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ARTICLE · 28 JUNE 2021

Tribunal's Independent Legal Research Not Procedurally Unfair

Gardiner Roberts LLP
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When a judge or an adjudicator renders a decision that is not anchored in the pleadings, evidence, positions or submissions of the parties, appellate courts have overturned the underlying decision on the grounds that an error of law has been committed.

CanadaLitigation, Mediation & Arbitration
Stephen Thiele
Stephen Thiele
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When a judge or an adjudicator renders a decision that is not anchored in the pleadings, evidence, positions or submissions of the parties, appellate courts have overturned the underlying decision on the grounds that an error of law has been committed: Labatt Brewing Co. v. NHL Enterprises Canada L.P., 2011 ONCA 511; Moore v. Sweet, 2017 ONCA 182, leave to appeal S.C.C. allowed with judgment reversed 2018 SCC 52 (CanLII); and Rodaro v. Royal Bank of Canada, 2002 CanLII 41834 (ON CA). The error of law is that the losing party has been denied natural justice or procedural fairness.

However as seen in the recent Alberta case of Sysco Canada, Inc. v. Miscellaneous Employees, 2021 ABQB 459 (CanLII), an administrative tribunal can rely on cases that neither party expressly raised in argument to support a decision, without breaching procedural fairness.

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