Steinecke Maciura LeBlanc Barristers & Solicitors


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	Professional Practice and Liability on the Net


	Fairness: In the Eye of the Beholder
	by Bernard LeBlanc
	October 2006 - Vol 8 No 1

	Administrative proceedings are increasingly being challenged on the basis of suggestions that the process wasn’t fair or the person(s) involved in investigating or deciding the matter was either actually biased or demonstrated what is called a “reasonable apprehension of bias”. For example, practitioners facing allegations of professional misconduct sometimes argue that the investigator conduced a flawed investigation or that the panel hearing the matter did not decide the matter fairly. While these sorts of allegations are occasionally made in the course of judicial proceedings as well, they are sometimes more likely to succeed before lay tribunals because they are often staffed by less experienced and, frequently, non-legally trained persons. One case where this sort of allegation succeeded was in Stewart v. Lac Ste. Anne (County) Subdivision and Development Appeal Board [2006] A.J. No. 1136 (C.A.). In that case, a commercial landowner applied for a building permit which was opposed by an adjacent property owner. Before the adjacent landowner’s submissions to the Board were complete, one of the members of the tribunal hearing the matter declared that she had already made up her mind and she subsequently voted in favour of the proposal. The permit was ultimately granted and the adjacent owner appealed on the basis of bias. The Alberta Court of Appeal held that the decision could not stand. The basic principle here is that decision-makers cannot make a decision until a hearing is complete. Equally important, panels cannot even appear to have decided a case before the end of the hearing. Readers may be familiar with trial judges exhorting juries not to deliberate before all of the evidence is presented, before counsel complete their final arguments and the judge instructs the jury on the law. The same principle applies to tribunals. Not only should panel or committee members avoid discussing the merits of a case before the case is finally complete, they must certainly not make up their minds or even suggest that they have before then. Investigators should be equally careful, although they are not held to quite the same high standard. Provided that investigators maintain an “open mind” and are prepared to listen and consider evidence that is contrary to their current view of the case, they cannot usually be successfully challenged. However, for both investigators and panel members, it is usually better not to express an opinion on any substantial matter until their respective inquiries are complete. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome.]



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.