Tribunal's Independent Legal Research Not Procedurally Unfair

• Published date: 28 June 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Employee Rights/ Labour Relations, Trials & Appeals & Compensation
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

When a judge or an adjudicator renders a decision that is not anchored in the pleadings, evidence, positions or submissions of the parties, appellate courts have overturned the underlying decision on the grounds that an error of law has been committed: Labatt Brewing Co. v. NHL Enterprises Canada L.P., 2011 ONCA 511; Moore v. Sweet, 2017 ONCA 182, leave to appeal S.C.C. allowed with judgment reversed 2018 SCC 52 (CanLII); and Rodaro v. Royal Bank of Canada, 2002 CanLII 41834 (ON CA). The error of law is that the losing party has been denied natural justice or procedural fairness.

However as seen in the recent Alberta case of Sysco Canada, Inc. v. Miscellaneous Employees, 2021 ABQB 459 (CanLII), an administrative tribunal can rely on cases that neither party expressly raised in argument to support a decision, without breaching procedural fairness.

This case concerned a judicial review of a decision in which the Alberta Labour Relations Board approved an application for certification of a bargaining unit consisting of a group of truck drivers who provided services to the applicant. The Board found that all of the drivers who performed services for the applicant were "dependent contractors" within the meaning of s. 1(1)(h.01) of the Alberta Labour Relations Code and therefore were included as "employees' in the bargaining unit.

Among other grounds for the judicial review, the applicant contended that it had been denied procedural fairness and natural justice because the Board relied on certain authorities which had not been raised by either party during the hearing. The applicant submitted that it did not have an opportunity to respond to those cases.

On the judicial review, the applicant identified two authorities in particular which it contended had not been presented at the hearing. By relying on these decisions, the applicant argued that the Board breached the audi alteram partem principle by deciding the case on a basis not raised by the parties and by failing to give the parties a reasonable opportunity to address case law and a line of argument that the Board relied upon, but that was not raised at the hearing.

In contrast, the respondent argued that the cases were before the Board because they were referred to in authorities that were placed before it.

The application judge rejected the applicant's argument because there was no suggestion that the cases had raised a new issue. Under Alberta law it had been determined that it is not improper for a...