Top Five Considerations When Challenging A Tribunal Decision For Unfairness

• Published date: 30 November 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Cannabis & Hemp, Corporate and Company Law, Trials & Appeals & Compensation
• Law Firm: Torkin Manes LLP
• Author: Mr Marco P. Falco

The principle of procedural fairness governs all aspects of tribunal hearings.

From the outset of the proceeding, an applicant is entitled to notice of the case to be met, the right to be heard, reasons for decision, the legitimate expectation that a certain procedure will be followed, and an unbiased tribunal - among other requirements.

Canadian Courts approach challenges to administrative fairness, usually by way of an application for judicial review, in context: what is fair in one hearing may not be in another.

A recent decision of the Ontario Divisional Court, Fox North Bay Inc. v. Ontario (Alcohol and Gaming Commission, Registrar), 2022 ONSC 5898 ("Fox North Bay") serves as a good reminder of the basic principles guiding the scope and content of the duty of fairness, also known as "natural justice".

Fox North Bay establishes that a tribunal proceeding that does not adhere to rudimentary concepts of due process will be quashed on judicial review.

The Permanent Ban

Fox North Bay arose out of a decision by the Registrar of the Alcohol and Gaming Commission of Ontario ("AGCO") to indeterminately ban the related applicant companies (the "Companies") from employing Mr. Nathan Taus (the "Applicant") in any position of business pursuant to the Companies' liquor and cannabis licenses under the Liquor License Act (the "LLA") and the Cannabis License Act (the "CLA").

The ban followed allegations by the Registrar that the Applicant had, among other things, committed various acts of non-compliance with the LLA, including exceeding lawful capacity limits at the Companies' restaurants and permitting drunkenness on the premises.

On November 19, 2020, the Registrar sent a "Designation Letter" to the applicants' counsel advising of general categories of the risk that the applicants posed to public safety. The letter did not particularize the specific allegations related to these general categories.

On December 22, 2020, the Registrar issued its decision confirming the applicants' level of risk and imposing six conditions on the applicants' liquor license, including prohibiting the Applicant from being employed in any capacity at the restaurant (the "Decision").

A similar condition was imposed on the Companies' cannabis licenses, on consent.

The applicants challenged the Decision in June 2021, raising the unfairness of the proceeding and the fact that the restaurant at issue was operated by an owner with an exemplary record.

The Registrar rejected the applicants'...