New Evidence in Hearings

Hearings de novo are strange creatures of administrative law. In effect, they are a complete redoing of a prior administrative decision – by a different body using a hearing format. They are quite unlike a review or appeal which are generally confined to the issues and information before the original tribunal, and which consist primarily of legal arguments and submissions.

One of the criticisms that regulators frequently make of hearings de novo is that the applicant or registrant can introduce new evidence and new arguments that were never before the original decision-maker. However, a recent decision indicates that this expanded scope of consideration also applies to the regulator: D. Michael Goldlist v. Registrar, Alcohol, Cannabis and Gaming Regulations and Public Protection Act, 1996, 2022 ONSC 2505 (CanLII), https://canlii.ca/t/jnxpm.

In that case, an applicant for a cannabis retail manager licence was refused by the regulator on the basis that there were reasonable grounds for belief that the applicant would not act in accordance with the law or with integrity, honesty, or in the public interest. The primary basis of the refusal was that the applicant had not made full and candid disclosure on their application. The applicant appealed to an independent Tribunal which held a hearing de novo. The Tribunal found that the answers on the application form did not warrant a refusal of a licence, but that the conduct underlying the questionable disclosure (i.e., a criminal finding, forced entry into premises to remove property, allegations of bad faith in a civil proceeding) provided a basis to refuse the licence. The applicant argued that this changed the nature of the issues to be addressed and was procedurally unfair.

The Court disagreed.

The Appellant was aware of the case he had to meet. During the hearing de novo, he raised new issues and produced new evidence. Submissions were made with respect to the totality of the evidence. The LAT [Tribunal] properly considered and weighed the evidence and submissions….

Finally, given that hearings before the LAT are hearing de novo, there was no legitimate or reasonable expectation that the Tribunal would not consider the totality of the evidence. The Tribunal is not limited to the particulars set out in the Proposal….

The Proposal put the Appellant’s honesty, integrity, and his ability to act in compliance with the law and the public interest squarely at issue. The Appellant was aware that the allegations in the Proposal involved, amongst other things, misrepresentations regarding the nature of his civil litigation and his involvement in the illegal cannabis dispensary. He also received disclosure related to these particulars before the hearing commenced.

The Court also noted that some of the evidence relied upon by the Tribunal in supporting the refusal to issue a licence were introduced by the applicant. The Tribunal was entitled to consider that evidence.

A notice of proposal that triggers a hearing de novo is not as strictly construed as, for example, a notice of hearing in a disciplinary matter.

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