Judicial Review of Procedural Fairness

For a number of years now the Courts have asserted that it will review most decisions of regulators on the basis of the reasonableness, rather than the correctness, of the decision. One exception is that no deference is given to the issue of whether the regulator acted with procedural fairness. Either the procedure was fair or it was not. In Brooks v. Ontario Racing Commission, 2017 ONCA 833, Ontario’s highest court held that the adequacy of the reasons for decision of a regulator was not a matter of procedural fairness and should be evaluated on a reasonableness basis. The Court re-affirmed that the adequacy of the reasons is not a “stand alone” ground of judicial review. In this case the Court found that the reasons provided adequately explained the conclusion that Mr. Brooks had permitted his brother to be involved in his practice despite the brother’s suspension by the regulator. The Court specifically held that “reasons need not reference every piece of contradictory evidence”.

The Court also held that the notice provided by the regulator was adequate. At least where the allegations relate to ongoing conduct, alleging that the conduct occurred over a period of time was sufficient. Similarly, an allegation that the practitioner “surreptitiously permitted [his brother] to participate in their racing enterprise when he was not authorized to do so” permitted a finding of “fraud”.

The Court also held that the tribunal member was permitted to rely on s. 4.3 of the Statutory Powers Procedure Act to continue to act when their term of office ended on the basis that the hearing “commenced” with preliminary motions.

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