Tuesday, August 21, 2012

Disclosure in administrative matters

2127423 Manitoba Ltd. o/a London Limos v. Unicity Taxi Ltd. et al., 2012 MBCA 75 is a useful decision dealing with the level of disclosure needed for administrative decisions:
19                        Next, the nature of the question to be determined here was one related to economic regulation.  That places it lower on the spectrum for the required level of disclosure than, for example, professional discipline issues.  As Sara Blake explains, the nature of the hearing has an impact upon the degree of disclosure required, even to parties to the hearing. (Sara Blake, Administrative Law in Canada, 5th ed. (Markham: LexisNexis Canada Inc., 2011) at 37):

The extent of disclosure varies along a spectrum.  At one end is simply a requirement that the person be told verbally the gist of the factual subject and the nature of the decision to be made.  Further along the spectrum is the requirement to give advance written notice of the nature of the decision to be made and the key facts upon which it will be based.  To that requirement may be added the requirement to disclose the evidence to be presented to the decision maker.  At the far end of the spectrum, the party may be entitled to review all relevant information (except privileged material) including material which will not be submitted to the decisions maker.

20                        More disclosure is required where the mandate of a decision-maker is to adjudicate disputes or discipline wrongdoers.  Professional discipline will attract a very high standard of disclosure to a party, as will situations where a Charterright such as liberty or security of the person is at issue.  Less is required where the mandate is to "manage competing interests or to decide what is in the public interest when making regulatory or policy decisions" (ibid.).

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