CITATION: Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856 |
DATE: 20101216 |
DOCKET: C51474 |
COURT OF APPEAL FOR ONTARIO |
Rosenberg, Cronk and Epstein JJ.A. |
BETWEEN |
Canadian College of Business and Computers Inc. and Pannirshelvan (Shelvan) Kannuthurai |
Appellants (Respondents on Appeal) |
and |
Superintendent, under the Private Career Colleges Act, 2005 |
Respondent (Appellant on Appeal) |
Sara Blake and Tom Schreiter, for the appellant |
Julian N. Falconer and Sunil S. Mathai, for the respondents |
Heard: October 18, 2010 |
On appeal from the order of Justices J.R.R. Jennings, G.I. Pardu and A. Karakatsanis of the Superior Court of Justice, sitting as the Divisional Court, dated July 7, 2009, with reasons reported at (2009), 251 O.A.C. 221. |
Cronk J.A.: |
[1] Until 2006, the operation of privately-run vocational schools in Ontario was regulated under the Private Career Colleges Act, R.S.O. 1990, c. P.26 (the “Act”).[1] The appellant Superintendent was the provincial official responsible for administration of and compliance under the Act.
[2] For approximately nine years (October 1996 to January 2006), the respondent, Canadian College of Business and Computers Inc. (“CCBC”), was registered under the Act to operate a private career college in Ontario, providing vocational educational services to both domestic and international students. The respondent, Pannirshelvan (Shelvan) Kannuthurai (“Kannuthurai”), is the president and sole shareholder of CCBC.
[3] In mid-January 2006, the Superintendent proposed to revoke CCBC’s registration under the Act due to various concerns regarding CCBC’s operations. After a lengthy hearing before the Licence Appeal Tribunal (the “Tribunal”) regarding the Super-intendent’s revocation proposal, the Tribunal directed the Superintendent to revoke CCBC’s registration. On appeal to the Divisional Court by the respondents, the Tribunal’s decision was set aside and a rehearing was ordered on the ground that the original hearing before the Tribunal was tainted by a reasonable apprehension of bias on the part of the presiding adjudicator.
[4] The Superintendent appeals to this court. She challenges the Divisional Court’s finding of bias and its decision to remit the issue of the proposed revocation of CCBC’s registration to the Tribunal for rehearing.
[5] For the reasons that follow, I would dismiss the appeal.
[6] The Superintendent was authorized under the Act to conduct inspections and examine the operations of private career colleges to ensure compliance with the Act (s. 13(1)). She was also empowered to refuse to renew, suspend or revoke the registration of a private career college if the registrant failed to satisfy the requirements of the Act or associated regulations (s. 6(2)).
[7] Pursuant to s. 5 of the Act and ss. 5, 6 and 20-25 of O./Reg. 939, R.R.O. 1990, registration or renewal of registration under the Act to conduct or operate a private career college required the operator of the college: (1) to be honest and financially responsible in the conduct of the college; (2) to employ qualified instructors; and (3) to adhere to prescribed rules governing the refund of fees paid by students on their withdrawal or expulsion from a vocational program.
[8] On January 19, 2006, the Superintendent delivered a notice of intention to revoke and immediately suspend CCBC’s registration under the Act, citing concerns about whether CCBC could be expected to conduct its private career college in a financially responsible manner, the quality of CCBC’s vocational programs, and alleged past conduct of CCBC and Kannuthurai that the Superintendent said afforded reasonable grounds for belief that CCBC would not carry on its college “in accordance with law and with integrity and honesty”, contrary to s. 5 of the Act. In response, the respondents invoked their right under s. 7(2) of the Act to a hearing before the Tribunal.
[9] The hearing was conducted before a single Tribunal hearing officer (the “adjudicator”). Kannuthurai, a non-lawyer, represented himself and CCBC throughout the hearing.
[10] At the conclusion of the 25-day hearing, the Tribunal held that there was “overwhelming and ample” evidence to substantiate the Superintendent’s claim that the respondents’ past conduct afforded reasonable grounds for belief that CCBC would not conduct its college operations in accordance with law and with integrity and honesty. In particular, the Tribunal found that:
(1) CCBC had overcharged its students and failed to refund monies, in the approximate amount of $500,000, owed to 116 students from 13 countries;
(2) CCBC had misrepresented to the Superintendent that it had issued refunds to applicable students;
(3) CCBC had failed to comply with three separate court orders requiring it to refund monies to three students;
(4) CCBC’s credit-rating was in the highest risk category. Further, CCBC had exaggerated the value of its assets;
(5) CCBC’s landlord had locked it out of its premises for eight days due to non-payment of rent, with consequent disruption of student programming; and
(6) notwithstanding repeated directions from the Super-intendent to CCBC to resolve the issue, CCBC’s premises did not comply with applicable municipal fire code requirements, thereby exposing CCBC’s students to unsafe and dangerous study conditions.
[11] In addition, in its reasons, the Tribunal made numerous strongly-worded adverse credibility findings against Kannuthurai. For example, the Tribunal found that Kannuthurai was “evasive and adversarial during his entire testimony”, that he had tried to intimidate several witnesses during his questioning of them, that his testimony was “inconsistent and lacked overall credibility”, that he “continually tried to mislead the Tribunal”, that he “deliberately and wilfully presented misleading evidence to the Tribunal throughout the hearing” and, further, that certain of the matters advanced by him at the hearing were “frivolous, vexatious and baseless”. The Tribunal’s reasons reveal that these and other adverse credibility findings against Kannuthurai were central to the Tribunal’s decision on the merits of the Superintendent’s revocation proposal.
[12] On September 28, 2007, the Tribunal ordered the Superintendent to revoke CCBC’s registration under the Act. It also directed the Superintendent to develop and take additional remedial steps “to protect the international students who might otherwise be misled by [CCBC]” and, in order to partially reimburse CCBC’s affected students for outstanding refund claims, ordered the forfeiture of a security bond posted by CCBC pursuant to the Act.
[13] The respondents appealed to the Divisional Court. They argued that five particular interventions by the adjudicator during the hearing gave rise to a reasonable apprehension of bias, thereby depriving them of procedural fairness.
[14] The Divisional Court concluded that the Tribunal’s decision to order the revocation of CCBC’s registration by the Superintendent was “amply supported by the evidence” and noted that this decision “was not seriously challenged by counsel [for the respondents]” on the appeal before that court. The Divisional Court also considered, and rejected, the respondents’ claim that three particular interventions by the adjudicator gave rise to a reasonable apprehension of bias. The respondents do not cross-appeal from these rulings by the Divisional Court.
[15] However, the Divisional Court also concluded that two other interventions by the adjudicator, “taken together in the context of these proceedings as a whole”, gave rise to a reasonable apprehension of bias by the adjudicator, which necessitated a new hearing before the Tribunal. These interventions involved:
(1) a statement by the adjudicator, made during Kannu-thurai’s examination of the Superintendent, that Kannu-thurai was “misleading the Tribunal”; and
(2) the “cross-examination” of Kannuthurai by the adjudi-cator regarding his possible ties to the Liberation Tigers of the Tamil Eelam (“LTTE”), an entity designated by the Canadian government as of April 8, 2006 as a terrorist group under s. 83.05 of the Criminal Code, R.S.C. 1985, c. C-46.
[16] The respondents did not object to these interventions during the hearing. Instead, they first complained of them before the Divisional Court, in support of their bias argument. In response, the Superintendent argued that, as a matter of law, the respondents’ failure to object earlier to the impugned interventions constituted waiver, thereby precluding the respondents from seeking to rely on the interventions to anchor their bias challenge.
[17] The Divisional Court held that the two interventions in question gave rise to a reasonable apprehension of bias that “constitute[d] a miscarriage of justice and trump[ed] any probability that the result of a re-hearing will be the same” and that denied CCBC “the procedural fairness to which it was entitled”. The Divisional Court also rejected the Superintendent’s waiver claim. Accordingly, by order dated July 7, 2009, the Divisional Court allowed the respondents’ appeal, set aside the Tribunal’s decision, and remitted the matter back to the Tribunal for re-hearing.
[18] The Superintendent appeals.[2]
[19] As framed by the Superintendent, there are three issues:
(1) Did the Divisional Court err in fashioning a remedy by failing to itself decide whether CCBC’s registration under the Act should be revoked or, alternatively, by failing to exercise its discretion to refuse to grant a remedy altogether?
(2) Did the Divisional Court err by holding that CCBC had not waived its right to allege bias?
(3) Did the Divisional Court err by holding that certain of the adjudicator’s impugned comments gave rise to a reasonable apprehension of bias?
I find it convenient to address these issues in reverse order.
[20] I begin with the governing principles regarding claims of reasonable apprehension of bias.
[21] There is no dispute that the Tribunal, as an adjudicative administrative body, owed a duty of fairness to the respondents in respect of the determination of whether CCBC’s registration should be revoked. As observed by Cory J. in R. v. S.(R.D.), [1997] 3 S.C.R. 484, at para. 92, “It is a well-established principle that all adjudicative tribunals and administrative bodies owe a duty of fairness to the parties who must appear before them.”
[22] This duty to act fairly included the duty to provide procedural fairness. And, “an unbiased appearance is, in itself, an essential component of procedural fairness”: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at p. 636. Thus, the demonstration of a reasonable apprehension of bias by the adjudicator would result in a violation of the duty of fairness owed to the respondents by the Tribunal.[3]
[23] The well-settled test for establishing a reasonable apprehension of bias was set out by de Grandpré J. in his dissenting judgment in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394:
[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. … [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
See also Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 60; S.(R.D.), at para. 31; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at para. 81.
[24] The threshold for a finding of real or perceived bias is high. Mere suspicion is insufficient to support an allegation of bias. Rather, a real likelihood or probability of bias must be demonstrated: S.(R.D.), at paras. 111-14. As stated in Wewaykum at para.
76, citing de Grandpré J. in Committee for Justice and Liberty at p. 395, the grounds for the alleged apprehension of bias must be “substantial”.
[25] The question whether a reasonable apprehension of bias arises is a highly fact-specific inquiry. See for example, Wewaykum, at para. 77. This court recently indicated in Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, at para. 230, leave to appeal refused, [2010] S.C.C.A. No. 91, that:
The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial. [Citations omitted.]
Although directed at interventions by a trial judge, I regard these comments as equally applicable to interventions by other adjudicative decision makers.
[26] The court also cautioned in Chippewas, at para. 243: “Isolated expressions of impatience or annoyance by a judge as a result of frustrations … do not of themselves create unfairness.” As the court explained at para. 231:
[T]here are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court’s process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings.
Again, these comments are apposite in this case.
[27] There is also a strong presumption in favour of the impartiality of an adjudicative decision maker: see for example Chippewas, at para. 243; Kelly v. Palazzo (2008), 89 O.R. (3d) 111 (C.A.), at para. 20, leave to appeal refused, [2008] S.C.C.A. No. 152; Peart v. Peel Regional Police Services Board (2006), 217 O.A.C. 269 (C.A.), at para. 39, leave to appeal refused, [2007] S.C.C.A. No. 10; Wewaykum, at paras. 59-60; R. v. A.G. (1998), 114 O.A.C. 336 (C.A.), at para. 42, aff’d [2000] 1 S.C.R. 439; S.(R.D.), at paras. 32 and 114.
[28] In the case at bar, the Divisional Court concluded that a reasonable apprehension of bias arose from the combined effect of the adjudicator’s comment to Kannuthurai that he was “misleading the Tribunal” and her subsequent repeated questioning of him concerning his possible association or involvement with the LTTE.
[29] Viewed in the context of the hearing as a whole, the adjudicator’s statement that Kannuthurai was “misleading the Tribunal” might fairly be seen as nothing more than a poorly phrased rebuke of Kannuthurai during the course of a lengthy and no doubt frequently frustrating hearing involving a self-represented individual who was unschooled in litigation procedures. The record makes it abundantly clear that this was a difficult hearing to manage. Further, as the Divisional Court observed, “In most respects, the adjudicator afforded Mr. Kannuthurai a generous and fair opportunity to present his case and was obviously at pains to assist an unrepresented party.” This observation, with which I agree, is also fully supported by the record.
[30] But that is not the end of the inquiry. The impugned statement must also be considered in the context in which it was made and in relation to the facts and circumstances of this particular hearing: Chippewas, at paras. 230, 246.
[31] The suggestion that Kannuthurai was “misleading the Tribunal” took place during a somewhat lengthy series of questions of Kannuthurai by the adjudicator concerning the content and accuracy of a resumé of a CCBC teacher filed at the hearing. The remark was made while Kannuthurai’s examination of the Superintendent on the content of the resumé in question was in progress. Presumably, the purpose of this part of the examination was to challenge the Superintendent’s concerns regarding the qualifications of CCBC’s instructors.
[32] As the Superintendent points out, the evidence concerning the résumé does not figure in the Tribunal’s reasons for decision. That, however, misses the point. The hearing before the Tribunal involved allegations of dishonesty, financial improprieties, and conduct akin to fraud by Kannuthurai, the principal of CCBC. Consequently, the cogency of the Superintendent’s evidence in support of those allegations and Kannu-thurai’s credibility and reliability were the central issues at the hearing. The Super-intendent, therefore, was a key witness from the defence perspective.
[33] The assertion that Kannuthurai was “misleading the Tribunal” directly challenged his credibility and reliability at a time when he was examining a crucial witness on the document that gave rise to the adjudicator’s questions. In this context, the adjudicator’s comment takes on added significance.
[34] Given the nature of the comment and the time at which it was made, I agree that what the Divisional Court termed the adjudicator’s expression of “open disbelief” in what she was being told by Kannuthurai could be seen by a reasonable observer of the hearing as indicating that the adjudicator had prejudged Kannuthurai’s credibility. Certainly the remark challenged the reliability of the information provided by Kannuthurai in respect of the very document about which he was seeking to elicit the Superintendent’s testimony.
[35] Moreover, and regrettably, the adjudicator’s credibility-related questioning of Kannuthurai did not end there.
[36] Some days after the completion of the Superintendent’s evidence, Kannuthurai began his own testimony before the adjudicator. During his evidence, he outlined his various efforts abroad to promote and recruit students to CCBC’s school in Ontario. Among other things, he said that he had returned to his native Sri Lanka in 1996 for this purpose but that, while there, he was detained in solitary confinement by Sri Lankan authorities for 25 days on suspicion of involvement in LTTE terrorist activities.
[37] This claim prompted the adjudicator to question Kannuthurai about whether he had ever been associated with the LTTE, whether he had encountered any other problems with the Sri Lankan authorities, and whether Canadian law enforcement officials were involved in investigating Kannuthurai’s sponsorship of his fiancée’s immigration application to Canada. In reply, Kannuthurai said that he had never been associated with the LTTE and that, apart from the 25-day detention he had described, he had not experienced other difficulties with the Sri Lankan authorities.
[38] The Divisional Court held that the adjudicator’s initial questioning on these subjects was intended to clarify Kannuthurai’s evidence and, hence, that it was unobjectionable. This holding is not challenged on this appeal.
[39] However, when the hearing continued on the following day, the adjudicator embarked on a second series of questions to Kannuthurai about his possible terrorist associations. On this occasion, she inquired of Kannuthurai as to: (1) whether there was “any information on you and any dealings of you with the Tamil Tigers in Canada”; (2) the basis of his 25-day detention in Sri Lanka; (3) whether he had ever supported the “Tamil Tigers”; and (4) whether he was a member of the “Tamil Tigers”. Read in context, these references to the Tamil Tigers meant the LTTE.
[40] At the conclusion of this questioning, the Superintendent’s counsel immediately interjected: “[T]hose are not our concerns. We’re not dealing with that at all.” The following exchange then took place:
[Adjudicator]: Yes. Yes, I know. But the, the thing is that … as this applicant is alleging a lot of things, that all this happened because there was somebody out there to, to get him. And the tribunal has to know, is there something, as he mentioned yesterday, he is being stalked, you know, he is being followed around by the, by our authorities.
[Superintendent’s Counsel]: Right.
[Adjudicator]: So the tribunal has one.
[Superintendent’s Counsel]: You’re just exploring his con-spiracy theory.
[Adjudicator]: Absolutely. Absolutely.
[Superintendent’s Counsel]: I see.
[Adjudicator]: You know, that, why the people were out to get him, is there anything more, you know?
[41] With respect to this questioning and the adjudicator’s proferred explanation for it, the Divisional Court ruled:
These comments cannot fairly be characterized as the adjudicator’s attempt to clarify the evidence or to bring rules of evidence and procedure to the attention of a self-represented litigant. The adjudicator … cross-examined [Kannuthurai] about his possible ties to a terrorist organization despite his evidence that he did not have such ties and despite the fact that this was not a basis of the proposal to revoke his licence. The comments and questions were irrelevant, inappropriate and improper in this context. An informed and reasonable observer would likely conclude that the adjudicator had pre-judged Mr. Kannuthurai’s credibility. His honesty and integrity were central to the issue before her. A reasonable person may have concluded that the Tribunal had already determined that Mr. Kannuthurai would not operate CCBC in accordance with the law, with integrity and with honesty.
For the reasons that follow, I agree.
[42] As the Superintendent acknowledges on this appeal, this resumed questioning of Kannuthurai about his possible association with the LTTE was “inappropriate and of little relevance to the proceeding”. I agree.
[43] However, in her factum, the Superintendent also argues that the Divisional Court erred in “extrapolating an appearance of prejudgment of credibility on the force of brief inappropriate comments near the end of a long and difficult hearing”. She submits that since Kannuthurai made several references during the hearing to a conspiracy against him – allegedly involving various Canadian law enforcement and national security agencies – the above-described questioning of him by the adjudicator, although inappropriate, did not give rise to a reasonable apprehension of bias. Rather, the Superintendent says, the adjudicator simply “misdirected herself regarding the proper bounds of relevance and pursued too far an issue that could have, and likely should have, been left alone”.
[44] As I have already said, I accept that this was a lengthy and difficult hearing, which posed significant hearing management issues. In particular, based on the record, I recognize that the self-represented respondents raised numerous issues that appear to have been wholly irrelevant or extraneous to the matters at issue at the hearing. However, I do not agree that the adjudicator’s renewed questioning of Kannuthurai about his possible ties to the LTTE was as benign as the Superintendent contends, even when considered in the overall context of this protracted hearing.
[45] As acknowledged by the Superintendent before this court, the questions at issue were both irrelevant and improper. At least inferentially, this was the position taken by the Superintendent’s counsel at the hearing, immediately following the adjudicator’s questioning. The questions had nothing to do with the matters at issue at the hearing.
[46] Like the Divisional Court, I reject the proposition that this renewed line of questioning by the adjudicator was justifiable because it reflected an effort by her to clarify Kannuthurai’s conspiracy allegations. Earlier in the hearing, the adjudicator had informed the respondents, in blunt and unambiguous terms, that the Tribunal proceeding was not the proper forum in which to pursue these claims, describing them as time-consuming and irrelevant “red herring[s]”.
[47] The adjudicator’s unprompted return to this line of questioning, after Kannuthurai had already denied any connection with the LTTE, signalled, at the very least, her discomfort with the truthfulness of his earlier responses to her questions on this issue.
[48] It bears repeating that Kannuthurai’s credibility and integrity were directly engaged at the Tribunal hearing. Indeed, they went to the heart of the grounds advanced by the Superintendent for the proposed revocation of CCBC’s registration under the Act. In this context, the questions at issue were neither trivial nor inconsequential.
[49] In all the circumstances, I agree with the Divisional Court that the adjudicator’s remarks on this occasion, viewed together with her earlier assertion that Kannuthurai had misled the Tribunal, created an appearance of unfairness such that an objective observer of the hearing would reasonably conclude that she had pre-judged Kannuthurai’s credibility. It follows that the Divisional Court was correct to conclude that the requisite high threshold to establish a reasonable apprehension of bias was met.
[50] In rejecting the Superintendent’s waiver claim, the Divisional Court reasoned:
While as a general rule bias allegations should be made directly and promptly, the most egregious comments arose on the twenty-third day of a twenty-five day hearing. [Kannuthurai’s] failure to raise concerns about comments made so late in the hearing does not reflect adversely on the genuineness of the apprehension of bias in these circum-stances. The litigant was self-represented and there is no suggestion that he held back as a tactic or to avoid an explanation by the adjudicator. As well, given that the allegations arise solely from the record, a decision of the adjudicator on this issue would not shed additional light on the facts that form the basis of the allegations.
I also agree with the Divisional Court’s analysis of this issue.
[51] There is no doubt that where the facts giving rise to a possible apprehension of bias become apparent during the course of a hearing, it is incumbent on the party affected “to put the allegation and the facts on which that party is relying to the decision maker at the earliest possible moment”: see David J. Mullan, Essentials of Canadian Law, Administrative Law (Toronto: Irwin Law, 2001), at p. 348. See also R. v. Curragh Inc., [1997] 1 S.C.R. 537, at para. 11; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at pp. 941-43. In that way, the challenged decision maker is afforded an opportunity to set out its position regarding the bias claim and a reviewing court will have the benefit of a complete record on the issue. This obligation assumes, however, that the pertinent facts are apparent to the affected party and that a voluntary and informed decision might be made whether to advance a bias claim based on those facts.
[52] Brown and Evans, in Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publication, 2010) at 11-77 – 11-78, note that objections on the ground of bias are generally deemed to have been waived if the affected party knew of the grounds for the bias claim and acquiesced in the proceedings “by failing to take objection at the earliest practicable opportunity” unless, for example, the affected party “was unrepresented by counsel and did not know of his right to object at the time” (quoting Woolf, Jowell and LeSueur, De Smith’s Judicial Review, 6th ed. (London: Sweet & Maxwell, 2007), c. 10-055ff).
[53] It is important to keep in mind that CCBC and Kannuthurai were self-represented litigants. Nothing on the record suggests that Kannuthurai, on his own or CCBC’s behalf, appreciated prior to the completion of the hearing that the adjudicator’s impugned comments might give rise to a reasonable apprehension of bias claim and, knowing that, that the respondents withheld their allegation of bias for use only if the outcome of the hearing was adverse.
[54] In my view, in the absence of some contrary indication in the record, it is unlikely that these self-represented respondents, although obviously aware of the adjudicator’s comments, were also aware of their right to object to the comments during the hearing on the basis of bias and that they elected not to do so at the first opportune moment for tactical or strategic reasons. This case is therefore distinguishable from those cases in which the affected party knew or was advised, during the proceeding at issue, of a potential bias claim and chose not to object: see for example, Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal (2005), 76 O.R. (3d) 321 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 428.
[55] In Taylor, a case relied on by the Superintendent to support her waiver claim, the matter of bias was not raised until almost eight years after the tribunal hearing and, even then, was only raised in a collateral proceeding. And in Taylor at p. 972, McLachlin J. (as she then was), suggested in respect of a bias claim (in dissent, although not on this point), that the fact that the affected party did not have counsel would militate against a finding of waiver where there was some delay in raising the bias objection.
[56] In this case, the facts giving rise to a potential bias claim emerged in the final days of the Tribunal hearing. The respondents advanced their bias argument as soon as they had retained counsel to conduct their appeal to the Divisional Court. That appeal was undertaken on a timely basis. I am satisfied that this is sufficient to defeat an argument of waiver.
[57] I turn now to what I regard as the core issue on this appeal, namely, the appropriateness of the remedy granted by the Divisional Court as a result of the perception of unfairness arising from the adjudicator’s conduct.
[58] The Superintendent argues that, having found that the Superintendent had a strong and largely uncontested case, the Divisional Court should itself have determined the question of whether CCBC’s registration under the Act should be revoked or, alternatively, that the Divisional Court should have exercised its discretion to refuse to grant a remedy altogether.
[59] There is no doubt that the Divisional Court, sitting on appeal from the Tribunal’s decision, had the power under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, (the “CJA”) to: (1) make any order or decision that ought to or could have been made by the Tribunal; (2) order a new hearing; or (3) make any other order considered to be just. This power was limited only by the requirement that a new hearing should not be ordered unless some substantial wrong or miscarriage of justice had occurred: s. 134(6) CJA. As I have said, the Superintendent contends that the Divisional Court also had the authority, in the exercise of its discretion, to deny any remedy at all, notwithstanding its finding of bias by the adjudicator, if the interests of justice so warranted.
[60] There is some force to the Superintendent’s attack on the remedy chosen by the Divisional Court. Not every breach of fairness or natural justice necessitates a new hearing; in exceptional cases, the court can exercise its discretion to deny a remedy: see for example, Mining Watch Canada v. Canada (Fisheries and Oceans), [2010] 1 S.C.R. 6, at paras. 51-52; Mobil Oil Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at pp. 228-29; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 76-78. That said, I would not interfere with the Divisional Court’s disposition regarding remedy for several reasons.
[61] First, it appears that the Superintendent did not request the Divisional Court to make its own determination concerning the Superintendent’s revocation proposal. Further, on the record before this court, it is unclear whether the Superintendent argued before the Divisional Court that no remedy should be granted in the circumstances of this case since, the Superintendent asserts, the result on any rehearing would be the same.
[62] Be that as it may, the Divisional Court’s reasons indicate that it was mindful of its discretionary power to refuse a remedy and, further, that it considered the issue of the utility of a rehearing and the potential unnecessary expenditure of resources, given the strength of the Superintendent’s case. In the Divisional Court’s view, however, the finding of a reasonable apprehension of bias constituted a miscarriage of justice and “trump[ed] any probability that the result of a re-hearing will be the same”. It is therefore clear that the Divisional Court did not fail to consider and did not give inadequate weight to the strength of the Superintendent’s case when fashioning a remedy.
[63] Second, I underscore that the adjudicator’s bias in this case occasioned a breach of the Tribunal’s duty of fairness to the respondents. The nature of that breach resulted in the denial to the respondents of a full and fair hearing before an impartial decision maker, as was their right. Hearing fairness was therefore compromised.
[64] In my opinion, where a reasonable apprehension of bias by an adjudicative decision maker is made out, as in this case, a new hearing is ordinarily the only appropriate remedy. The right to a full and fair hearing by an impartial decision maker is of fundamental importance to our system of justice, including in the administrative law domain: see Curragh, at para. 7. Indeed, the right to trial by an impartial tribunal is now enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. This right is particularly significant where, as here, the proceeding at issue involves self-represented litigants. I find it difficult to envisage a situation where, bias by an adjudicative decision maker having been established, a new hearing will be refused.
[65] I take comfort in this view from the Supreme Court’s decision in Newfoundland Telephone Co. in which the court stated at p. 645, quoting Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 661:
[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
See also Curragh, at para. 5; Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.), at para. 131, leave to appeal refused, [2001] S.C.C.A. No. 66.
[66] I recognize that the above-quoted principle enunciated in Cardinal has sometimes been overstated in subsequent cases. In that regard, I agree with the following observation of the Federal Court of Appeal in Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co. K.G., [2007] 4 F.C.R. 101, at para. 13:
To say that Cardinal stands for the proposition that any breach of any requirement of the duty of procedural fairness renders a decision invalid, or that any breach of any procedural rule constitutes a breach of the duty of procedural fairness, or that a court has no discretion to deny the relief sought, is to read the reasons of the Supreme Court of Canada out of context.
[67] Thus, for example, where the nature of the breach of procedural fairness is inconsequential, trivial or merely technical in nature, a reviewing court may determine to deny the discretionary remedy of a rehearing: see Uniboard, at para. 24. That said, as I will explain, the breach of fairness in this case is far removed from the realm of merely inconsequential, trivial or technical matters.
[68] The Superintendent relies on Young v. British Columbia College of Teachers, [1999] B.C.J. No. 1908 (B.C.S.C.), aff’d (2001), 198 D.L.R. (4th) 292 (B.C.C.A.) and Lisyikh v. Canadian Law Enforcement Training College, [2007] O.J. No. 3621 (S.C.) to argue that, in exceptional cases (for instance, where no useful purpose would be served by requiring a rehearing), the court may dismiss an appeal notwithstanding a breach of procedural fairness.
[69] I do not think that these cases assist the Superintendent. Young is the only case identified by the Superintendent where the remedy of a rehearing was denied in a bias case. However, in Young, the events giving rise to the appearance of unfairness based on bias took place after the completion of the hearing on the merits and after the misconduct alleged against the aggrieved party had been admitted by him. Only the penalty phase of the hearing was affected. Moreover, in Young, the appellant did not seek a rehearing as a remedy for the perception of bias by the involved decision maker but, rather, was content to have the matter at issue determined by the reviewing court on the basis of the available record. In Lisyikh, the procedural fairness deficiencies at issue did not relate to bias allegations. The deficiencies in that case involved notice defects that were found to be “more formal than substantial” (at para. 44).
[70] Here, the procedural unfairness was bias – a defect that tainted the respondents’ fundamental right to an impartial hearing. As indicated by a majority of the Supreme Court in S.(R.D.), at para. 100:
If a reasonable apprehension of bias arises, it colours the entire trial proceedings and it cannot be cured by the correctness of the subsequent decision. … Thus, the mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from other words or conduct of the judge. [Citations omitted.]
[71] In addition, the bias in this case arose during the course of a hearing in which the respondents’ ability to continue to earn a livelihood through the operation of a private career college was at stake. The seriousness of this issue for the respondents lends additional force to the need to preserve hearing fairness.
[72] In light of these considerations, I see no basis on which to interfere with the Divisional Court’s discretionary decision to require a rehearing in this case. I would add that the rehearing should be conducted by a different Tribunal adjudicator.
[73] Accordingly, for the reasons given, I would dismiss the appeal. The respondents are entitled to their costs of the appeal and of the application for leave to appeal to this court, fixed in the total amount of $15,000, inclusive of disbursements and all applicable taxes.
RELEASED:
“MR” “E.A. Cronk J.A.”
“DEC 16 2010” “I agree M. Rosenberg J.A.”
“I agree G.J. Epstein J.A.”
[1] Effective September 18, 2006, the Act was replaced by the Private Career Colleges Act, 2005, S.O. 2005, c. 28, Sched. L. The matters at issue on this appeal arose when the Act was in effect.
[2] The respondents’ cross-appeal from the Divisional Court’s decision to award no costs was withdrawn during oral argument before this court.
[3] I note that, when dealing with an allegation of a breach of natural justice or of procedural fairness, it is unnecessary to address the question of the applicable standard of review; rather, the court must determine whether the duty of fairness has been breached: see for example, London (City) v. Ayerswood Development Corp. (2002), 167 O.A.C. 120 (C.A.), at para. 10.