Monday, May 7, 2012

Duty of disclosure in an administrative context

Sackville Trenching Ltd. v. Nova Scotia, 2012 NSCA 39 is a useful case dealing with the duty of disclosure in an administrative context.

Sackville Trenching was issued an Administrative Penalty for an alleged violation of the Occupational Health and Safety Act, S.N.S. 1996, c. 7 in the construction of a trench.  Sackville Trenching appealed the Administrative Penalty to an Occupational Health and Safety Appeal Panel.  The Panel upheld the Administrative Penalty but reduced it from $1,000 to $800.  Sackville Trenching appealed that decision.   Following the filing of its Notice of Appeal, it was discovered that the Appeal Panel had documents in its possession relevant to the appeal which had not been disclosed to Sackville Trenching.  The Notice of Appeal was amended alleging that the Panel had breached its duty of procedural fairness to Sackville Trenching by failing to disclose the documentation in its possession.  The appeal was allowed and the Court held:


[23]         In the text, Sara Blake, Administrative Law in Canada, 4th ed. (Markham, Ont. LexisNexis Butterworths, 2006) at p. 36, the author explains the duty of procedural fairness as follows:


Fairness requires that a party who will be affected by a decision must first be informed of the case to be met.  Without knowledge of the matters in issue one cannot effectively exercise one’s right to be heard.  Disclosure enables a party to review the alleged facts, to prepare to challenge them with evidence that rebuts them or reduces their impact and to prepare submissions explaining how they should be weighed and analyzed.


[24]         Administrative Law in Canada continues at p. 37:


Relevance is an essential criterion for determining whether disclosure is required.  Irrelevant information need not be disclosed.  There are degrees of relevance.  The more important the information is to the decision, the more likely it should be disclosed.  Other criteria for determining the extent of disclosure include the extent to which the party’s rights are at stake in the proceeding, the extent to which the party is entitled to call and cross-examine witnesses and the extent to which disclosure of documents is necessary for the party to exercise those rights.


[25]         I have already explained above the use that was made of the documents by the Tribunal and their reliance on facts contained in those documents.  They were clearly relevant to the case which Sackville Trenching had to meet and the documents should have been disclosed.  Sackville Trenching was entitled to make submissions on how they should be weighed and analyzed.  Failure to do so was a breach of the Panel’s duty of procedural fairness to Sackville Trenching.


[26]         I am satisfied that this breach is sufficient for ordering the rehearing of Sackville Trenching’s appeal.  As a result, it is not necessary for me to address Sackville Trenching’s other grounds of appeal set out in its original notice of appeal and factum.



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