The BC Court of Appeal affirmed that an appellate tribunal can, where appropriate, cure breaches of natural justice or procedural fairness committed by an underlying tribunal

Administrative law – Decisions of administrative tribunals – Employment Standards Tribunal – Judicial review – Disclosure – Relevance of information disclosed – Appeals – Jurisdiction

Taiga Works Wilderness Equipment Ltd. v. British Columbia (Director of Employment Standards), [2010] B.C.J. No. 316, 2010 BCCA 97, British Columbia Court of Appeal, February 25, 2010, R.T.A. Low, D.F. Tysoe and D.M. Smith JJ.A.

Several employees filed complaints against their employer, the Appellant, on the basis of s. 63 of the Employment Standards Act, R.S.B.C. 1996, c. 113. A delegate of the Director of Employment Standards issued a declaration that there was a breach of the Act and the employees were entitled to monetary compensation.

Pursuant to the Act, the Appellant appealed the Director’s decision to the Employment Standards Tribunal. The Tribunal found that the Director’s delegate had breached the principles of natural justice by: (1) failing to disclose to the Appellant copies of documents provided to the delegate by employees in relation to their claims and (2) failing to consider the Appellant’s written submission before issuing a decision. Despite these breaches, the Tribunal did not refer the matter back to the Director. Rather, the Tribunal held that any breaches of natural justice had been cured on appeal, because the Tribunal had reviewed the documents and considered the written submissions and come to a similar conclusion.

The Appellant applied for the Tribunal to reconsider its decision. On reconsideration, a second Tribunal member held that procedural fairness could be ensured by referring the matter back to the first Tribunal member and providing the appellant an opportunity to make a complete submission with respect of the previously undisclosed documents. The first Tribunal member heard further submissions and reconfirmed her initial decision.

The Appellant further appealed to the Supreme Court, arguing that an appellate tribunal has no jurisdiction to deal with a breach of the rules of natural justice or procedural fairness and is limited to referring the matter back to the adjudicative body whose decision is under appeal. The Supreme Court dismissed the appeal.

The BC Court of Appeal affirmed the decision of the Supreme Court, holding that appellate tribunals can, in appropriate circumstances, cure breaches of natural justice or procedural fairness committed by an underlying tribunal. The Court of Appeal further held that the question of whether proceedings are rendered fair depends on, among other factors, the nature of the breaches of the principles of natural justice or procedural fairness and the powers of the appeal Tribunal. Here, the first Tribunal member did not have a fact finding function. It was thus impossible for her to know the extent to which the Director’s delegate relied on the undisclosed documents in making his determination. The Tribunal member thus could not have cured the breaches of natural justice by reviewing and considering the documents that the Director’s delegate had failed to disclose to the Appellant. Instead of curing the breaches, she decided that they could be overlooked. Given this, the second Tribunal member’s direction that the first Tribunal member could reconsider the issues was a further error. The Court of Appeal allowed the appeal and referred the matter back to the Director for a rehearing.

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