The Right to Know Your Adjudicator

It may seem obvious that knowing who has made a decision affecting rights is an important part of procedural fairness. The Federal Court recently revisited this issue in Kimberly Transport v. Vancouver Fraser Port Authority. The Port Authority suspended and then terminated Kimberly Transport’s license to drop off and pick up shipping containers. It did not name the decision maker and refused to provide the name when asked. Kimberly filed a mandamus application.

The court relied on the decision of the Federal Court in Wah Shing Television Ltd. and Partners v Canadian Radio-television and Telecommunications Commission 1984 FCJ No 161 (TD) for the proposition that the duty of fairness requires that the parties be told which members of a tribunal participated in making a decision. In that decision Justice Strayer held that where there is a legal duty to provide a fair hearing, it is a corollary of that duty that the interested parties be able to determine which members of the tribunal have participated in making the decision.

The rationale for this duty is two-fold:

  • • without the names, the interested parties are prevented from attacking a decision based on real or apprehended bias; and
  • • are also prevented from determining whether the decision-maker had the authority to make the decision

The Port Authority attempted to rely on three decisions to support its view that it was under no obligation to disclose the decision maker, all of which the court distinguished. In Wihksne v. Canada (Attorney General), 2000 FCJ NO. 1178 the reasons and decision of the tribunal were not signed by the three members but the reasons stated the names of the three decision-makers in an opening paragraph. In Gramaglia v Canada (Attorney General), 1998 FCJ No 1384 (TD) the tribunal provided the applicant with two documents: a signed decision letter stating that the appeal was dismissed for reasons that were attached. Those reasons were unsigned. In Gosselin v Halifax (Regional Municipality) Taxi Committee, 2000 NSJ No 31, the Nova Scotia Supreme Court found no breach of natural justice because the decision was unanimous and the applicant, having sat through the hearing and heard the decision, knew the identity of the decision-makers.

It is a best practice to have signed decisions on file. However, given the concerns about identity theft, it may not be a good practice to provide original signatures to parties and is certainly not a good practice to post signatures on the internet.

Calendar

Circles mark dates which Ian is  available based on the last update of the calendar.

Publications

Columns published on slaw.ca

"Chapter 22: Unions and Collective Agreements", in Palmer and Snyder, Collective Agreement Arbitration in Canada, 4th edition, 2009 and 5th edition, 2013.

“Non-consensual expedited processes: the intersection of fairness and expediency”, Lancaster House.

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