Procedural Fairness and the Inquiry into Anti-Alberta Energy Campaigns

  • dateJanuary 26th, 2021
  • userAllison Boutillier


26 Jan Procedural Fairness and the Inquiry into Anti-Alberta Energy Campaigns

Posted at 21:03h in Climate and Energy, Climate Change, Energy, Public Participation by
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 Procedural Fairness and the Inquiry into Anti-Alberta Energy Campaigns

 

We hear a lot these days about the rule of law and the government’s duty of due process, but what does it really mean? In Canada and, in Alberta, certainly, the government owes its citizens this duty of a fair procedure, which we refer to poetically in Canadian law as “procedural fairness”. At base, it is the government’s obligation to grant a person a fair hearing before the government does something that negatively affects that person’s interests. It is one of the promises of our democratic government and an important protection against the arbitrary exercise of government power.

In law, the duty of procedural fairness is often an extremely dry subject, because it meanders through the details of how to conduct bureaucratic hearings and shuffle through a lot of tedious paperwork. But, sometimes, an event challenges the boundaries of what constitutes a fair procedure, and the discussions of deadlines for submissions and evidentiary rules for a hearing become important landmarks for navigating the Canadian constitutional guarantee that citizens will be protected by the law from the arbitrary exercise of government power.

Today, we have a golden opportunity to look at the importance of procedural fairness in a government hearing, which is presented to us by the Alberta’ government’s inquiry into the role of foreign funding in anti-Alberta energy campaigns [the “Inquiry”]. It is no secret that the Inquiry’s procedure has been fraught with problems and there have been a number of accusations that the way the Inquiry is proceeding is unfair, both in and out of court. These are just a few examples.

In this blog, we will focus on a selection of the Inquiry’s procedural issues that have not been addressed otherwise in a lot of detail, specifically having to do with the way evidence is gathered and disclosed. To do this, we will start by taking a very brief look at some of the foundational rules for procedural fairness. Then, we will go through three potential problems with the Inquiry’s procedure, namely the preliminary investigation, the disclosure of evidence, and the procedure for allowing impugned parties to respond.

Procedural fairness in a nutshell

                The procedure of a hearing is all about how the hearing is carried out.. This can be anything from who gets to provide evidence and make arguments, to what sort of evidence and arguments they can provide and on what topics, to the deadlines for submitting evidence and arguments to the hearing. Procedural questions also include which party goes first and how much time they get to present their case, whether evidence is given by oral or written testimony, whether lawyers are involved, and whether the hearing gives a written or oral decision. Put otherwise, procedure is every detail of a hearing that deals with how the hearing is carried out, as opposed to what the hearing is about.

Carrying out a fair procedure, then, is all about how to set up a process for the hearing that is fair to the hearing’s participants. At its most basic level, there are two foundational requirements for achieving procedural fairness—and, you can tell they are important, because we still use their latin forms.

  1. Audi alteram partem (let the other side be heard): This is the right to make your own case in front of the hearing. Generally, this means that a party whose interests may be affected by a hearing has the right to know the evidence against them and to make a case in response.
  2. Nemo judex in sua causa (no one can be a judge in his or her own cause): This is the right to have a fair and impartial decision-maker in the hearing, which means more or less that whoever is holding the hearing cannot have made up his or her mind before the hearing.

In the nitty gritty details, different hearings require different levels of procedure to meet these two requirements. If you think about it, not every decision made by a government panel or commission requires a three-month hearing with lawyers and experts. Some decisions, like whether or not to grant a permit for a major natural resource development project, are complicated and technical and do indeed require a high level of scrutiny and procedure. However, some decisions, like whether or not to grant a drivers’ licence, would become absurd if they followed the same degree of procedure.

In Canada, to decide how many procedural protections a hearing deserves, we  consider five “fairness” factors, which are called the Baker factors after the Supreme Court of Canada decision of the same name.[1] These five factors are: the nature of the decision-making process, the legislation behind the hearing, the importance of the decision to the individuals affected, the legitimate expectations of the individuals affected, and the choices made by the decision-maker.[2] We can take  brief look at each in turn.

  1. The nature of the decision-making process

This factor asks if the hearing looks more like a bureaucrat stamping a piece of paper or a full court hearing. It should come as no surprise that more formal and robust hearings require more procedural protections to be fair and vice versa.

In this case, the Inquiry has been running since July 2019 and has a budget of $3.5 million. It is not being conducted as a full tribunal hearing, but at the same time it is a significantly more robust procedure than a routine, bureaucratic decision.

  1. The legislation behind the hearing

This factor looks at the legislation that enables a hearing to see what sort of procedure is appropriate, given both the powers and the restrictions the legislation grants the hearing. One specific thing that will be considered is if there is a right to an appeal or other way to challenge the decision that results from the hearing. If there is not, then there should be more rigorous procedural protections in place.

In this case, the Inquiry has been established under the Public Inquiries Act.[3] That Act gives the Inquiry some relatively rigorous procedural powers, including the power to compel witnesses as if it were a court.[4] As well, the Act guarantees that any person appearing before the Inquiry has the right to counsel and, any party whose interests may be affected by the Inquiry has the right to call evidence before the Inquiry.[5] Notably, there is no right of appeal from the final report issued by the Inquiry.

  1. The importance of the decision to the individuals affected

Under this factor, the more serious the impact of the hearing on the affected individuals, the more procedure that is required for the hearing to be fair.

In this case, the Inquiry does not have the power to make findings of either criminal or civil liability, in the same way that a court would. However, the Inquiry does have the power to make findings of fact, which means roughly that it will come to factual conclusions about the subject matter it is investigating. In doing so, the Inquiry may make allegations of misconduct against interested parties, giving it the ability to affect the reputations of the individuals involved. The Supreme Court has held that this is a significant interest, because a person’s reputation is generally very important.[6]

Additionally, under the Terms of Reference[7] of the Inquiry, the Commissioner is required to make recommendations to the Government of Alberta about eligibility criteria for government grants, as well as eligibility criteria for having charitable status.[8] This means that the Inquiry’s findings could also affect the financial interests of the affected parties insofar as they receive government grants or have charitable status.[9]

  1. The legitimate expectations of the individuals affected

This factor reflects the fact that if the hearing has created expectations that it will follow a certain procedure, then it is only fair to either follow that procedure or to put in place a procedure that compensates for the disappointed expectations.

In this case, it is hard to say if the affected parties have any legitimate expectations about the Inquiry, except perhaps that it will follow its Rules for Procedure.[10]

  1. The choices made by the decision-maker

This factor reflects the fact that the person or persons carrying out a hearing are entitled to make decisions about how the hearing will proceed and, accordingly, affords those decisions a degree of deference.

In this case, this means that we should accord a certain amount of respect for the procedure set out in the Inquiry’s Rules for Procedure.

Taken as a whole, the Baker factors do not give a mathematical result for how much procedural protection a hearing owes to its participants. Instead, the factors lay out the considerations that should be kept in mind when assessing the procedure the Inquiry has followed, especially insofar as they inform the ultimate question in front of us: is the procedure fair?

To that end, the next three sections will address three specific aspects of the Inquiry’s procedure and the potential issues they raise for the fairness of the Inquiry, specifically looking at the pre-inquiry information gathering, the disclosure of evidence, and the procedure for the parties’ right to respond.

The preliminary investigation

The Inquiry’s Rules for Procedure and Practice [the “Rules”] indicate that the Commissioner of the Inquiry undertook a preliminary investigation, which included “informal interviews, submissions from the public through the Commission website, research and Commissioned Reports”.[11] According to the Rules, none of the interviews given or documents reviewed in this preliminary investigation will be made public, unless the Commissioner decides otherwise. The Rules do not give any explanation of how the Commissioner will make this decision or, put otherwise, on what basis he would decide to make the documents public or not. So far, the Commissioner has released a package of materials that includes several commissioned reports and some miscellaneous books and articles.[12] There is no indication of why these materials were made public and others were not, and there is no indication of what other information the Commissioner obtained through the preliminary investigation.

This type of preliminary investigation has the potential to create problems from a procedural fairness perspective, given the potential to offend both of the big latin principles that underlie procedural fairness: the right to know the case against you and the right to have an impartial decider.

Simply put, if the Commissioner is relying on information that is not part of the public record, then parties whose interests are affected by the Inquiry will not know the full case against them. Imagine that the Commissioner has interviewed a witness who has provided financial information about an environmental group who may be affected by the inquiry. Shouldn’t that environmental group have the right to review that financial information?

Moreover, looking at the problem from a slightly different perspective, if the Commissioner is making decisions based on information that is not part of the public record, then the Commissioner may not be coming to the formal part of the hearing with an impartial mind.[13] Instead, he may have been influenced  by the information that was gathered in the preliminary investigation, which may bias his views of the information that does form part of the public record. Perhaps, to continue the earlier example, the Commissioner will doubt any financial information provided by the environmental group on the basis of the financial information obtained in the preliminary investigation. This would not be an impartial decision-making process.[14]

Disclosure of evidence

Under the Rules of the Inquiry, the Commissioner has the discretion to decide which submissions to the Inquiry form part of the public record.[15] This means that the Commissioner has the right to choose not to make public any of the evidence that is submitted to the Commissioner, even outside of the preliminary investigative stage of the Inquiry.

This set-up has the potential to create procedural fairness problems, similar to those raised by the preliminary investigation. Namely, since the Commissioner is presumably reviewing all of the information received by the Inquiry, even if only to decide if it will form part of the public record or not, then he could be influenced by information that is kept off of the public record. If this happens, then it is possible that interested parties are not being given the chance to know the entire case against them. Likewise, if the Commissioner considers information that does not form part of the public record, then he may notbe approaching the public part of the Inquiry with an open mind. Both of these issues pose potential problems for the procedural fairness of the inquiry.

Practically, these potential fairness problems are exacerbated, because the Commissioner’s decision to make information public or not is not itself public. This means that it is impossible to know if the Commissioner has decided to keep a document off of the public record, unless perhaps you are the person who submitted the document and you see that it does not make it onto the public record. Equally, it is impossible to know why the document has been kept off of the public record, since the Commissioner is not making these decisions public.

This secrecy around the public record is really problematic, because it severely limits the ability of parties affected by the Inquiry to challenge the Commissioner’s decisions about what goes onto the public record and what does not. Quite simply, if you do not know that a decision has been made, then how could you possibly challenge it? This goes to the right of the parties to know the case against them and to meet it, because it fundamentally limits the ability of those parties to fully participate in the hearing. Moreover, if the decision of what goes on the public record and what does not is made in secret, then there is no guarantee the Commissioner is making decisions in a way that is fair to the parties affected by the Inquiry: a secret process is probably not a fair process.

To understand the significance of this issue, consider the fact that, to date, almost nothing that the Commissioner has considered has been made public. The order establishing the Inquiry was made in July 2019, and we still know almost nothing about the evidence the Inquiry has obtained or who has provided that evidence. It cannot be understated how unusual this is, especially for a hearing of the size and breadth of the Inquiry. To put things into context, imagine if the Alberta Energy Regulator or the National Energy Board made decisions about permits for natural resource development without disclosing all of the evidence they had received or who submitted that evidence. Would that really be a fair process?

The right to respond

Under the Rules of the Inquiry, before the Commissioner makes final determinations about the subject matter of the Inquiry, he will identify any parties that may be subject to a finding of misconduct or a material adverse finding, meaning, more or less, any significant negative conclusion about the party.[16] The Commissioner will send these parties a written notice with the possible negative findings, and “the evidence the Commissioner intends to rely on to support such findings”.[17] The party then has the right to respond by bringing its own evidence and making its own legal arguments.[18] This procedure is intended to honour the right of affected parties to know the case against them and to make their own case in response.[19]

On its face, this procedure appears to follow the requirements of procedural fairness. However, there is still the potential for a serious fairness problem given the limited evidence the Commissioner is required to send the parties. Specifically, the Rules only require the Commissioner to send potentially affected parties the evidence he intends to rely on to make negative findings against them. This opens up the possibility that the Commissioner will not send the parties all of the information that is relevant to the potential findings and, instead, will only send the information that supports the case against them. To understand the problem with this, imagine for instance that the Commission has heard from two different experts who have given opposite evidence on an issue. Will the parties only be told about the evidence of the expert who supported the finding against them and not the expert who opposed it?

Truth be told, this probably would not be a problem for procedural fairness if there was a public record of the evidence the Commissioner has heard and considered to date.[20] In that case, the parties would be able to assess the evidence the Commissioner intends to rely on against the other evidence that has been heard by the Inquiry in order to make out a case in response. However, given the almost complete lack of public record to date, the parties that receive notice of potential negative findings would have no way of assessing the evidence they are given against any of the other evidence. This could significantly limit their ability to respond to the case against them, by potentially withholding information that would be useful to these parties.

It must be noted that there is also a second, more subtle problem that is raised by the wording of the Rules on this point. Note that, according to the Rules, the Commissioner will send the parties “the evidence the Commissioner intends to rely on to support such findings”.[21] This heavily implies that the Commissioner has already made an assessment of the evidence that is before the Inquiry and drawn conclusions from it. In other words, at the time the notices will be sent out, he has already formed an intention to make certain findings, based on certain evidence. He has reviewed the available evidence and assessed it in order to draw conclusions. This is potentially very problematic, because it means that he will not necessarily be approaching the evidence the affected parties call in response with an open mind, which could call into question the impartiality of the decision-maker.[22]

Concluding remarks

Having reviewed some potential issues with the Inquiry’s procedure, it should be acknowledged that it is entirely possible the Inquiry is not doing anything problematic behind the scenes. Perhaps the information the Commissioner has reviewed that is not a part of the public record does not contain anything materially different from the information that has been made public. Perhaps the Commissioner has not been influenced by any of the information that does not form part of the public record and has indeed come to the Inquiry with an open mind.

Nevertheless, the problem remains, because for a procedure to be fair, justice must be done and justice must be seen to be done. This means that the rules of procedural fairness require a hearing to both be fair and to appear to be fair, because one of the requirements of fairness is that the parties feel like they are getting a fair shake. Accordingly, even the best procedure in the world could be compromised if the parties do not know that they have been treated fairly. So, even if the Commissioner is not doing anything problematic behind the scenes, the secretive nature of the Inquiry could give the appearance that the procedure is unfair, which is itself problematic.

At the same time, however, there is a very simple fix to the potential procedural issues we have raised in this blog: make the evidence that the Inquiry has gathered public, subject only to the normal evidentiary exceptions allowed by the law and the Public Inquiries Act, such as the privilege to have confidential discussions with your lawyer.[23] Moreover, if the Commissioner has made decisions to omit some evidence, for example, because it is irrelevant to the subject matter of the Inquiry, then the fact that such a decision has been made should also be made public and the omitted records available for review if some parties want to contest the decision.

Ultimately, making the entire evidentiary record public would resolve most of the problems with the Inquiry’s procedure that we have identified in this blog. It would remove the concern that there may be evidence influencing the Commissioner’s findings that are not available to affected parties. Likewise, if the parties who may be subject to negative findings are given all of the relevant information, there will be less worry that the Commissioner has pre-emptively evaluated the evidence and drawn conclusions about it.

Of course, it should be noted that there could be a few latent problems, even if the Commissioner makes the evidence gathered by the Commission public. For instance, if the Commissioner has obtained information without keeping records, such as through the informal interviews carried out in the preliminary investigation, then obviously that information cannot be made public because there is no record of it. However, even in that case, it may still be possible to cure the potential for unknown information to influence the Commissioner’s decisions. For instance, it would not be outside of standard practice for the Inquiry to consult with the affected parties to figure out what kind of procedure could correct the problem, such as calling the interviewees as witnesses to be questioned and cross-examined in a public forum.

Either way, at the end of the day, a public inquiry is supposed to be just that: public. In this instance, the secretive nature of the Inquiry is highly unusual and, as we have reviewed, creates the potential for significant problems with regards to the fairness of the procedure. On this basis, the Inquiry would be well served to consider the information it makes public and the information it keeps secret in the short amount of time that it has left in its mandate. Otherwise, a reviewing court could decide that the procedure was unfair, which, in law, would be enough to allow the Court to quash the report—meaning that the entire Inquiry, the months of operations, and the millions of dollars, would be thrown out and the Government of Alberta would have to either give up on its Inquiry or start all over from the beginning.

[1] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

[2] Ibid at 838-840.

[3] Public Inquiries Act, RSA 2000, c P-39.

[4] Ibid, ss 4-5.

[5] Ibid, ss 12-13.

[6] See Canada (AG) v Canada (Commission of Inquiry on the Blood System), [1997] 3 SCR 440 at 471.

[7] Terms of Reference (January 2021), online: Alberta Inquiry https://albertainquiry.ca/sites/default/files/2021-01/Terms%20of%20Reference%20-%200811b.pdf.

[8] Ibid, s 2(3).

[9] Note that it is probably outside of the jurisdiction of the Alberta government to affect charitable status, which is normally an area of federal jurisdiction.

[10] Rules for Procedure and Practice (14 September 2020), online: Alberta Inquiry https://albertainquiry.ca/sites/default/files/2020-09/Rules-for-Procedure-and-Practice-091420.pdf [Rules].

[11] Ibid at para 9.

[12] “Engagement Process” (13 January 2021), online: Alberta Inquiry https://www.albertainquiry.ca/engagement-process.

[13] The strict legal test for bias is: would a reasonable person, informed of the relevant circumstances, think the decision-maker is not impartial? See Committee for Justice and Liberty et al v National Energy Board et al, [1978] 1 SCR 369.

[14] C.f. Brosseau v Alberta Securities Commission, [1989] 1 SCR 301.

[15] Rules at para 10.

[16] Rules at para 20.

[17] Ibid.

[18] Ibid at para 22-23.

[19] See Public Inquiries Act, ss 12-13.

[20] See e.g. Canada (AG) v Canada (Commission of Inquiry on the Blood System).

[21] Rules at para 20.

[22] Note that this language was used in Canada (AG) v Canada (Commission of Inquiry on the Blood System), but in that case the Court did not find it problematic. Likely, this is because the issue of impartiality was not at play in that case. Moreover, in that case, the parties had already had the opportunity to review all of the evidence heard by the Inquiry, to cross-examine witnesses, and to call their own evidence, so many of the requirements of procedural fairness had already been met.

[23] See Public Inquiries Act, s 9.

 

 

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