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NATURAL JUSTICE - Duty of fairness - Procedural fairness - Hearings - Practice and procedure

Thursday, October 26, 2017 @ 8:32 AM  

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Appeal by the Crown from a judicial review judgment in favour of the respondent, Royal Canadian Mounted Police (RCMP) Constable McBain. The respondent was a police constable subjected to a disciplinary proceeding due to an allegation of sexual intercourse during professional interactions with a citizen. The allegations further addressed whether the intercourse was consensual and the respondent's unforthcoming conduct post-incident. The RCMP Adjudication Board (Board) found that the respondent conducted himself in a disgraceful manner and ordered his resignation within 14 days, failing which he would be dismissed. On an administrative appeal, the Commissioner determined the Board breached the respondent's right to procedural fairness in a serious manner. The findings and sanction were nonetheless affirmed on the basis the outcome was legally inevitable. On judicial review, the Federal Court held that the breach of procedural fairness justified remitting the matter back to a differently constituted Board for redetermination. The Crown appealed.

HELD: Appeal dismissed. The Commissioner's conclusion that the outcome was legally inevitable was rejected. The Board had departed from a joint submission on sanction, and relied heavily on inadmissible evidence in reaching its decision. It was far from certain that the Board would have reached the same result had the procedural fairness breaches not occurred. The proceedings before the Commissioner did not cure the procedural fairness breaches. The errors at first instance were serious, and likely permeated the proceedings before the Commissioner when he considered inadmissible evidence. The Commissioner's refusal to order a new hearing was an error in law. The Federal Court decision to the same effect was based upon the proper standard of review, applied correctly.

McBain v. Canada (Attorney General), [2017] F.C.J. No. 924, Federal Court of Appeal, W.W. Webb, R. Boivin and D.J. Rennie JJ.A., October 4, 2017. Digest No. TLD-October232017007