A hearing de novo may cure procedural defects occurring at an earlier stage of proceedings

AlGhaithy v. University of Ottawa, 2012 ONSC 142, a recent Divisional Court decision, holds that, at least in the administrative law context, a hearing de novo may cure procedural defects occurring at an earlier stage of proceedings.  This is not a new concept.  Justice Weatherston made the same point over thirty years ago in Re Polten and Governing Council of University of Toronto (1975), 8 O.R. (2d) 749 (Div. Ct.) at 768:

 

… if the final appeal is in effect a new trial, and not an appeal in the ordinary sense, I do not see why any want of natural justice in the intermediate appeals is not cured.

 

 

The Court in AlGhaithy holds:

 

[38]           A number of cases have held that a hearing de novo may cure procedural defects occurring at an earlier stage of proceedings (see, for example,McNamara v. Ontario (Racing Commission), [1998] O.J No. 3238 (C.A.) at para. 26).  As the majority stated in Khan v. University of Ottawa,1997 CanLII 941 (ON CA), 1997 CanLII 941 (Ont. C.A.) at para. 41:

 

Curing errors made at first instance depends on the seriousness of the initial error, the procedures followed by the appellate body, the powers of the appellate body, the way these powers were exercised and the weight the appellate body attributes to the initial decision. The closer the appeal is to a complete reconsideration, with fair procedures, by a body that does not attribute significance to the initial decision, the more likely the defects will be cured.

 

[39]           In Khan, the Appeals Committee hearing did not cure the procedural defects.  The applicant student had failed a course after she was graded on the basis of three examination booklets marked by the examiner.  She appealed, claiming that she had handed in four examination booklets.  The Court of Appeal found that she was denied procedural fairness at the Faculty level, because she was not given an opportunity to appear before the Examinations Committee to explain her position.  That unfairness was not cured at the level of the University’s Senate Committee, because the Committee had not conducted a hearing de novo at which the applicant was allowed to appear and make representations (at para. 40).