Procedure - Applicable Principles to Court of Appeal Hearings: 101

 

 

Applicable Principles to Court of Appeal Hearings: 101

Court of Appeal, is a Court of Law that is empowered to hear an appeal of any decision from the lower Trial Court Division or any other lower tribunal on the premise Court of Appeal is a Court of Law that is intended to correct the errors made by lower Courts.

Court of Appeal is usually restricted to examining whether the court and or judge made the correct legal determinations.. Furthermore, Court of Appeal is usually restricted to hearing appeals based on matters that were originally brought up before the trial court.

NATURAL JUSTICE

What are the rules of natural justice?

The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker.

Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.

A word used to refer to situations where audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply.

The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis.

These two basic legal safeguards must reasonably, govern all decisions, by judges or government officials when they take quasi-judicial or judicial decisions.

Three common law rules are referred to in relation to natural justice or procedural fairness.

The Hearing Rule

This rule requires that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker.

To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side.

When conducting an inquiry, in relation to a complaint, it is important that the person being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations.

The Appellant relies, that Natural Justice and procedural fairness requires administrators adhere to a fair decision-making procedure. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). This Maxim, in law means: no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person.

In Moreau-Bérubév. New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), [2002] 1 S.C.R. 249, the Supreme Court of Canada confirmed at paragraph 35, that the right to be heard is part of an obligation to act fairly, however, the duty of an administrative body to adhere to that right is to be decided on a case by case analysis:

The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority (see Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311; Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p. 653; Baker, supra, at para. 20; Therrien, supra, at para. 81). Within those rules exists the duty to act fairly, which includes affording to the parties the right to be heard, or the audi alteram partem rule.    The nature and extent of this duty, in turn, "is eminently variable and its content is to be decided in the specific context of each case" (as per L'Heureux-Dubé J. in Baker, supra, at para. 21)

In Munn v. Rust, 2006 NBCA 87 (CanLII) Justice M.E.L. LARLEE, J.A. stated the following regarding a matter where the Judge was refusing to consider a parties application to cross-examine the deponents of the affidavits, and consequentially the motion judge failed to exercise the Courts discretion judicially at from paragraph 13 to through 16 as follows:

[14]                                   I am of the view that, in refusing to consider Mr. Munn’s application to cross-examine the deponents of the affidavits, the motion judge failed to exercise her discretion judicially. Mr. Munn had a right to be heard on that issue, and procedural fairness required the motion judge to hear him. It is only after hearing Mr. Munn’s arguments in support of his request to cross-examine and any arguments made in reply, that the motion judge would have been able to judicially exercise the discretionary powers conferred by Rule 39.03. 

[15]                                   In my view, the appeals should be allowed on the common ground raised in both Notices of Appeal that allege that the motion judge erred in the exercise of the discretion conferred by Rule 39.03. It follows that the judge’s order striking out “those portions of the Plaintiff’s Statement of Claim which assert a claim against the Defendant, Edward B. Rust Jr.”, must be set aside. 

The Bias Rule

This second rule states that no one ought to be judge in his or her case. This is the requirement that the deciding authority must be unbiased when according the hearing or making the decision.

Additionally, investigators and decision-makers must act without bias in all procedures connected with the making of a decision.

A decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favouring one party over another.

Even where no actual bias exists, investigators and decision-makers should be careful to avoid the appearance of bias. Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.

When The Learned Trial Judge failed to understand the facts and arguments as presented by the Appellant and instead pursued only the arguments and assertions as presented by the Respondent, this predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised. The Appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge only accepted argument and evidence which favored the Defendant’s position, further the learned Trial Judge made obviously erroneous statements within the decision which reasonably must be based on incorrect information, contrary to the facts of the case.

133.    In R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Court’s decision sums up the case before the supreme Court and provide relevant insight into the reasonable apprehension of bias displayed by the actions and assertions of the Learned Trial Judge, the relevant section of R. v. S. (R.D.), [1997] 3 S.C.R. 484 is provided in the following:

 (2) Reasonable Apprehension of Bias

                    Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The courts should be held to the highest standards of impartiality. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. The trial will be rendered unfair if the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. Judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin.

                    If actual or apprehended bias arises from a judge’s words or conduct, then the judge has exceeded his or her jurisdiction. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judge’s decision. A reasonable apprehension of bias, if it arises, colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision. The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the judge’s other words or conduct. However, if the judge’s words or conduct, viewed in context, do not give rise to a reasonable apprehension of bias, the findings of the judge will not be tainted, no matter how troubling the impugned words or actions may be.

                  

                    The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic.

                    What the Judge actually intended by the impugned statements is irrelevant conjecture. Given the concern for both the fairness and the appearance of fairness of the trial, the absence of evidence to support the judgment is an irreparable defect.

The Evidence Rule

The third rule is that an administrative decision must be based upon logical proof or evidence material.

Investigators and decision makers should not base their decisions on mere speculation or suspicion.

Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based.

Evidence (arguments, allegations, documents, photos, etc..) presented by one party must be disclosed to the other party, who may then subject it to scrutiny.

Material misapprehension of the evidence

168.    The factual findings made by the Learned Trial Judge should not be accepted, because the Appellant can show that they are unreasonable, based on a material misapprehension of the evidence, and or tainted by a failure to consider material, relevant evidence. The effect is significantly unjustified prejudice and or injustice to the Appellant.

Discretion

250.    Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion as follows:

abuse of discretion.

1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making.

2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.

251.    The learned Trial Judge erred in law, in irregularly applying the Courts Discretion. The Appellant contends, The Learned Trial judge did display Abuse of Discretion. The Learned Trial Judge instead rendered a decision which is unsupported by the evidence and clearly on a erroneous finding of a material fact.

Capricious

In Matondo, Justice Harington of the federal Court of Canada wrote:

"To be capricious is to be so irregular as to appear to be ungoverned by law."

252.    The Appellant contends the Learned Trial Judge’s decision lacked the degree of “justification, transparency and intelligibility” required by the unreasonableness standard of review and considered a unreasonable decision.

Reference: In Canada Revenue Agency v. Telfer, 2009 FCA 23 (CanLII), Justice EVANS J.A, reviewed the unreasonableness standard of review, from Paragraph 29 through to 42.

Reference: In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 Justice Iacobucci J., stated regarding exercise of discretion being unreasonable from Paragraph 57 through to and including paragraph 68:

“An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.  Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it.  The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.”

Reversible error

Questions of law

In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235, this Court did provide a succinct view on the Courts standard of review. An appeal is not a re‑trial of a case, consideration must be given to the standard of review applicable to questions that arise on appeal. The standard of review on pure questions of law is one of correctness, Appellate courts require a broad scope of review with respect to matters of law, because their primary role is to delineate and refine legal rules and ensure their universal application. Action taken under statutory authority is valid only if it is within the scope of that authority, if it was not,  the Court did commit reversible error.

Findings of Fact

The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”.  A palpable error is one that is plainly seen.  The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard.  Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review.  If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference‑drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.