Administrative Law Chapter 13 Notice and Discovery Audi Alteram Partem (Hear the Other Side) David J. Mullan By: Heddy Cordova

Introduction 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 This chapter focuses on the first of the two The right to be heard and thus given the opportunity to meaningfully to participate in the decision making process The right to be judged impartially

Section B: Notice 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? Which leads to the next part

Notice cont’d How much time and detail is adequate? 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? Two examples that were given by the author were Siting of transmission lines initial proposal turned down- adequate but since it was not understood it was inherently defective Live in remote area, possibility of pesticide spraying

Section C: Discovery 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

Discovery cont’d 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. Was successful was unsuccessful - The Board refused the discovery on the basis that to provide the documentation would undermine the Board’s need to have candid, complete and objective advice from its staff. A variation - Where rights to discovery exist, it may also be necessary to specifically ask for them.

Discovery cont’d 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 ..... I got the impression that the author is pointing at Economics and Politics

Discovery cont’d 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? In the Ontario Humans Rights Commission it did not but it did in the CIBA-Geigy case.

Discovery cont’d 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?