Court File and Parties
Citation: Damien Harry v. Registrar General of Ontario, 2014 ONSC 68 Divisional Court File No.: 473/13 Date: 2014-02-04 Superior Court of Justice – Ontario Divisional Court
Re: Damien Harry, Applicant - v. - Registrar General of Ontario, Respondent
Before: A.C.J. Marrocco, Wilton-Siegel and Nolan JJ.
Counsel: Alexander Procope and Karen Steward, for the Applicant Amy Leamer, for the Respondent
Heard: December 18, 2013
Endorsement
THE COURT
[1] The applicant seeks judicial review of a decision of the Registrar General of Ontario (the “Registrar”) dated September 18, 2012, cancelling the birth registration of “Damien Harry” under section 52 of the Vital Statistics Act, R.S.O. 1990, c. V.4 (the “Act”) (the “Decision”). The applicant also alleges that the Registrar’s decision dated August 15, 2012, that provided that the hearing on this motion would be in writing rather than by teleconference, constituted a denial of the principles of natural justice (the “Procedural Decision”).
Background
[2] The applicant obtained a birth registration under the Act in 1998 through a Delayed Statement of Birth Application under the name “Damien Harry”. The application contained a declaration that Damien Harry was born on October 9, 1973, at the Wellesley Hospital in Toronto. It contained signatures of the purported parents of “Damien Harry”, and included a letter from the Wellesley Hospital noting that a woman named Harry (née DaSilva) gave birth to a baby boy on October 9, 1973. The applicant says that he and a twin brother named Roger Norris Harry were born on that day in Toronto to George Harry and Helen (Da Silva) Harry.
[3] The applicant was convicted on May 16, 2003, of the offence of obstruction of justice. The court found that the applicant identified himself to a police office as “Damien Harry” and had previously applied for a birth registration under that name, but was in fact Rogers Norris Harry, who was born on October 22, 1973 in St. Vincent and the Grenadines (“St. Vincent”).
[4] The applicant acknowledges that he was convicted in the criminal proceeding and that the conviction was not appealed. It appears to be undisputed that another individual named Roger Norris Harry was born on October 22, 1973 in St. Vincent to a Mavis Jones. The applicant says that Mavis Jones gave the child this name to attempt to conceal the birth from her family. The applicant says that the child was so named with the consent of Helen Harry, although such consent is apparently denied by George Harry (Helen Harry died in 2007).
[5] The decision of Pardu J. (as she then was) in the criminal proceeding is set out in R. v. Harry, 2003 10815 (ON SC). Among other things, Pardu J. found that the applicant was Roger Norris Harry born on October 22, 1973 in St. Vincent.
[6] Based on the criminal conviction, the Registrar cancelled the birth registration of Damien Harry pursuant to section 52(1) of the Act on January 30, 2006.
[7] By email dated February 20, 2012, the applicant requested reinstatement of the birth registration of “Damien Harry”. The applicant was advised that a reconsideration hearing would be conducted in view of the Registrar’s failure to give him an opportunity to be heard pursuant to section 52(4) of the Act prior to the cancellation of the registration in 2006.
[8] The applicant was provided with a Notice of Written Hearing on June 21, 2012, and a revised Notice of Written Hearing dated July 27, 2012 (collectively, the “Notices”). The applicant was provided with all of the material that the Registrar had and on which the Registrar might rely in coming to a decision. The applicant also submitted additional documentation in support of his position.
[9] In the Notices, the applicant was also advised that, if he satisfied the Registrar that there was good reason for not holding a written hearing, an in-person or electronic hearing would be held. The applicant requested an electronic hearing by way of teleconference by letter dated August 6, 2012. The Registrar’s delegate (hereinafter the “Delegate”) denied the request for an electronic hearing pursuant to the Procedural Decision.
[10] The written hearing proceeded on August 29, 2012. The Delegate ordered that the birth registration of “Damien Harry” under the Act be canceled pursuant to the Decision.
Standard of Review
[11] The applicant raises two issues:
that the delegation of the Registrar’s authority under the Act to a member of the Ministry of the Attorney-General of Ontario gave rise to a reasonable apprehension of bias; and
that the denial of the applicant’s request for an electronic hearing by way of a teleconference constituted a denial of natural justice.
[12] As these issues involve allegations of a denial of natural justice, the court must assess whether the rules of procedural fairness have been adhered to after a determination of the procedures required in the particular circumstances of the case. The content of the duty of fairness varies according to five factors articulated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28, that are described below (the “Baker Factors”).
[13] It should be noted that the applicant does not challenge the reasonableness of the Decision or the Procedural Decision. Instead, the applicant instead seeks a new hearing conducted by teleconference by another delegate of the Deputy Registrar.
The Issues Raised by the Applicant
[14] We will address each of the issues raised by the applicant in turn. As a preliminary matter, the Registrar seeks dismissal of this application on the grounds of delay in the commencement of the application. Given the conclusions reached below on the principal issues raised on this application, it is unnecessary to address this issue and accordingly we decline to do so.
Reasonable Apprehension of Bias
[15] As mentioned, the applicant says that delegation of the function of the Registrar to a lawyer employed by the Ministry of the Attorney General of Ontario (the “Ministry”) raises a reasonable apprehension of bias inasmuch as a Crown Attorney, who was also employed by the Ministry, prosecuted the applicant in R v. Harry. To be clear, however, the Delegate was not the lawyer who prosecuted the applicant in R. v. Harry.
[16] In this case, the Registrar delegated his authority to the Deputy Registrar General who, in turn, delegated his authority under section 52(1) of the Act to the Delegate. The Delegate was a lawyer employed with the Ministry of the Attorney General, at the Legal Services Branch of the Ministry of Consumer Services.
[17] There is no suggestion, or evidence, of any actual conflict of interest or bias. In particular, there is no suggestion that the Delegate had any involvement in the criminal prosecution in 2003 or any contact with the Crown Attorney who prosecuted the case. There is also no suggestion of any personal or other interest in this matter. Of note, the Delegate has never had any association with the Crown Law Office – Criminal of the Ministry of the Attorney General.
[18] The applicant submits, however, that there is a reasonable apprehension of bias. He says it was against the Delegate’s interest to accept the applicant’s position as it would be contrary to the theory proposed by the Crown in the criminal proceeding. He says to have done so would have been contrary to the duty of loyalty that the Delegate owes to her employer.
[19] The inquiry into a reasonable apprehension of bias is fact-specific: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 77. The test is whether a reasonably well-informed person would consider that the interest in question might have an influence on the exercise of the official’s public duty: see Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 31 (SCC), [1990] 3 S.C.R. 1170, at p. 1198.
[20] We do not agree that the delegation of the Registrar’s decision-making power to a lawyer employed by the Ministry who is providing services to the Ministry of Consumer Services, which is the responsible ministry under the Act, gives rise to a reasonable apprehension of bias for the following reasons.
[21] The role of the Attorney General, including counsel acting on his behalf, involves the provision of legal advice and services to government ministries, in addition to the exercise of prosecutorial discretion that is exercised independently of these ministries. The function and operation of the Crown Law Office – Criminal of the Ministry of the Attorney General is separate and distinct from that part of the Ministry which provides legal services to government ministries. Lawyers for the Crown Law Office – Criminal are subject to the provisions of the Crown Attorneys Act, R.S.O. 1990, c. C.49.
[22] The reasonably well-informed person would be deemed to know of this unique role, which has been described in the following statement of Rand J. in R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, at p. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[23] The applicant relies on the decision of the British Columbia Court of Appeal in Golden Valley Golf Course Ltd. v. British Columbia (Minister of Transportation & Highways), 2001 BCCA 392, 200 D.L.R. (4th) 248. However, in that decision, the court expressly relied on the fact that the Board member in question was being considered for employment by the government during the currency of the hearing, and therefore might be seen to be motivated to reach a decision favourable to the government.
[24] Of greater relevance is the decision of the Supreme Court in Ghirardosi v. British Columbia (Minister of Highways), 1966 47 (SCC), [1966] S.C.R. 367, in which the court apparently considered an umpire on an arbitration panel of three persons to be qualified notwithstanding having acted occasionally as Crown counsel for the province in criminal prosecutions.
[25] More generally, as in Eckervogt v. British Columbia (Minister of Employment & Investment, 2004 BCCA 398, there is no question of Crown liability or obligation in the present circumstances. Nor does the Crown have any other economic interest in the present application.
[26] This ground of the application for judicial review is therefore dismissed.
Denial of Electronic Hearing by Teleconference
[27] The applicant says he was denied procedural fairness by the Procedural Decision, which denied his request for a hearing by teleconference.
[28] The content of the duty of fairness varies according to the following five Baker Factors set out in Baker: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme, including enhanced procedural protections when no appeal procedure is provided; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body regarding its choice of procedure.
[29] The applicant argues that because the hearing was adjudicative, there is no statutory right of appeal, and the registration of a birth is critically important to an individual, a high level of procedural protection is owed. We agree. However, we see no reason why the high level of procedural protection is not satisfied by a written hearing in which the Registrar has made available all of the material upon which the Registrar intends to rely, has indicated the importance of original documents where available, has received all additional evidence in the hands of the applicant, and has invited written submissions addressing, among other things, the significance of the additional evidence. In particular, we note that the applicant did not propose to introduce viva voce evidence of any third party, including his alleged father or the police officer who conducted the investigations in St. Vincent referred to in a number of the additional documents produced by the applicant.
[30] We are satisfied that, in the present circumstances, procedural fairness was satisfied by a written hearing for the following reasons.
[31] First, the applicant is unable to demonstrate how he was prejudiced in the absence of a hearing by teleconference. This is consistent with the fact that the issue, by its nature, was determined by the documentary evidence before the Delegate, as the applicant did not propose to provide any oral testimony of third parties who could address the validity and probative value of the additional evidence submitted by the applicant. As mentioned, the applicant was provided with all of the information available to the Registrar, was able to make full written submissions, and had his questions answered.
[32] In this regard, the applicant has raised three specific concerns of the Delegate regarding this evidence. However, as set out below, he has failed to demonstrate any prejudice to him resulting from the Delegate’s findings as a result of the conduct of a written, rather than an electronic, hearing.
[33] In paragraph 25 of the Decision, the Delegate stated that she did not accept the truth of the contents of the documents produced by the applicant. This is a finding regarding the probative value of this evidence in the absence of any basis for verifying the statements made therein. It is only indirectly a finding of the applicant’s credibility. The applicant has not demonstrated to the Court that he has a basis for establishing the credibility of these documents that he would have provided to the Delegate if he had been given an oral hearing. Similarly, the applicant objects to the observation in paragraph 26 of the Decision. The Delegate observed that there was a difference in the two versions of the school certificate submitted by the applicant regarding the place of birth of Roger Norris Harry. On this basis, the Delegate was entitled to doubt the probative value of the document. The applicant has also offered no explanation of this discrepancy.
[34] In paragraph 18, the Delegate observed that certain evidence given at a hearing before the Immigration Review Board was inconsistent with the evidence in the hearing before the Delegate. We accept that this could be relevant to the applicant’s credibility, although the Delegate did not make an explicit finding that the applicant had lied. However, the applicant has provided no explanation for this discrepancy. More significantly, the issue was not central to the issue in the hearing before the Delegate, which was whether the applicant was Damien Harry.
[35] Second, the applicant’s principal argument appears to be that a written hearing does not satisfy the rules of procedural fairness if the matter turns on credibility. We accept that this principle is applicable in circumstances in which the state of mind or intention of a party is the critical issue: see, for example, Labelle v. Ontario Provincial Police Force Commissioner (1997), [1999] 11 Admin. L.R. (3d) 162 (Ont. Div. Ct.), where the issue was the state of mind of the defendant and therefore could only be determined after the trier of fact had received viva voce evidence from the defendant. Similarly, the principle is applicable in circumstances where the actions of a party are the central issue: see, for example, Khan v. University of Ottawa (1997), 1997 941 (ON CA), 34 O.R. (3d) 535 (C.A.).
[36] However, this is not an absolute principle and, in our view, it is not applicable in the present circumstances. The issue in this case is the factual issue of the applicant’s identity, not the applicant’s state of mind. The decision turns on the documentary evidence before the Delegate, including the additional factual evidence provided by the applicant. It does not involve the applicant’s state of mind or any actions of the applicant. It is an issue of credibility only in the sense that that the decision will either confirm or deny the applicant’s assertion of the facts.
[37] Third, as a related matter, the central evidentiary issue in this matter was not the credibility of the applicant but the probative value of the additional evidence that he produced, given the applicant’s onus of impeaching Pardu J.’s findings. Accordingly, any issue of credibility pertained to the credibility of the third parties upon whose evidence the applicant sought to rely by asserting the probative value of such evidence. This could not have been addressed in a teleconference hearing involving only the applicant.
[38] In these circumstances, we are satisfied that the Registrar accorded the applicant procedural fairness notwithstanding the denial of his request for a hearing by teleconference.
[39] The applicant’s real objection to the written hearing is that he believes that he should have been given an opportunity in a teleconference hearing to respond to the Delegate’s Decision, and the specific findings upon which the Decision was based, before they were made. At the same time, however, he does not suggest that the Decision was unreasonable. We do not think this is a tenable argument of the denial of natural justice for the following reason.
[40] This argument raises a more general consideration that has been touched upon already – the inadequacy of the applicant’s evidence. The fundamental issue before the Delegate was whether the applicant’s evidence demonstrated that he was Damien Harry. This entails a re-litigation of Pardu J.’s finding that he was not Damien Harry, which is implicit in her finding that he was Roger Norris Harry, born on October 22, 1973 in St. Vincent. The principles governing the operation of the doctrine of abuse of process in such circumstances have been addressed by the Supreme Court in Toronto (City) v. Canadian Union of Public Employees Local (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. The court stated the following, at paras. 52-53:
[P]roper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.
The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).
[41] There is no question that the Registrar was entitled to rely on the findings of Pardu J. in R. v. Harry as proof that the applicant had been convicted of a crime, and prima facie proof of the material facts upon which the conviction is based: see C.U.P.E. at paras. 17-20. There is no basis in the present circumstances for the applicant’s suggestion that the issue of the applicant’s identity in the criminal proceeding was “too minor to generate a full and robust response” or that he had an “inadequate incentive to defend”.
[42] Therefore, in the hearing before the Delegate, in accordance with the doctrines of abuse of process and res judicata, the applicant had to introduce fresh, new evidence, previously unavailable, that conclusively impeached the implicit finding of Pardu J. that he was not Damien Harry. The evidence that the applicant tendered did not satisfy this standard, either individually or collectively.
[43] Six of the nine documents referred to in paragraph 76 of the applicant’s factum, that he says constituted evidence that countered Pardu J.’s finding that he was the Roger Norris Harry, born on October 22, 1973 in St. Vincent, are unsubstantiated findings of a third party, the Consulate General of St. Vincent, in reliance on an unnamed police officer of St. Vincent, and an alleged interview with George Harry. There is a serious issue with the reliability of this evidence in the absence of any opportunity to receive direct evidence from these parties, which, as mentioned, the applicant did not say he intended to introduce in requesting an electronic hearing. The remaining evidence is either irrelevant, in the case of the Ontario driver’s licence abstract and the name change application of “Roger Jones”, or of little probative value, as in the case of the hearsay statement that an RCMP officer interviewed an individual purporting to be the twin brother while the applicant was apparently in detention elsewhere.
[44] Accordingly, the applicant’s new evidence does not establish that the applicant is Damien Harry on a balance of probabilities standard, much less on the “conclusively impeached” standard. Moreover, even if it were found on the basis of this evidence that the applicant is not the Roger Norris Harry who was born in St. Vincent, which has not been established on a “conclusively impeached” standard, such a finding would not establish that the applicant was Damien Harry and therefore would not displace the implicit finding of Pardu J. that he was not Damien Harry. On the basis of the evidence in the record, the applicant could also be the Roger Norris Harry who was born in Canada, and who has allegedly disappeared, or another individual altogether who has taken the identity of Damien Harry.
[45] The applicant has therefore failed to demonstrate how an opportunity to be heard orally on this issue would have assisted his case by addressing this fundamental problem such that the denial of such opportunity constituted a denial of natural justice. The applicant is unable to identify any specific issues that the Delegate addressed of which he had no prior knowledge and for which he had explanations that would have answered the Delegate’s concerns if a teleconference had been held.
[46] The applicant was aware of the issues before the Registrar and had an obligation to put forward his best evidence. In these circumstances, if he considers that he was prejudiced because the Registrar addressed issues of which he was not aware that were material to the Registrar’s Decision, he has an obligation to demonstrate such prejudice to the Court. He has failed to do so.
[47] In these circumstances, we see no prejudice to the applicant that resulted from the Delegate’s decision to conduct the hearing under section 52(1) of the Act by written submissions.
[48] Accordingly, this ground of the application for judicial review is also dismissed.
Conclusion
[49] Based on the foregoing, the application for judicial review is dismissed in its entirety.
Costs
[50] Costs in the agreed amount of $14,000 are payable by the applicant to the Ministry within 30 days.
Marrocco J.
Wilton-Siegel J.
Nolan J.
Date: