Professional figure skating coaches (the “Patersons”) brought an application for judicial review of the procedure adopted by Skate Canada which had commenced an investigation into complaints against the Patersons alleging dishonesty, fraudulent misconduct and personal harassment. The court found that the procedures put into place by Skate Canada did not meet the criteria of due process in that the Patersons would not be allowed to cross-examine the complainants. The court granted an order prohibiting Skate Canada from proceeding with the charges against the Patersons until procedures were in place to guarantee fairness.

22. February 2005 0

Administrative law – Hearings – Conduct of hearings – Judicial review application – Administrative decisions – Procedural requirements and fairness – Natural justice – Jurisdiction of tribunal

Paterson v Skate Canada, [2004] A.J. No. 1542, Alberta Court of Queen’s Bench, December 22, 2004, Moen J.

The Patersons were professional figure skating coaches who moved to Grande Prairie, Alberta, where they established a business and entered into a contract for coaching services with Grande Prairie Skating Club, a member club of Skate Canada. In August 2001, the Patersons were advised by Skate Canada that there had been a series of complaints alleging dishonesty, fraudulent misconduct and personal harassment in relation to another Skate Canada member. The complaints had been made by a number of parents of the children in the Patersons’ skating classes. Investigators were appointed and an investigation ensued. The Patersons objected to the procedure adopted by Skate Canada. Skate Canada proceeded with the investigation but before it was completed, the Patersons commenced application for judicial review.

At the hearing, Skate Canada argued that the application had been brought prematurely as the process was only at the complaint stage and “charges” had not yet been laid. The court rejected this argument and found that the application for judicial review was not premature as Skate Canada had already determined that the Patersons could not put evidence before the committee and would not be permitted to cross-examine the complainants and other witnesses.

With respect to the standard of review, the court noted that there was no substantial decision to be reviewed and that the question instead was whether the procedure was fair. Therefore, the primary focus was on evaluating factors relevant to determining whether Skate Canada adhered to procedures and safeguards required for the case before it and cited Moreau-Berube v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249. The court indicated that it was also required to conduct a purposive analysis to determine whether the decision-making process involved a duty of fairness and if so, what the content of that duty was, citing Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

The court stated that a general duty of procedural fairness should be applied to all administrative decision making processes. In Baker, supra, the Supreme Court of Canada set out several factors to be assessed by the courts in determining whether the duty of fairness had been met, including:

  1. the nature of the decision being made and the process followed in making it;
  2. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
  3. the importance of the decision to the individual or individuals affected;
  4. the legitimate expectations of the person challenging the decision; and
  5. the choices of procedure made by the body itself.

In this case, the court noted that the allegations against the Patersons were of dishonesty, harassment and abuse of power which were clearly serious allegations against coaches of children. Therefore, the court found that Skate Canada should make its decision based on a thorough review of proper evidence. This would include providing the Patersons a serious opportunity to refute the allegations.

The court found that there was no statutory scheme at issue here. However, Skate Canada had a constitution. Under the Complaints, Suspension and Expulsion Policy (the “CSE Policy”), the board of directors or any committee of Skate Canada may suspend or expel members. The Constitution also provided that there be procedures established for the CSE Policy which were to include, among other things, an “appropriate hearing”. The court found that the difficulty with the CSE procedures in place were that they did not specifically provide for a hearing at which witnesses could be cross-examined. The court agreed with Skate Canada that it was not appropriate nor necessary that cross-examination of witnesses take place during the investigatory stage. However, the court recognized the dilemma of the Patersons in that there was no other opportunity for the Patersons to test the evidence given by the complainants and other witnesses.

The court stated that where persons are accused of dishonesty and fraudulent misconduct, they must be able to test the credibility of their accusers. The court held that where the allegations were as serious as they were in the case at bar, the accused person, as a matter of due process, was entitled to cross-examine his or her accuser to test their evidence and challenge the credibility of the complainants and other witnesses. The procedures put in place by Skate Canada could not guarantee this opportunity to test the evidence and, therefore, the process did not meet the standard of fairness required.

In the result, the court granted a declaration that the Board of Directors of Skate Canada had breached its duty to be fair and had breached the rules of natural justice by enacting a CSE policy and procedures which did not comply with its constitutional requirement to provide for an appropriate hearing and appeal process which incorporated the principles of due process. The court further granted an order in the nature of the Prohibition, prohibiting the Chair of the Committee from proceeding directly with the charges against the Patersons without procedures in place that guaranteed fairness and, in particular, provided for a hearing that permitted the Patersons or their counsel to cross-examine the complainants.

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