Introduction
Generally speaking, administrative tribunals are given deference by reviewing courts in selecting their own procedure. Reviewing courts understand that tribunals must balance the procedural rights of parties to a fair hearing, with the need to expeditiously determine the matters before them.
But in Sharpe v. CTS Canadian College, 2026 ONSC 1138 (Div. Ct.), and Nuroh v. TD General Insurance Co., 2025 ONSC 6997 (Div. Ct.), the Divisional Court found that the processes chosen by the Human Rights Tribunal of Ontario and the License Appeal Tribunal were unfair. In both cases, the applicant’s ability to cross-examine a key witness was restricted.
Sharpe stems from the HRTO’s failure to adhere to its own rules that enshrine the right to cross-examine key witnesses, without explanation. By contrast, in Nuroh, the Divisional Court criticized the LAT for relying too much on its rules at the expense of a fair hearing.
These may seem like mixed signals from the Divisional Court, illustrating a “goldilocks” situation of the appropriate amount of reliance to place on procedural rules to ensure a fair hearing. However, despite these apparent contradictions, both cases highlight that the ability to cross-examine a central witness whose evidence goes to the very heart of the matter in a quasi-judicial proceeding is fundamental to a fair process.
Sharpe v. CTS Canadian College, 2026 ONSC 1138 (Div. Ct.)
In Sharpe, the applicant applied for judicial review of a decision of the HRTO. The HRTO had dismissed an application for relief alleging discrimination by the respondents, CTS Canadian College and Modern College of Hairstyling and Esthetics, based on disability.
There were “enormous delays” in hearing this matter. The proceeding was commenced in September 2015. A hearing took place in 2018 before a Tribunal member who subsequently left the Tribunal but failed to release a decision before their departure. In 2024, a new adjudicator issued directions for a de novo merits hearing, but limited the evidence to witness statements that had been filed for the first hearing.
Despite this ruling, the HRTO allowed the respondents to file a second witness statement for their key witness. This second statement was twice as long as the first one and offered a new justification for Ms. Sharpe’s termination. But, the HRTO ruled that Ms. Sharpe was prohibited from cross-examining this witness about the differences between his two witness statements.
On judicial review, the Divisional Court applied the Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, factors to determine whether the HRTO had met the duty of procedural fairness. The Divisional Court found that this quasi-judicial process was governed by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which entitles parties to “conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.”[1] The Court also highlighted that, at common law, “cross-examination is the greatest known method for detecting the truth”.[2]
Ms. Sharpe had a legitimate expectation that her counsel could use the “crucial tool” of cross-examination to explore the differences between the two witness statements. Preventing cross-examination deprived her of challenging his credibility on this evidence, which was decisive to the outcome.
As the Divisional Court highlighted, the HRTO was motivated to deal with this case as promptly and efficiently as possible due to the history of prolonged delay. However, “deference cannot be afforded when a tribunal ignores its own rules and rulings in an ad hoc and one-sided manner.”[3] Ultimately, this decision highlights that procedural efficiency cannot come at the cost of a party’s fundamental right to a fair hearing.
Nuroh v. TD General Insurance Co., 2025 ONSC 6997 (Div. Ct.)
In this concurrent appeal and judicial review, the Divisional Court found that the LAT failed to accord procedural fairness to the applicant/appellant, Ms. Nuroh. After a motor vehicle accident, Ms. Nuroh applied for benefits from her insurer, TD. She claimed she had suffered a catastrophic impairment, which TD denied. Ms. Nuroh applied to the LAT for a determination that she was catastrophically impaired, seeking related accident benefits.
Each party’s expert prepared reports on the issue of catastrophic impairment, and the parties intended that these experts would testify at the hearing. Under the LAT’s Rules, however, only the LAT has the authority to issue a summons for a witness’s attendance at a hearing.
TD’s initial request to the LAT for a summons to their expert on catastrophic impairment, Dr. Hasan, was refused. This was because Dr. Hasan was not identified by name on TD’s witness list, even though he was identified generically as an expert on catastrophic impairment. TD then advised Ms. Nuroh that it would make Dr. Hasan available at the hearing for cross-examination, but later confirmed it could not secure his participation. By the time Ms. Nuroh’s counsel learned this, the deadline under the LAT’s Rules for serving a summons had passed. The LAT refused Ms. Nuroh’s summons request for Dr. Hasan on that basis, despite the Rules providing it with discretion to allow a witness to be called where these requirements are not met.
At the hearing, Ms. Nuroh’s expert on catastrophic impairment testified and was cross-examined on her report. Dr. Hasan’s reports were admitted into evidence, but as the LAT had refused to issue him a summons, he was not cross-examined. In the decision, the LAT found that Ms. Nuroh was not catastrophically impaired, largely relying on Dr. Hasan’s reports.
The Divisional Court agreed with Ms. Nuroh that the LAT breached procedural fairness by failing to issue a summons for Dr. Hasan’s attendance at the hearing and failing to facilitate his cross-examination.
Applying the Baker factors, a high level of procedural fairness was owed here. It was a full, contested hearing with numerous expert witnesses and, apart from Dr. Hasan, cross-examinations.
The Court found that the “unfairness arises from the Tribunal’s overreliance on technical rules” in refusing to issue a summons to Dr. Hasan, “and from a failure to focus on the requirements for a fair hearing”.[4]
The Court highlighted that both parties sought to have Dr. Hasan summoned, and the party prejudiced by the LAT’s refusal was the applicant, who bore the burden of proof, which should have been considered. Dr. Hasan was a central witness on the most important contested issue, and the LAT should have exercised its discretion to issue the summons to ensure fairness, despite the technical non-compliance with its Rules.
Conclusion
The Divisional Court is critical of the HRTO ignoring its own rules in Sharpe, and the LAT’s overreliance on its own rules in Nuroh. These may appear to be contradictory messages from the Court about how much, or how little, a tribunal can rely on its rules in determining the procedure of a hearing.
However, together, these cases highlight that procedural fairness will generally require a meaningful opportunity to cross-examine a key witness on contested evidence that is central to the outcome of a quasi-judicial hearing. Deference to a tribunal’s choice of procedure will not be afforded by a reviewing court where an applicant’s right to meaningfully challenge key evidence is restricted.
[1] Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 10.1(b); Sharpe v. CTS Canadian College, 2026 ONSC 1138 (Div. Ct.) at para. 31.
[2] Sharpe v. CTS Canadian College, 2026 ONSC 1138 (Div. Ct.) at para. 33.
[3] Sharpe v. CTS Canadian College, 2026 ONSC 1138 (Div. Ct.) at para. 39.
[4] Nuroh v TD General Insurance Co., 2025 ONSC 6997 (Div. Ct.) at para. 38.
