CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

 

1.1 General Characteristics of Administrative Proceedings

1.1.1 The Board is a Tribunal

1.1.1.5 The Adversarial Principle: the Rules of Natural Justice

It is the task of a tribunal to decide disputes by applying the law at the conclusion of an adversarial dispute in accordance with the principles and rules applying to the administration of justice and in accordance with a procedure designed for this purpose. This adversarial principle is enshrined in s. 7 of the Canadian Charter Section 7 of the Canadian Charter and also in s. 2(e) of the Canadian Bill of Rights Section 2(e) of the Canadian Bill of Rights, as follows: "no law of Canada shall be construed or applied so as to: (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; . . ."^{75 Citation 75}

Section 115 of the Act  indirectly imposes a duty on the Board of Referees to observe the principles of natural justice but it is s. 80 of the Regulations   Section 80 of the Regulationswhich expressly confers a right to request a hearing in proper form before the board. This right belongs to the claimant, the employer or any other person subject to a decision of the Commission.

The principles of natural justice, especially the audi alteram partem rule, require that an interested individual have an opportunity to be heard and to make his or her arguments but this does not necessarily mean that a hearing must be held unless the Act and the Regulations require it. Here the hearing is mandatory when the individual in question expressly requests one in writing beforehand, when the appeal is filed or within seven days of receipt of the notice of appeal, as appropriate. What happens when requests are made late? Section R. 85(5) provides that the chairperson of the board may at any time order that a hearing be held.

In our view, the claimant or the employer could rely on s. 7 of the Charter on the basis of a right to psychological security or a right to a reputation to demand a hearing, in which case the chairperson should not refuse it, especially "where a serious issue of credibility is involved".^{76 Citation 76}

The claimant may chose a non-conventional form of hearing such as teleconference, videoconference or telephone call; but once the claimant has chosen the form and received the decision, he or she cannot then claim that there has been a breach of natural justice.^{77 Citation 77}

It has recently been decided that when an issue of the credibility of the claimant or another person has been raised, natural justice requires a hearing "in person" and not by teleconference.^{78 Citation 78}

If the individual in question has not made a timely request for a hearing, he or she may request a review under s. 120 of the Act   Section 120 of the Actfor one of the reasons set out in that provision. Where appropriate, he or she may appeal to the Umpire but may not allege that the Board of Referees failed to observe a principle of natural justice by not holding a hearing.

The hearing of which we are speaking here is a kind of quasi-judicial hearing that is similar but not identical to a hearing in a court of law. What does this mean? The case law has used the expressions "informal hearing" (audition sans formalité) in addition to "structured hearing," "appropriate hearing" and "true hearing."^{79 Citation 79} In quasi-judicial proceedings, as opposed to proceedings of an administrative nature, the hearing is not merely a simple meeting or interview at which ideas are exchanged and a discussion takes place. It is not a meeting that offers an opportunity for people to vent their frustrations.^{80 Citation 80} It must be a hearing that allows for an adversarial debate, where the parties can make their arguments, examine and cross-examine witnesses and plead before an impartial arbitrator or judge.^{81 Citation 81} To this end, a structured or true hearing implies a procedure and not a free-for-all or an artistic mishmash that would be inconsistent with the concept of administration of justice. A long line of decisions by the Court of Appeal and the Umpire has defined the various components of natural justice that apply before the board.^{82 Citation 82} However, the claimant or any other sufficiently notified party is free to attend and put forward arguments.^{83 Citation 83} 

Even though a structured hearing implies a simpler, more accessible and less formal procedure than that of the law courts, its characteristic features are as follows:

• the hearing is necessarily preceded by the giving of formal notice to the parties concerned;
• the parties are entitled to make their arguments and
       - adduce testimonial and documentary evidence, to examine
       - and cross-examine witnesses and to plead;
• the parties are entitled to be represented by counsel;
• the tribunal observes certain rules of evidence; and
• the tribunal deliberates and renders a decision with reasons.

 

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