ADMINISTRATIVE LAW
Judicial Review
Appeal from Federal Court decision (2003 FC 827) allowing judicial review of adjudicator’s decision cancelling respondent’s authority to practice as accredited veterinarian under Health of Animals Act—Respondent’s work for Canadian Food Inspection Agency extended to certification of horses exported to U.S.A.—Certified inspection of “Yankee Leader” near Windsor on July 3, 2001—That was false, horse having been taken to Michigan on July 2, not returned until July 16—Certificate issued without inspection—Respondent was advised accreditation was suspended and Agency proposed to cancel accreditation; hearing to be held at which he would be heard—Hearing conducted by Dr. Wilson, immediate supervisor of Dr. Clark who had suspended respondent—Dr. Wilson ordered cancellation of accreditation —Federal Court allowed judicial review application based on reasonable apprehension of bias—Also found reasons so deficient as to constitute reviewable error, Dr. Wilson not explaining why preferring evidence against respondent to that in his favour—Issues confined to fairness of adjudication procedure—As to questions of fact, Federal Court considered that upon “pragmatic and functional” analysis reasonableness simpliciter appropriate review standard—But questions of procedural fairness not subject to pragmatic, functional analysis—Courts must give legal answers to such questions: C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539—Whether Judge erred in finding reasonable apprehension of bias and, if not, were there other defects in adjudication procedure—Whether duty of procedural fairness required decision to be made by independent tribunal—Content of procedural fairness determined in specific context of each case: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 wherein L’Heureux‑Dubé J. set out non‑exhaustive list of factors useful in determining requirements of common‑law duty of procedural fairness in particular case—(1) The closer administrative process is to judicial process, the more likely procedural protections closer to trial model required—Considerations herein implied neither strong nor weak procedural protection—(2) As to nature of statutory scheme, adjudication arising out of alleged breach of contract, not pursuant to statutory provision—Judicial review available, statute containing no privative clause—This factor pointed to weaker safeguards—(3) As to importance of decision to individual, accreditation cancellation in itself not precluding respondent from working as veterinarian unless Ontario College of Veterinarians taking action in that regard but no evidence as to what it might do—No indication College would consider impugned decision as conclusive of respondent’s right to practice profession—This factor pointing to increased requirements of procedural fairness—(4) No evidence adjudication process contravened respondent’s legitimate expectation—(5) Choice of procedure—In ad hoc proceeding such as this, no requirement for independent tribunal—Respondent’s complaint based on proximity of relationship between Drs. Wilson and Clark—Dr. Wilson ignorant of facts prior to hearing—Not Dr. Clark who cancelled respondent’s accreditation—Dr. Wilson not responsible to Dr. Clark, would not be perceived as beholden to Dr. Clark for future consideration—Informed person viewing matter realistically and practically would not think Dr. Wilson would decide matter unfairly—Federal Court erred in reaching conclusion to contrary—Further erred in application of MacBain v. Lederman, [1985] 1 F.C. 856 (C.A.) by failure to recognize differences between process of appointing tribunals under Canadian Human Rights Act and selection of adjudicator herein—Procedural requirements of former resemble formality of court procedures, human rights legislation being considered “quasi‑constitutional”—Asking one’s superior (as here) to adjudicate matter quite different from Human Rights Commission’s Chief Commissioner appointing tribunal member who might be perceived as wanting to please Commissioner in hope of future favours— As to other concerns raised by respondent, absence of statutory or regulatory framework for cancellation process not per se indicating unfair process—Open to Parliament to opt for less formal process—Nor was failure to make list of exhibits, witnesses fatal, although to do so is good practice— Absence of recording not indication of unfairness where what happened at hearing undisputed—More serious was finding investigator, Dr. Small, made no presentation to adjudicator so respondent’s counsel had no chance to cross‑examine her— But such finding not borne out by evidence—While Dr. Small did not give viva voce evidence, she attended adjudication and Dr. Wilson received copy of her report—Dr. Small thus available for questioning but counsel chose not to do so— Turning to Judge’s finding case for urgency not compelling, Dr. Wilson’s reasons reveal significant policy considerations including Agency’s international reputation for integrity in livestock certification in order to preserve access to foreign markets—Fairness requirements in cases such as this satisfied—Judge’s conclusion impugned reasons provided “no explanation whatever” for preferring Dr. Small’s version to that of respondent, disagreed with—Reasons recounted respondent’s explanation export certificate signed due to clerical error—In circumstances, open to Dr. Wilson to rely on Dr. Small’s unimpeached evidence—Respondent is recorded in Dr. Small’s report as having admitted did not see “Yankee Leader” on July 3—Respondent told Dr. Small prepared Export Health Certificate as needed to return horse to Canada and never mentioned clerical error—Appeal allowed—Health of Animals Act, S.C. 1990, c. 21—Canadian Human Rights Act, R.S.C., 1985, c. H‑6.
Fetherston v. Canada (Food Inspection Agency) (A‑437‑03, 2005 FCA 111, Rothstein J.A., judgment dated 5/4/05, 22 pp.)