Sometimes Fairness is About The Golden Rule

September 18, 2022

By Brian Babcock

“Do unto others as you would have them do unto you” is a lesson most judges seem to retain from school days and may be an important consideration in how those judges view issues of fairness in administrative decision making.

THE ISSUE

When somebody requiring a registration certificate in a regulated industry applies for an administrative decision to issue or renew the certificate, that tribunal must make their decision in a way which is procedurally fair. A lack of procedural fairness can lead to a successful judicial review at Divisional Court in Ontario.

But what do we mean by procedural fairness?

As with most situations where we are determining whether something is fair, it is very much a matter of the facts of the particular case. An applicant who is rude, disrespectful, and disruptive may not be entitled to the same treatment as somebody who is respectful to government representatives. Prior bad conduct may be evidence that an applicant will not obey the regulatory requirements, which is often sufficient reason to deny registration.

THE CASE

This is illustrated in the case of Sobczyk v. Ontario. The applicant was a tobacco farmer who required a registration certificate to produce and sell raw leaf tobacco. Between 2013 and 2019 the applicant and his family were intimidating, aggressive and obstructionist towards inspectors on multiple occasions. Police had to be called on two occasions. In January 2020 the applicant became angry during an inspection and threatened to remove the inspectors from his property. In July 2020 he insisted on being present for the inspections and insisted that the inspectors attend by appointment only. In September and December 2020, he refused access to the inspectors. The applicant’s brother threatened the inspectors. In 2021 the applicant was refused his certificate on the basis that there were reasonable grounds to believe that he would not comply with the Tobacco Tax Act based on prior bad conduct. Despite being refused the certificate, the applicant continued to grow tobacco and his tobacco was eventually seized.

At the administrative hearing, the tribunal relied upon ministry reports, rather than requiring oral testimony from the inspectors. The applicant did not have any evidence to contradict most of what was in the inspection reports.

He applied for judicial review. He complained that he had been denied procedural fairness because he was not given an opportunity to cross examine the inspectors. However, he had not raised that objection at the hearing. Any right he had to complain about unfairness had been waived. The Divisional Court was satisfied that there was enough evidence in the inspection reports to support the argument that the applicant would not comply with the Act if he continued to have a registration certificate. As a result, the administrative decision was reasonable, which is all that is necessary for a decision maker to succeed against an applicant on judicial review.

TAKEAWAYS

Most cases are won by the party who has the “moral high ground”. Given the emphasis on fairness in administrative law, that is particularly true of judicial reviews. This case illustrates the importance up treating people fairly if you expect fairness in return.

HOW WEILERS LAW CAN HELP YOU

Weilers Law has a proud tradition of expertise in administrative law. Our progressive approach includes encouraging clients and potential clients to consult us early in the administrative process, so that we can give advice that will encourage the decision maker to be open minded and fair. If the decision is not satisfactory, we have a solid track record on judicial reviews.  We understand how judges think, and aim to paint a picture of you occupying the moral high ground. If you have issues with administrative decision making, Weilers Law may be the right lawyers for you.