Procedural Fairness: Listen to the Other Side

Written by Daniel Standing LL.B., First Reference Editor

A current case of the Saskatchewan Court docket of Attraction, Saskatchewan (Employment Requirements) v North Park Enterprises Inc., 2019 SKCA 69 (CanLII), illustrates the significance of the Latin maxim, audi alteram partem which implies “hear to the different facet,” or “let the different facet be heard as effectively.” All administrative our bodies, together with labour boards, should adjust to the guidelines of pure justice and procedural equity. Inside these guidelines there exists the responsibility to act pretty, which incorporates permitting the events the proper to be heard. On this case, the Saskatchewan Labour Relations Board issued a call which ran afoul of this important precept in a number of cases.

Key information

The Director of Employment Requirements issued a wage evaluation towards North Park Enterprises Inc., (the Employer) requiring it to pay greater than $6,000 to Sean Bridgette, an worker who was laid off and claimed he was owed pay in lieu of discover, in addition to call-out pay. The Employer efficiently appealed the wage evaluation to an adjudicator who diminished the quantity considerably, eliminating the pay in lieu of discover and leaving $184.04 for call-out pay. The Director then appealed the adjudicator’s resolution to the Labour Relations Board on a number of grounds of enchantment. The day earlier than the listening to, Mr. Bridgette’s spouse, performing as his consultant, despatched an e mail to the Board containing written submissions on Mr. Bridgette’s behalf. Neither she nor the Board shared the e mail with the different events, who had been unaware of it. Following a listening to, the Board issued a written resolution, cancelling the adjudicator’s resolution and remitting the matter again to the adjudicator together with instructions. Ten days after the listening to, the Board despatched a replica of the e mail containing Mr. Bridgette’s submissions to the Director.

The Director was profitable earlier than the Board on the deserves of its enchantment, however appealed to the Saskatchewan Court docket of Attraction anyway, asserting that the Board dedicated errors of legislation by making numerous findings and issuing instructions towards it in violation of procedural equity. These findings and instructions involved the timeliness of the Employer’s enchantment of the wage evaluation, and the Director’s standing to take part at an adjudication. The third discovering involved the applicability of a specific part of The Saskatchewan Employment Act, respecting the time for submitting an enchantment.

In the end, the Court docket of Attraction agreed with the Board on these factors, holding that the Director’s objections to the Board’s instructions pertaining to timelines and the Director’s skill to take part at the adjudication had been well-founded. The improper parts of the Board’s order and administrators had been struck out and the matter was remitted to the adjudicator.

Points for the courtroom’s dedication

In its resolution, the Saskatchewan Court docket of Attraction addressed three separate points: 1) whether or not the Board breached its responsibility of procedural equity in figuring out points that weren’t correctly earlier than it; 2) whether or not the Board breached its responsibility of procedural equity by contemplating written submissions that weren’t supplied to the Director; and three) whether or not the matter needs to be remitted again to the Board or the adjudicator.

Procedural equity and audi alteram partem

The courtroom started its evaluation of procedural equity by recognizing the responsibility of procedural equity that the Board owes to all litigants who come earlier than it. A key part of that responsibility is guaranteeing that every social gathering is conscious of the points that the Board will decide, and every social gathering will need to have a chance to reply to these points. The Court docket determined that on this matter, the Board determined points that weren’t correctly earlier than it, and the Director was disadvantaged of the required alternative to adequately reply to the points. The Court docket targeted on three points that the Board thought-about and determined:

The timeliness of the submitting of the Employer’s discover of enchantment

This matter was by no means in dispute at the adjudication, and the adjudicator confirmed the events’ mutual understanding that the enchantment was began inside the time restrict. Regardless of that reality, the Board addressed the subject of its personal volition and directed the adjudicator to take the steps obligatory to guarantee the enchantment was filed in a well timed method. The Court docket discovered that this was a breach of procedural equity (even in the absence of a ultimate resolution of the Board on the subject) as a result of the subject was by no means in dispute earlier than the adjudicator. Because of this, the offending paragraphs had been struck from the Board’s resolution, and the instructions given to the adjudicator had been cancelled.

The Director’s standing at the adjudication

Throughout submissions to the Board, Ms. Bridgette (the worker’s spouse and advocate) made a really temporary submission which basically alleged that an Employment Requirements Officer instructed Mr. Bridgette that his spouse couldn’t characterize him at the enchantment listening to. Neither the Director nor the employer responded to this submission earlier than the Board. There was no discover that this subject was earlier than the Board, there having been no discover of enchantment. Moreover, there was no indication from the Board that it could contemplate this subject. Nevertheless, that’s precisely what the Board did. It concluded that in conditions when the Director or his designate doesn’t characterize the worker, he would don’t have any standing at the listening to and will solely attend as a witness. Once more, since the subject was not correctly earlier than the Board, its discovering violated procedural equity and prompted the Court docket to strike the offending paragraphs of the Board’s resolution and cancel any instructions given to the adjudicator.

Applicability of 15-day enchantment deadline to the Director

The scope of the Director’s proper of enchantment underneath s.4-10 of the Act was correctly earlier than the Board as a problem for it to determine. Nevertheless, the Board spent important time contemplating whether or not the Director was restricted to interesting an adjudication resolution inside 15 days, as set out in s.4-8(3) of the Act, or whether or not it had a vast time to enchantment underneath s.4-10(b). The Board discovered that 4-8(3) utilized, however allowed the enchantment to proceed anyway due to substantial compliance with that provision. The Court docket discovered that the Board’s dedication that the 15-day time restrict underneath s.4-8(3) utilized was in violation of procedural equity since, like the two earlier points, the Director had no discover that this subject can be decided. Though this specific discovering triggered the Director no prejudice, it was nonetheless declared to be of no pressure and impact for its violation of the rules of procedural equity.

The failure to share a replica of Ms Bridgette’s e mail

The Court docket said that if the Board was conscious that the different events had not seen the e mail, it ought to have alerted them to its receipt of the e mail. Nevertheless, the Court docket famous that there have been no substantial variations between Ms. Bridgette’s e mail and her oral submissions earlier than the Board. The Director had ample time to reply to Ms. Bridgette’s submissions at the listening to. In the absence of any prejudice to the Director, the Court docket declined to discover a breach of procedural equity on this level.

The choice to remit and never quash the Board’s resolution

In the ultimate a part of its resolution, the Court docket defined why it selected to take away solely the offending parts of the Board’s resolution as an alternative of quashing the complete resolution and remitting it to the Board for a rehearing. On this case, the substantive subject was whether or not cheap layoff discover had been supplied. Since the Board’s procedural equity errors all involved procedural (as opposed to substantive) points, it was potential for the Court docket to separate the good parts from the dangerous parts, leaving the Board’s substantive resolution intact.


This case illustrates the elementary significance for an administrative decision-maker to enable the events an opportunity to be heard on points that may kind a part of the resolution affecting them. A celebration who’s denied that proper could effectively have an appealable case on the foundation of procedural equity.

Procedural Fairness: Listen to the Other Side


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