Court of Appeal establishes law respecting joint submissions before Ontario Review Board

August 19, 2015 - Toronto - The Ontario Court of Appeal has established principles regarding the duties of fairness owed by an administrative tribunal when it is inclined to depart from a joint submission. The case before the court was an appeal from a decision of the Ontario Review Board, which is charged with overseeing the safe reintegration into the community of persons found not criminally responsible or unfit to stand trial in respect of Criminal Code offences.

The accused individual had been detained at the Centre for Addiction and Mental Health (CAMH) in Toronto since 2010. At his annual hearing in 2014, the parties before the Board (the accused, the Crown and CAMH) made a joint submission that there be no change in his disposition, which provided for unaccompanied passes on the grounds and into the community and permission to live in supervised accommodation in the community. Without notice to the parties that it was considering a more restrictive disposition, the Board withdrew permission for unaccompanied passes and to live in the community.

On appeal, the Court of Appeal considered squarely for the first time whether the Board must give an accused notice of its inclination to reject a joint submission and impose a more restrictive disposition. The panel of Justices John Laskin, Katherine van Rensburg and Mary Lou Benotto set aside the Review Board's decision and ordered a new hearing. While the Court recognized the Board's authority to depart from a joint submission, it ruled that the accused in this case had not had a fair hearing because the Board failed to alert the accused that it was considering rejecting the joint submission in a way that would restrict his liberty. In the situation, the Board had a duty to give him notice that it was considering imposing a more restrictive disposition, and to give the parties an opportunity to lead more evidence and make additional submissions. Although notice may be given in different ways (e.g., the chairperson may express the Board’s concerns, the Board may adjourn to permit the parties to obtain further evidence, the Board after beginning deliberations may request further submissions or evidence from the parties, or the Board’s concerns may be clearly evident from the questions posed by Board members), notice “must satisfy the objective of allowing the accused a meaningful opportunity to present the evidence and argument relevant to the board’s disposition.”

Kelley Bryan of Swadron Associates was counsel to the accused in the successful appeal. The Court of Appeal's decision is reported at Re Osawe (2015), 125 O.R. (3d) 428 (C.A.). To read the full text, please click here.