Making Adverse Findings against a Party Who Withdraws an Appeal is a Breach of Procedural Fairness

Somewhat obvious, one would have thought! One can imagine the surprise of the applicant in Can-Euro Investments Ltd. v. Ollive Properties Ltd., 2013 NSCA 80, who, having withdrawn an appeal before the Utility and Review Board was nonetheless strongly criticized in a decision handed down weeks later.


The relevant facts can be briefly recounted:

[26]            As the transcript of the proceedings before the Board makes clear, as soon as Ollive’s counsel withdrew their appeal, Can-Euro’s counsel asked the Board to issue an order dismissing the appeal by consent.   Ollive’s counsel reiterated her position that her instructions were only to withdraw the appeal.  The discussion between the parties and the Board then turned to the subject of costs.  Nothing more is said about an order, let alone any decision from the Board.  Ms. Ring simply states “That concludes our proceedings.”  After a short break requested by Can-Euro, the Board’s final statement to the parties before closing the hearing was “Thank you.  Proceedings are terminated.”

[27]            There is nothing at all in the transcript to even remotely suggest that the Board was reluctant to issue an order, or had any concerns about its content, or was in any way contemplating dealing with the merits of the case which was far from over, or was intent on making factual findings relating to the proceedings which had, at that point been “terminated”.

Saunders J.A. had no difficulty finding that to issue a decision which was critical of the applicant was, in the circumstances, a breach of procedural fairness:

[31]            Can-Euro says the Board’s actions in this case violated important, fundamental requirements of procedural fairness on any number of fronts.  Respectfully, I agree.   To my mind, the most serious failings were the Board’s  adjudicating the merits before hearing all the evidence; making adverse findings after the appeal had been abandoned and without notice to the parties or giving those affected any chance to be heard; and expressing conclusions which impugned the integrity and good faith of Can-Euro and its president, the late Dr. Otto Gaspar which found no support in the record and would very likely have been dispelled had all the evidence been heard.

The breach of the audi alteram partem principle seems, unfortunately, quite obvious. Such breakdowns in communications are to be guarded against.