sept. 23. 2020

This is What Procedural Fairness for a Self-Represented Party Looks Like

Challans v Timms-Fryer, 2017 ONSC 1300 (CanLII)

In Challans v Timms-Fryer, 2017 ONSC 1300, the complainant was a party to the discipline hearing of a police officer. There already was a regulatory prosecutor and defence counsel for the officer. As such, the tribunal did not actively involve the complainant in the hearing. At the hearing the officer was found not guilty of the allegations. The Divisional Court found that the tribunal had failed to offer the complainant a fair hearing:

A minimum level of assistance, to ensure meaningful participation by the unrepresented public complainant, would have required the Hearing Officer to do the following, on the record:

  • Confirm whether the public complainant was aware that he was entitled to be represented by legal counsel at the proceedings and whether he was waiving the right to legal representation.
  • Explain the roles of the parties at the proceeding and the process that would be followed. This would include the right of each party, including the public complainant, to call witnesses, introduce evidence, object to evidence adduced, cross-examine witnesses, and make submissions on all motions and at the end of the hearing.
  • Explain the role of the adjudicator in the proceedings, including his role in relation to the unrepresented public complainant.
  • Confirm that the public complainant understands the process and his role in it.
  • Ask the public complainant, at the appropriate time, if he would like to call any witnesses.
  • Ask the public complainant, at the appropriate time, if he would like to question each of the witnesses of the prosecution and the defence.
  • Ask the public complainant if he would like to make submissions on all motions and at the end of the hearing.

There was no obligation on the complainant to prove that this unfairness would have altered the outcome of the hearing. The Court also did not support the filing of affidavit evidence on what the complainant had been told off the record. The Court said:

There is a reason why hearings, such as the one here, are conducted “on the record”. It is to avoid disputes, later on, regarding what occurred before the tribunal or court, including when the proceeding is the subject of an appeal. It is to avoid the spectacle of warring affidavits being filed, as to what occurred outside of the formal proceedings, of the type that both Mr. Timms-Fryer, and the Amherstburg Police Service, attempted to file in this case. If any of the discussions occurred involving Mr. Timms-Fryer, as are alleged in these affidavits, then the contents of those discussions ought to have been repeated by counsel on the record, so that everyone had the opportunity to confirm, or refute, the contents of those discussions. None of that occurred in this case.