(c) Failure to Observe Principles of Natural Justice
"This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual "
The contents of the "rules of natural justice" are flexible and will change depending upon the circumstance of each case. The courts have attempted to define the rule on several occasions. In one Federal Court decision the general principles inherent in the rules of natural justice are set out, in part, as follows:
a tribunal is not required to conform to any particular procedure, nor to abide by rules of evidence generally applicable to judicial proceedings, except where the empowering statute requires otherwise;
there is an overall duty to act fairly in administrative matters, that is, the inquiry must be carried out in a fair manner and with due regard for natural justice;
the duty to act fairly requires that the person who is being examined and who may be subject to some penalty:
Blanchard v. Millhaven Institution Disciplinary Board, [1983] 1 F.C. 309 (F.C.T.D.) T-1504-82
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) [1992], 89 D.L.R. (4th) 289 (S.C.C.) Judgments of The Supreme Court Of Canada
The fact that a Board member has been on a panel hearing a case involving a relative of the claimant and dealing with an entirely different matter does not constitute bias in law.
Once an Umpire concludes that a claimant has not been given the right to a fair hearing, that is, has not been accorded procedural fairness, the matter should be sent back to the Board of Referees. The Umpire should not rule on the merit of any arguments being advanced in the appeal. Any comments which an Umpire makes in this regard can in no way be binding on the Board of Referees at the new hearing.
In order for a delay in the hearing of an appeal to constitute a breach of natural justice, the claimant must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings.
The determination of whether a delay has become inordinate depends upon the nature of the case and its complexity, the facts and the issues, the purpose and the nature of the proceedings, whether the respondent contributed to or waived the delay and other circumstances of the case.
An Umpire cannot use the unavailability of the transcript of the hearing before the Board of Referees as a ground for setting aside the Board's decision unless it can be shown that the absence of the tape or transcript effectively denied the respondent her right of appeal before the Umpire.
Canada (A.G.) v. Valladolid, 2004 FCA 142 A-238-03 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Scott, 2008 FCA 145 A-403-07 Judgment Of The Federal Court Of Appeal
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2009-04-29