C’est qui le maître chez l’arbitre?

A challenge, perhaps, from the Québec Superior Court to the established rule that tribunals are masters of their own procedures, as long as they do notviolate the rules of natural justice. A challenge, certainly, to anyone who thinks the distinction in administrative law between matters of procedure (for reviewing courts) and matters of substance (for decision-makers) is an easy one to grasp and apply.

Here, four individuals made complaints to a labour arbitrator. At the outset, the individuals’ union representative successfully sought an order excluding witnesses from the hearing. Two of the complainants were to be called and were thus excluded; the two others remained. Subsequently, however, the union sought to call one of the two complainants who had sat in on the arbitration up to that point. In addition, it changed representatives and sought to call the previous representative as a witness. While it is not clear from the facts, it is possible that the uncomfortable operation of changing union representatives mid-stream was what led to the difficulties. In any event, the arbitrator excluded the evidence.

Collier J. reversed the arbitrator’s decision to exclude. Interestingly, he classified the matter as one of procedural fairness, to which a standard of correctness should apply. This conclusion is not self-evident. Decisions on the admissibility of evidence can attract deference, as Lamer C.J. explained for a majority of the Supreme Court of Canada in Université du Québec à Trois-Rivières v. Larocque (1993):

The question before this Court is…whether, in erroneously deciding to exclude evidence relevant to the ground of dismissal which he has himself identified as being that which he must examine, the arbitrator necessarily commits an excess of jurisdiction.  In my view the answer to this question must in general be no.  It will be yes, however, if by his erroneous decision the arbitrator was led to infringe the rules of natural justice.

On this analysis, it is only the question of procedural fairness to which a standard of correctness applies. A standard of reasonableness applies to the decision-maker’s admissibility determination. In other words, Lamer C.J. drew a distinction between procedure (correctness) and substance (reasonableness). In the present case, following this approach, the questions for the reviewing court would have been (a) was the arbitrator’s decision to exclude the witnesses reasonable; and (b) did it render the process unfair?

By contrast, Collier J. asked whether the arbitrator’s decision to exclude the witnesses was correct, treating it is as a matter of procedure rather than substance. He examined whether the arbitrator’s admissibility determination was consistent with the general rule that parties should not be excluded from hearings. Concluding that it was not, he quashed the arbitrator’s decision in its entirety.

So much for the arbitrator’s claim to be maître chez lui!

But Collier J. does give a good, sharp explanation of the standard of correctness:

Il s'ensuit que le Tribunal doit entreprendre sa propre analyse de la question et il n'est nullement tenu d'acquiescer au raisonnement de l'arbitre.  Si le Tribunal n'est pas d'accord avec la conclusion de l'arbitre, il y substitue sa propre décision et rend la décision qui s'impose.

Like many things, the standard of correctness sounds better in la langue de Molière. 

H/T Ashley Kandestin au Blogue du CRL

Separate Silos

One of the reasons offered by the concurring judges in Multani for merging administrative review and constitutional review (at least when an individualized decision was challenged) was that keeping them separate and distinct would be confusing to lower courts and litigants. That view never seemed particularly compelling to me: lawyers and judges often make and are faced with arguments that overlap and complement one another.

Interestingly, in Pridgen v. University of Calgary, where students punished for making nasty comments about a professor on a Facebook group successfully sought the quashing of the disciplinary measures against them, two of the judges on the Alberta Court of Appeal expressly avoided dealing with an argument based on the Charter, preferring instead to resolve the case on administrative law grounds. Even Madam Justice Paperny, who dealt with the Charter issue (the tricky part being whether it applies at all to universities), addressed the administrative law argument separately, agreeing that the disciplinary decision was unreasonable.

Her judgment is also notable for its treatment of the reliance by the decision-maker on hearsay evidence. She correctly noted that administrative decision-makers have more leeway than courts in permitting the introduction of hearsay, but that this leeway was exceeded in the present case:

[59]           It is generally open to administrative tribunals to admit hearsay evidence. But the relaxation of the rules of evidence does not relieve an administrative decision‑maker of the responsibility to assess the quality of the evidence received in a reasonable manner in order to determine whether it can support the decision being made. And in a subsequent judicial review, the reviewing court must consider whether the decision is “one of a range of possible outcomes”, based on the evidence that was received and assessed by the decision‑maker. It is not an error for a reviewing judge to consider the quality of the evidence and the manner in which it was assessed in conducting that analysis.

[60]           The evidence on which the University relies is not merely hearsay, it is double or triple hearsay of an extremely vague nature from an unnamed source or sources. It is simply not reasonable to conclude that “injury” within the meaning of the Student Misconduct Policy has been established on the basis of the information provided to the Review Committee, and the chambers judge committed no error in reaching that conclusion.

Thus in response to the students' argument that the decision did not conform to the University's own guidelines, the University was unable to demonstrate that its reasoning was cogent or that sufficient evidence existed in support of its decision, and its decision was unreasonable.