Common law duty of fairness does not always require that a party be permitted legal representation

Telfer v. The University of Western Ontario, 2012 ONSC 1287 holds that there the common law duty of fairness does not, in an administrative context, always require that a party be permitted legal representation at a hearing.  Where a matter is straightforward, the potential sanctions minor and examination of witnesses limited a lawyer may not be required. The Court holds:

 

Was the denial of legal representation before the Vice-Provost a breach of the SPPA or a denial of procedural fairness?

[20]      The applicant argues that he was entitled to a hearing before the Vice-Provost, and both s. 10 of the SPPA and the common law duty of procedural fairness required that he be permitted legal representation at that hearing.

[21]      The University argues that the SPPA does not apply to the hearing before the Vice-Provost, and the refusal to allow legal representation to the applicant did not result in a denial of procedural fairness.

The requirements of procedural fairness

[22]      Courts have been reluctant to interfere in the academic functions of universities unless a student or faculty member has been treated with “manifest unfairness” (Paine v.  University of Toronto (1981), 34 O.R. (2d) 770 (C.A.) at p. 776; Mulligan v. Laurentian University, [2008] O.J. No. 2570 (Ont. C.A.) at para. 22; Dawson v. University of Ottawa, [1994] O.J. No. 1148 (Div. Ct.) at para. 7).

[23]      The content of the duty of procedural fairness depends on the context and requires a consideration of several factors: the nature of the decision being made, the nature of the statutory regime, the importance of the decision to the individuals affected, the legitimate expectations of those individuals, and the procedures chosen by the decision-maker (Baker v. Canada (Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23-27).  As the Supreme Court of Canada said in Baker at para. 28:

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

[24]      The common law has not recognized a general right to have legal representation before an administrative tribunal when that tribunal is required to observe the rules of natural justice (Laroche v. Canada reflex, (1981), 131 D.L.R. (3d) 152 (F.C.A.) at p.171; Donald Brown and John Evans, Judicial Review of Administrative Action in Canada (Canvasback, looseleaf), pp. 10-26 to 27 (August 2011)).  Rather, whether there is a right to legal representation in a hearing before a decision-maker requires an examination of the particular context to determine whether the individual would be denied a fair opportunity to present his or her case if denied representation by counsel.   As Ledain J. stated in Laroche, above at p. 171:

Whether the right to legal representation should be recognized in a particular case would appear to depend on whether, having regard to the nature of the issues involved and the hearing required, the denial of the right to legal representation would deny the person affected a fair opportunity to present his case. Where the case calls for an oral hearing at which there is to be an opportunity to adduce evidence and to cross-examine witnesses then a right to legal representation ought as a general rule to be granted. But the courts have indicated that they will consider whether it is appropriate to impose the additional burdens of cost, delay and technicality that generally result from legal representation on the particular decision-making process ….

[25]      The applicant relies on the decision of the Court of Appeal in Khan v. University of Ottawa, [1997] O.J. No. 2650, which held that a student had a right to appear and present her case orally before an Examinations Committee and then the Senate Appeals Committee, because her case turned on an assessment of her credibility.  While the Khan case did not deal with the right to counsel, like Baker, above, it makes clear that the content of the duty of fairness turns on the interests at stake and the nature of the decision being made.

[26]      The applicant also relies on Healey v. Memorial University of Newfoundland 1992 CanLII 2756 (NL SCTD), (1993), 106 Nfld. & P.E.I. R. 304 (Nfld. S.C.).  There, a medical student had been accused of very serious allegations of physical, sexual and emotional violence by his former partner.  Barry J. (as he then was) found that there had been a denial of procedural fairness by the university, because the student was not given disclosure of a number of important documents, and he was denied the right to cross-examine the complainant.  Barry J. remarked that the credibility of the complainant was key to determining the extent of the abuse alleged, which would require a detailed examination of dates, times and places (at para. 49).  He also took into account the seriousness of the consequences for the student.  Not only did the student risk being expelled from his studies in medicine, and therefore from his chosen career; the allegations were criminal in nature and very damaging to his reputation.  In the circumstances, Barry J. concluded that the student should have the right to lead evidence, cross-examine witnesses and have the assistance of counsel.

[27]      The facts in Healey are very different from the facts in this case.  Here, in contrast to Healey, the issues raised were not complex: the allegations related to three emails, the videotaping incident and the Society meeting (for which there was an audio recording). There were no significant issues of credibility that needed to be resolved, and therefore, no need for cross-examination that required the assistance of counsel. 

[28]      The applicant argues that he should have been given the right to counsel for two reasons.  First, he submits that the allegations against him were serious, since harassment and intimidation can amount to criminal conduct. Second, the sanctions available under the Code can include expulsion.  Therefore, given the important interests at stake, he argues he should have had the right to counsel.

[29]      I disagree. This is not a case where the allegations were of criminal nature, as in Healey; rather, the allegations were of harassment of another student in the form of interference with her ability to participate comfortably in university activities and to use university premises.

[30]      Moreover, on the facts of this case, the applicant could not reasonably have thought he was facing a sanction of suspension or expulsion.  The Code makes it clear that those penalties are reserved for the most serious misconduct (see p. 5).  Indeed, the penalty he received, a formal reprimand, was a modest one, which would not be recorded on his transcript and could only be provided to administrative units on a need-to-know basis (see p. 8 of the Code).