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Sometimes the facts of a case are so egregious as to cry out for a remedy. A recent example is Montgomery c. Commission municipale du Québec, 2022 QCCS 199. It put me in mind of a classic Irish case, Kiely v. Minister for Social Welfare [1977] IR 267.
First, Montgomery. M, formerly a journalist with the Montreal Gazette, is an elected politician in Montreal, where she served as the mayor of a district of the city. She became embroiled in a dispute with the City of Montreal. The City complained that she had breached the City’s code of ethics and, ultimately, the Commission agreed.
The Commission regulates municipal politicians in Quebec. After the Charbonneau Commission into corruption in the province’s construction industry (a documentary is now streaming on Crave!), the Commission was given adjudicative functions along with its investigative functions.
It is not unusual for a contemporary administrative agency to be authorized to perform multiple functions, of course. Indeed, in Langlois c. Commission municipale du Québec, 2021 QCCS 2725, Masse J held that the Commission’s overall structure is not tainted by institutional bias. But what happened next certainly was unusual.
First, two weeks after the City lodged its complaint with the Commission, M was sent a demand letter written on paper headed by the logos of the City and the Commission (at paras. 79-80); the opening sentence of the letter stated that it was being sent jointly by the two (at para. 81); and the letter was signed by a representative of the City and of the Commission (at para. 82).
Second, the City and the Commission sought an injunction, again acting jointly (at para. 86), something which raised judicial eyebrows when the request for injunctive relief was considered by the judges seized of the matter (at paras. 87-88). This judicial eyebrow-raising caused the Commission to withdraw as a party (at para. 89), but the proceedings against M continued.
Third, in their quest for injunctive relief, the City and the Commission both filed extensive affidavits and shared information (at paras. 92-93).
The question for Pless J was whether the fact that the Commission had so closely collaborated with the City, which was the complainant against M, vitiated the disciplinary decisions.
On the one hand, the Commission does not owe a duty of fairness to potential respondents to disciplinary action at the investigative stage (at paras. 77, 84) and may thus engage in conduct which would otherwise raise a reasonable apprehension of bias.
On the other hand, the Commission has a basic obligation of independence. As Dalphond J (as he then was) put it, investigators “doivent être en mesure de mener leur enquête selon leur intuition, soupçon et information, sans être influencés par les dirigeants de l’Ordre, la personne enquêtée, la personne qui a demandé l’enquête, s’il en est, ou les amis ou parents des uns ou des autre” (Parizeau, ès qualités Avocate c. Barreau du Québec, 1997 CanLII 9307 (QC CS), at para. 64, cited at para. 71). Here, however, the complainant and the Commission had worked very closely together.
In Pless J’s view, working hand in hand with a complainant on litigation related to a matter under investigation and subject ultimately to a decision by another branch of the Commission created an “appréhension de dépendance” (at para. 96). The decisions resulting from the process had, as a result, to be quashed (at para. 97).
As I mentioned above, this puts me in mind of Kiely (No. 2), which was not a case about independence but rather involved a process which was so unusual as to amount to a breach of procedural fairness. The case was about a widow’s entitlement to a death benefit after her husband passed away several years after a workplace accident: there was a dispute about the causal connection between the accident and the husband’s death. The benefit was refused by an appeals officer: the officer insisted that the widow and her witnesses give evidence in person; but accepted the report of a medical assessor in writing only, without giving the widow any chance to ask questions of the assessor.
The Supreme Court held that this was improper. Henchy J commented:
Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination. The dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content. Any lawyer of experience could readily recall cases where injustice would certainly have been done if a party or a witness who had committed his evidence to writing had been allowed to stay away from the hearing, and the opposing party bad been confined to controverting him simply by adducing his own evidence. In such cases it would be cold comfort to the party who had been thus unjustly vanquished to be told that the tribunal’s conduct was beyond review because it had acted on logically probative evidence and bad not stooped to the level of spinning a coin or consulting an astrologer. Where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and, therefore, effectively unquestionable evidence on the other side has neither the semblance nor the substance of a fair hearing. It is contrary to natural justice.
Sometimes, then, a process can simply be irredeemably unfair, even if those involved have the best of all intentions. That was the case in Kiely and I think the same can be said of Montgomery.
PHOTO: Stock
Sometimes the facts of a case are so egregious as to cry out for a remedy. A recent example is Montgomery c. Commission municipale du Québec, 2022 QCCS 199. It put me in mind of a classic Irish case, Kiely v. Minister for Social Welfare [1977] IR 267.
First, Montgomery. M, formerly a journalist with the Montreal Gazette, is an elected politician in Montreal, where she served as the mayor of a district of the city. She became embroiled in a dispute with the City of Montreal. The City complained that she had breached the City’s code of ethics and, ultimately, the Commission agreed.
The Commission regulates municipal politicians in Quebec. After the Charbonneau Commission into corruption in the province’s construction industry (a documentary is now streaming on Crave!), the Commission was given adjudicative functions along with its investigative functions.
It is not unusual for a contemporary administrative agency to be authorized to perform multiple functions, of course. Indeed, in Langlois c. Commission municipale du Québec, 2021 QCCS 2725, Masse J held that the Commission’s overall structure is not tainted by institutional bias. But what happened next certainly was unusual.
First, two weeks after the City lodged its complaint with the Commission, M was sent a demand letter written on paper headed by the logos of the City and the Commission (at paras. 79-80); the opening sentence of the letter stated that it was being sent jointly by the two (at para. 81); and the letter was signed by a representative of the City and of the Commission (at para. 82).
Second, the City and the Commission sought an injunction, again acting jointly (at para. 86), something which raised judicial eyebrows when the request for injunctive relief was considered by the judges seized of the matter (at paras. 87-88). This judicial eyebrow-raising caused the Commission to withdraw as a party (at para. 89), but the proceedings against M continued.
Third, in their quest for injunctive relief, the City and the Commission both filed extensive affidavits and shared information (at paras. 92-93).
The question for Pless J was whether the fact that the Commission had so closely collaborated with the City, which was the complainant against M, vitiated the disciplinary decisions.
On the one hand, the Commission does not owe a duty of fairness to potential respondents to disciplinary action at the investigative stage (at paras. 77, 84) and may thus engage in conduct which would otherwise raise a reasonable apprehension of bias.
On the other hand, the Commission has a basic obligation of independence. As Dalphond J (as he then was) put it, investigators “doivent être en mesure de mener leur enquête selon leur intuition, soupçon et information, sans être influencés par les dirigeants de l’Ordre, la personne enquêtée, la personne qui a demandé l’enquête, s’il en est, ou les amis ou parents des uns ou des autre” (Parizeau, ès qualités Avocate c. Barreau du Québec, 1997 CanLII 9307 (QC CS), at para. 64, cited at para. 71). Here, however, the complainant and the Commission had worked very closely together.
In Pless J’s view, working hand in hand with a complainant on litigation related to a matter under investigation and subject ultimately to a decision by another branch of the Commission created an “appréhension de dépendance” (at para. 96). The decisions resulting from the process had, as a result, to be quashed (at para. 97).
As I mentioned above, this puts me in mind of Kiely (No. 2), which was not a case about independence but rather involved a process which was so unusual as to amount to a breach of procedural fairness. The case was about a widow’s entitlement to a death benefit after her husband passed away several years after a workplace accident: there was a dispute about the causal connection between the accident and the husband’s death. The benefit was refused by an appeals officer: the officer insisted that the widow and her witnesses give evidence in person; but accepted the report of a medical assessor in writing only, without giving the widow any chance to ask questions of the assessor.
The Supreme Court held that this was improper. Henchy J commented:
Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination. The dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content. Any lawyer of experience could readily recall cases where injustice would certainly have been done if a party or a witness who had committed his evidence to writing had been allowed to stay away from the hearing, and the opposing party bad been confined to controverting him simply by adducing his own evidence. In such cases it would be cold comfort to the party who had been thus unjustly vanquished to be told that the tribunal’s conduct was beyond review because it had acted on logically probative evidence and bad not stooped to the level of spinning a coin or consulting an astrologer. Where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and, therefore, effectively unquestionable evidence on the other side has neither the semblance nor the substance of a fair hearing. It is contrary to natural justice.
Sometimes, then, a process can simply be irredeemably unfair, even if those involved have the best of all intentions. That was the case in Kiely and I think the same can be said of Montgomery.
