When should overturned decisions be returned to the same decision-maker?
Managing time in hearings, more debate on virtual vs in-person hearings and a survey for subscribers
Fiery sky over Lake Ontario (July 2024)
It's been a busy week of radio programming with a show that aired Wednesday about an outdoor concert in Ottawa that happened 55 years ago this week: Dizzy Gillespie and Chico O'Farrill. It certainly feels like the “dog days of summer” which I only recently learned has nothing to do with real dogs, but refers to the Dog Star, or Sirius (also known as Alpha Canis Majoris).
An Adjudicator’s Toolkit will be taking the month of August off and will return in September. At the end of this newsletter I’ve included a short survey and an invitation to message me about what you would like to see in this newsletter. I always appreciate feedback!
Returning a decision to the same adjudicator
In London (City) v. Canadian Union of Public Employees, Local 101, 2024 ONSC 4074, an arbitrator failed to consider evidence relevant to a grievance. The employer argued that the only reasonable remedy was to quash the award and remit it for a new hearing on all issues before a new arbitrator. It stated that the same arbitrator “may have difficulty divorcing himself from his previous logic or conclusions”. The union argued that the appropriate remedy was to return it to the same arbitrator for reconsideration of the unreasonable portions of the decision “provided the issue to be remitted is distinct and severable” and one that could be addressed efficiently. The court held:
[52] I would order that the City’s issue of estoppel be remitted to the same Arbitrator, and direct that he consider the issue anew, including the evidence of the historical Collective Agreements and Proclamations. This is the most efficient course as the Arbitrator is familiar with the dispute. There is no reason offered (e.g., bias) that overrides the efficiency argument such that the issue should be remitted to another Arbitrator. In this case, the Arbitrator merely overlooked or forgot to consider the evidence of historical Collective Agreements and Proclamations.
Notice of hearing and procedural fairness
This case (Wright v. Lallion, 2024 ONSC 4132) involves a confusion over hearing notices, leading to a successful judicial review. A landlord filed an application with the Ontario Landlord and Tenant Board (LTB) to terminate a tenancy and to collect arrears of rent. The landlord then commenced a second application with the LTB, also seeking the termination of the tenancy. The tenants therefore received two hearing notices. The first notice, received in April, gave a hearing date of July 4, 2023. The second one, received in June, gave a hearing date of October 18, 2023. The Tenants did not attend the first hearing date because, they said, they misunderstood the notices and assumed the LTB hearing had been moved from July to October.
At the July 4th hearing, the tenants did not show up. The LTB member waited before starting but did not ask LTB staff to contact the tenants to find out why they were not there. The member found that the tenants had been served with a valid notice to end the tenancy and ordered the payment of arrears and costs, failing which the tenants had to vacate as of July 29, 2023.
The tenants requested a review of the decision — the LTB denied the request after a preliminary review - even though the reviewing member found that the tenants may have been confused. The court found that this was a breach of procedural fairness:
[11] The LTB has the authority to control its own process, and to do so efficiently, provided that it is also fair. The requirements for fairness are context-specific, including due regard for the LTB’s procedural choices. The other relevant factors that inform what procedural fairness will require include the importance of the decision to the individuals affected by it and the legitimate expectations of the persons challenging the Decision. In this case, those persons submit that they expected, and fairness required, a hearing in which they could participate.
[12] “Being reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.”: Zaltzman v. Kim, 2022 ONSC 1842 (Div. Ct.), at para. 3, quoting King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708 (ON SCDC). In King-Winton, the tenant wrongly believed the hearing was on a different date, even though the tenant had received proper notice. This Court granted the appeal and referred the matter back for a hearing.
[13] Having regard for the entire context of this particular case, I conclude that it was procedurally unfair to deny the review request at the preliminary stage, without a hearing. The central issue on the review was the denial of the right to be heard at the original hearing. Given the explanation put forward, and the Member’s finding about confusion, the LTB should have proceeded to a review hearing rather than effectively denying the tenants a hearing twice.
Controlling the hearing (“make it a little short”)
In Fahmi v. Liu, 2024 ONSC 4066, the court dealt with allegations that a hearing at the Landlord and Tenant Board had been rushed, leading to procedural unfairness:
[12] The appellant submits that she was denied procedural fairness because her evidence was rushed and she did not fully address all the points she wanted to make. The transcript shows that the Member asked the appellant’s paralegal to make it “a little short” given the time. The paralegal then asked the appellant to respond in her own words and “as briefly as possible”. The appellant then gave her answer, which is set out on about three pages of transcript. Afterward, the Member made some comments and requested final submissions. There was no objection by the paralegal or other statement to the effect that the appellant wanted to say more.
[13] The Member was entitled to control the process, including taking steps to focus the issues and efficiently complete the hearing, provided that the process was fair. Here, the Member took into account the time already taken by the appellant’s paralegal and asked the paralegal to be a little short. This led to the paralegal directing his client to be as brief as possible. The appellant now submits that she wanted to say more about the topics that she did testify about, focusing mainly on her medical difficulties and her questioning of the respondent’s motives. The transcript shows that both issues were raised by the appellant in her evidence. After she completed her response to her paralegal, there was no suggestion that the appellant was not finished. The appellant has not demonstrated that there was procedural unfairness.
Communication from the bench
A new edition of the Equal Treatment Bench Book (ETBB) has been published online for judges in England and Wales. It contains detailed discussion of appropriate ways to address participants in the court process and also includes this important point:
Effective communication underlies the entire legal process: ensuring that everyone involved understands and is understood. Otherwise, the legal process will be impeded or derailed…
Inappropriate language or behaviour is likely to result in the perception of unfairness (even where there is none), loss of authority, loss of confidence in the system and the taking of offence.
Conversely, where people feel that they have been heard and treated fairly, they are more able to accept an adverse outcome: procedural justice is important for the operation of the rule of law.
Links of interest
Virtual LTB hearings leaves some at a disadvantage
Yet, it’s not a system that works for everyone, according to lawyer and executive director of the Legal Clinic of Guelph and Wellington County, Stephanie Clendenning.
The clinic provides free legal advice for low-income people in Guelph and Wellington County, and “frequently” sees tenants struggle to navigate virtual hearings since they moved online during the pandemic.
“The struggle that you see people have when they’re trying to navigate it is really, really sad,” she said.
“I'm not saying that the digital first approach is bad in every way… There's no doubt that going digital for some people is actually great,” she said. “Just in a lot of ways (it) doesn't work, for our clients in particular.”
Virtual Hearings at Administrative Tribunals — Another Perspective
It may well be the case that, in a general sense, virtual hearings further access to justice for those participants who stand to benefit from the reduced travel, and potentially reduced costs and delays, associated with a virtual proceeding. It is also generally accepted that, with appropriate safeguards, a hearing by videoconference may permit an adjudicator to make credibility assessments that have traditionally required an in-person hearing.
But these generalizations – and pronouncements that virtual hearings are not inherently unfair, hearing platforms require no special skills, and tribunal IT departments can ensure participants have access – are divorced from the reality of the high stakes, high volume and high vulnerability context of the LTB. In that forum, the disparity between participants, and the systematic unfairness of virtual proceedings, is on display every day.
More on the recusal of Justice Jamal
Instead of deciding matters by letter or press release, when a judge’s impartiality is called into question by a party, it should be done by way of motion to which the judge should respond by issuing a decision with reasons.
AI and productivity in the office: US survey results
Nearly half (47%) of employees using AI say they have no idea how to achieve the productivity gains their employers expect, and 77% say these tools have actually decreased their productivity and added to their workload.
Congress must become a fortuneteller since Supreme Court knocked down Chevron deference
But even if Congress could improve its drafting prowess, no drafter, no matter how skilled and experienced, can completely eliminate gaps, vagueness or ambiguities in language. Language is inherently vague, and all writing has vagueness that leaves room for interpretation (read the Constitution). And vagueness can even be a conscious choice by the drafter to ensure flexibility and allow for meaning to change as society changes.
Furthermore, Congress isn’t a fortuneteller, able to completely predict new or unexpected developments in law. But Congress will have to be a fortuneteller — in addition to suddenly learning how to draft plain legal language. Gulp.
August holiday for An Adjudicator’s Toolkit
The Adjudicator’s Toolkit will be off for the rest of the month - another European tradition that I’m embracing. The month will be spent recharging, as well as working on some longer pieces for publication. I’ll be back on September 6.
Subscriber Survey
This is the 7th substantive newsletter and a good time to ask you, the subscribers, what you would like to see in this newsletter in the Fall. I am thinking of doing short (15 to 30 minute) podcasts about hearing management and decision writing, featuring conversations with adjudicators and practitioners.
If I am going to expand the offerings in this newsletter, I need to consider whether to charge for a subscription. That would mean that some content would be for paid subscribers only.
If you have any suggestions for an improved Adjudicator’s Toolkit, please send me a message or an email.
Thanks for your support and enjoy the rest of your summer!