding on tribunals. However, that doesn’t mean adjudicators should ignore the rules of evidence and let everything in while reserving on weight. There are times when allowing hearsay evidence and reserving on weight is a suitable approach - especially when relevance of the evidence is difficult to determine at that stage of the hearing. However, this just highlights the primacy of relevance in admitting evidence. A lack of focus on relevance can result in longer hearings where time is spent examining and cross-examining on evidence that is not relevant to the issues in dispute.

A labour arbitration decision of my former colleague at the Human Rights Tribunal of Ontario, Sheri Price, highlights the importance of focusing on relevance to ensure efficient hearings. In University Health Network v Ontario Nurses’ Association, 2025 CanLII 421 (ON LA), the preliminary issue was the admissibility of character reference letters in a grievance against a termination of employment.

Arbitrator Price noted that evidence of an individual’s good character has little or no relevance in determining whether an individual has committed a civil wrong. She continued:

[14] Perhaps more importantly, the caselaw recognizes that, even if evidence of good character could be seen as having some relevance to the issues to be determined, the probative value of such evidence is generally outweighed by its prejudicial effect on the hearing, specifically, its capacity to significantly prolong the hearing and distract from the real issue.

After concluding that the reference letters were not relevant to the issues in the grievance, Arbitrator Price continued:

[20] In the alternative, even if the letters do have some relevance to the issues that I need to determine for any of the reasons identified by the Union, their probative value is outweighed by the significant prejudicial effect admitting this evidence could have on the hearing. If the Union were permitted to put the letters into evidence, the Employer would need to be given a corresponding opportunity to call evidence – possibly even the letter-writers themselves – to refute, augment or qualify the many things the letters say about the quality of the grievor’s work. Not only could this significantly prolong what has already been a very lengthy hearing, it could cause the hearing to get completely sidetracked and distract from the real issues that need to be determined in this case.

Arbitrator Price also addressed the union argument that she had the discretion to admit hearsay evidence:

[22] … The Union is correct that, as a labour arbitrator, I have the discretion to admit hearsay evidence, but that does not mean that I should do so. In my view, it would be unfair to the Employer to admit the letters into evidence given the Employer’s inability to test the evidence through examination of the letter-writers. Nor is this a problem that can be appropriately addressed by admitting the letters into evidence subject to weight.

Arbitrator Price relied on a decision of Paul Craven from 2010 (Zehrs Markets v UFCW, Local 1977, 2010 CarswellOnt 10679, at para. 19):

One of the difficulties of receiving evidence that may not be clearly relevant to the main issue… is that it invites the other party to produce evidence of similar quality in reply or anticipation. This must work against the policy of arbitration as an expedited and relatively inexpensive forum for resolution of disputes …

Those were simpler times, perhaps, when arbitration was “expedited and relatively inexpensive” but the point remains a strong one. Letting challenged evidence in and reserving on the weight to give it is a recipe for longer and more complicated hearings.

Adjudicators need to get parties to focus on relevance before the hearing. This is where active case management can play a critical role.

Cases of note

Lack of transcript is not a breach of procedural fairness

The Landlord and Tenant Board in Ontario routinely tapes its proceedings. In Richmond v. Rodriguez, 2025 ONSC 1666 (CanLII), the recording device malfunctioned, so there was no ability to obtain either a recording or transcript of the hearing. Justice O’Brien ruled:

[9] There is no statutory or common law requirement for a tribunal to produce a recording of its proceedings capable of generating a full transcript. However, if there is no transcript, and proper appellate review is compromised, this can be the basis for the reviewing court to order a new hearing: Billion v. Vaillancourt, 2016 ONSC 5820 (Div Ct.) at para. 7. It is unfortunate that no recording was available in this case.

[10] That said, I have concluded the ability of the court to review the decision is not undermined. There is an adequate record of what occurred before the Board to permit appellate review. Both parties submitted affidavits sworn by the representatives who attended the hearing detailing how the hearing unfolded. While there are some differences in perspective, the affidavits are largely consistent in setting out what occurred.

What is “put before” a decision-maker and therefore in the record of proceeding

In Douris v. Law Enforcement Complaints Agency, 2025 ONSC 1668 (CanLII), Douris argued that the Agency should include two internal documents from a prior complaint in the record of proceeding for his judicial review. He claimed these documents were relevant and could demonstrate bias in the decision-making process. The Agency argued that these documents were not considered by the decision-maker and were therefore not relevant.

Justice O’Brien noted that a judicial review is not a de novo hearing and is limited to assessing whether the decision was reasonable based on the material before the decision-maker. Justice O’Brien disagreed that the record of proceeding must include material that was “before,” but not “put before” the decision-maker (para 9):

… Administrative tribunals are typically dealing with many files at any given time. In some cases, like this one, they may have several files initiated by the same applicant/complainant. The administrative decision-maker is not required to produce all documents in its possession that were not put before, or considered, by the decision-maker in an individual case.

Don’t SkipTheStatutoryDeadline

In certification applications under the Ontario labour relations regime, employers have a two-day time limit for filing an objection to the estimate of the number of employees in the bargaining unit. In SkipTheDishes Restaurant Services Inc. v. Canadian Union of Postal Workers, 2025 ONSC 1399 (CanLII), the employer missed the deadline by four days. The Ontario Labour Relations Board declined to consider Skip’s notice to challenge the certification application and Skip sought a judicial review of that interlocutory decision.

The law is clear that in the absence of exceptional circumstances, courts do not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69 citing C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] F.C.R. 332, at para. 31; College of Physicians and Surgeons of Ontario v. Kilian, 2024 ONCA 52, at paras. 28-29.

The employer submitted that this was an exceptional case based on the following factors established by the jurisprudence:

1. The hardship to the applicant if the administrative proceedings continue without the Court’s intervention;

2. The waste that will result if the applicant has to wait until the end of the administrative proceedings to bring an application for judicial review;

3. Delay in the administrative proceedings if the Court decides to hear the application for judicial review now;

4. Whether fragmenting the process and the issues will create additional litigation; and

5. The strength of the application for judicial review.

The court noted that the doctrine of prematurity prevents the fragmentation of administrative proceedings, reduces costs and delays, and ensures that judicial review is used as a last resort and only after the administrative decision-making process has been exhausted. Also, allowing the underlying proceeding to complete its course respects the role of the administrative decision-maker.

One of the arguments that Skip made was that allowing the certification process to proceed would give the union’s application an “unsubstantiated air of legitimacy that may improperly skew a voter’s perception when it comes to casting their ballot”. The court wasn’t buying that argument:

[35] First, the submission regarding a prejudice based upon providing unwarranted “legitimacy” to the process, is amorphous, speculative, and unrooted in any evidence or reasonable inference from the circumstances. Moreover, the vote has now been completed and the certification process has moved on.

Upcoming webinars and conferences

Tribunal Hearings and Confidentiality – best practices in balancing open proceedings with privacy concerns

April 22, 2025, online webinar

Join an experienced adjudicator and experienced counsel in an exploration of the law related to the open court principle and confidentiality.

Learning outcomes:

- Become familiar with the legal tests for confidentiality and sealing orders

- Learn how to apply the legal tests to the kinds of requests you might receive prior to or during a hearing

- Become aware of the evidence necessary to support an anonymization request

- Learn best practices in managing sensitive and personal information in a hearing and in decision writing

Democracy, the Rule of Law, and Independence

November 18-20, 2025, Ottawa

CIAJ Conference on Democracy, the Rule of Law, and Independence is a multidisciplinary event designed to bring together actors from civil society—including legal, political, and social stakeholders—to critically examine the principles that uphold social stability and the rule of law. Our goal is to deepen understanding of these essential tenets and identify actionable strategies to enhance public trust in legal institutions, thereby reinforcing this vital pillar of democracy.

Additionally, the conference will address the rising tide of global authoritarianism and its impact on democratic governance. By bringing together diverse perspectives and fostering open dialogue, we aspire to cultivate innovative solutions that promote transparency, accountability, and resilience in the face of emerging challenges. Join us in this critical conversation to strengthen our commitment to democracy and the rule of law on a global scale.

Links of interest

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