The three principles of procedural fairness for regulators are: give notice, provide an opportunity to respond, and then consider the response. Most challenges to regulatory decisions relate to the first two principles. A typical example of a breach of the third principle is where a decision-maker forms their decision before the process for receiving evidence and submissions has finished. A recent example of the application of the third principle, albeit in a more unusual way, is found in: Boua v. Office of the Independent Police Review Director, 2024 ONSC 2172 (CanLII).
Ms. Boua made a complaint about her detention by police officers. Ms. Boua is most comfortable communicating in French. Her complaint was made in French. The police investigator only spoke English and relied upon an informal translation provided by another police officer. The police only communicated with Ms. Boua in English which Ms. Boua translated through a translation app. Ms. Boua was not interviewed as part of the investigation (although a third-party witness was). Ms. Boua requested a review of the decision to take no action to the Office of Independent Police Review. The Director determining the review also did not speak French and relied upon a summary prepared by their bilingual counsel. Ms. Boua sought judicial review of the Director’s decision not to require further investigation by the police.
The Court identified the primary issue as being whether Ms. Boua had been understood throughout the process. The Court said: “Understanding and having one’s language understood by the decision-maker is an important part of the right to be heard.” The Court found that there was some evidence that Ms. Boua had not been understood during the police investigation and, indeed, in the review. The Court held that “it was incumbent on the Director to advert to this issue in his reasons.” In fact, the Director indicated that any gaps in the police investigation were cured through the review process where the Director had Ms. Boua’s extensive submissions. However, the Director relied only on a summary of the submissions by his bilingual legal counsel (which summary was not placed before the Court) and, in fact, did not address some of Ms. Boua’s significant points in his reasons.
The Court returned the complaint for reconsideration with a new decision and reasons.
Regulators need to ensure that they understand the submissions of the parties to meet the third principle of procedural fairness.