SUPREME COURT OF CANADA
Kane v. Bd. of Governors of U.B.C., [1980] 1 S.C.R. 1105
Date: 1980-03-03
Julius Kane Appellant; and
Board of Governors of the University of British Columbia Respondent.
1979: October 25, 26; 1980: March 3.
Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Colleges and universities — University president ordering suspension of faculty member — Appeal to Board of Governors — Appellant's withdrawal following conclusion of hearing by Board — Further facts given to Board by president in absence of appellant — Breach of natural justice — Failure to observe rule expressed in maxim audi alteram partem.
Two deans of faculties at the University of British Columbia recommended that the appointment of the appellant (K), a professor at the University, be terminated for cause, the chief complaint being that he had made improper use of the university computer facilities for personal purposes. Following a meeting called by the President of the University, at which K and his counsel were present, the deans recommended that, instead of terminating K's appointment, he should be suspended without salary for three months, and be required to make financial restitution to the University. The deans were influenced by the argument that the irregular procedures followed by K were the result of a misunderstanding rather than a deliberate attempt to deceive, and that administrative officers of the University may have been lax in discharging their duties to such a degree as to mislead K as to the proper procedures to be followed.
The President of the University acted according to the deans' recommendation. He suspended K for three months, without salary, pursuant to s. 58(1) of the Universities Act, 1974 (B.C.), c. 100, and directed him to provide a full accounting and restitution of all sums due the University.
K appealed to the Board of Governors of the University, pursuant to s. 58(3). K did not question the fact that he had used the university computer for his own purposes, but felt that he should not be suspended for doing so. The President attended the meeting as a member of the Board. Section 61 of the Universities Act provides
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that the President is a member of the Board "and shall attend its regular meetings."
K and his counsel were heard by the Board. K answered questions directed to him by members of the Board. During the hearing, the President of the University responded to questions directed to him by Board members, but did not ask questions of K or his counsel.
At the conclusion of the hearing, the chairman requested K and his counsel to leave so that the Board might deliberate. Following an adjournment for dinner, the Board deliberated, the University President being present throughout. The President did not participate in the discussions. Nor did he vote upon the resolution. He did, however, answer questions directed to him by Board members. The Board approved the three-month suspension of K, without salary, and the order for a full accounting and restitution of all sums due to the University for the use of the computer for private and commercial affairs.
K petitioned the Supreme Court of British Columbia for an order that the Board resolution be quashed, pursuant to the Judicial Review Procedure Act, 1976 (B.C.), c. 25. The petition was dismissed. A majority of the British Columbia Court of Appeal dismissed an appeal from the trial judgment. K appealed from the judgment of the Court of Appeal to this Court.
Held (Ritchie J. dissenting): The appeal should be allowed.
Per Martland, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.: The submission which was based upon the fact that the President testified or gave evidence during the postprandial session in the absence of K and that this amounted to a breach of the principles of natural justice and a failure to observe the rule expressed in the maxim audi alteram partem was accepted. Applying the following principles, the appeal must be allowed.
1. It is the duty of the courts to attribute a large measure of autonomy of decision to a tribunal, such as a Board of Governors of a University, sitting in appeal, pursuant to legislative mandate.
2. As a constituent of the autonomy it enjoys, the tribunal must observe natural justice. To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument.
3. A high standard of justice is required when the right to continue in one's profession or employment is at ' stake. A disciplinary suspension can have grave and permanent consequences upon a professional career.
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4. The tribunal must listen fairly to both sides giving the parties to the controversy a fair opportunity for correcting or contradicting any relevant statement prejudicial to their views.
5. Unless expressly or by necessary implication empowered to act ex parte, an appellate authority must not hold private interviews with witnesses or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny.
6. The Court will not inquire whether the evidence did work to the prejudice of one of the parties; it is sufficient if it might have done so.
The Board was under an obligation to postpone further consideration of the matter until such time as K might be present and hear the additional facts adduced; at the very least the Board should have made K aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made. In the event, the Board followed neither course. The Board heard the further facts, deliberated, and ruled against K. In doing so, it made a fundamental error. The danger against which the Courts must be on guard is the possibility that further information could have been put before the Board for its consideration which affected the disposition of the appeal.
Per Ritchie J., dissenting: K knew from the outset exactly what it was that he was charged with, and he had an opportunity to present his case and to examine the witnesses against him. It could not be suggested that the President decided to wait until K was absent before providing the members of the Board with facts prejudicial to K, what the allegations really were and the reasons why the penalty was reduced from termination to suspension. If this had been the case there would indeed have been a grave breach of good faith on the part of the President and other Board members and a denial to the appellant of the fundamental right to be heard in his own defence in breach of the elementary principles of natural justice.
The statement contained in a letter from a member of the Board to the counsel for the University to the effect that the President provided the Board with necessary facts without in any way discussing the merits of the appeal, was too slender a thread upon which to support an accusation of such gravity against men of presumed integrity acting under a statutory authority.
[Local Government Board v. Arlidge, [1915] A.C. 120; Ridge v. Baldwin, [1962] 1 All E.R. 834; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; Abbott v. Sullivan, [1952] 1 K.B. 189; Board of Education v. Rice, [1911] A.C. 179; Kanda v. Government of the Federation of Malaya, [1962] A.C. 322;
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Errington v. Ministry of Health, [1935] 1 K.B. 249; Re Brook and Delcomyn (1864), 16 C.B.R. (N.S.) 403; Re an Arbitration between Gregson and Armstrong (1894), 70 L.T. 106; R. v. Deputy Industrial Injuries Commissioner, Ex p. Jones, [1962] 2 Q.B. 677; Pfizer Co. Ltd. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456; Jeffs v. New Zealand Dairy Production and Marketing Bd., [1967] 1 A.C. 551; R. v. Architects' Registration Tribunal, Ex p. Jaggar (1945), 6I T.L.R. 445, referred to.]
APPEAL from a judgment of the Court of Appeal for British Columbia, dismissing an appeal from the dismissal of a petition under the Judicial Review Procedure Act, 1976 (B.C.), c. 25. Appeal allowed, Ritchie J. dissenting.
David Roberts, for the appellant.
G. S. Cumming, Q.C., and M. A. Cummings, for the respondent.
The judgment of Martland, Pigeon, Dickson, Beetz, Estey and McIntyre JJ. was delivered by
DICKSON J.—Julius Kane holds tenured appointment as a professor at the University of British Columbia. On February 21, 1977, the Dean of the Faculty of Graduate Studies and the Dean of the Faculty of Science recommended that Dr. Kane's appointment be terminated for cause. It was alleged he had made improper use of University computer facilities for personal purposes. It was further alleged that he had improperly used his National Research Council grant to support private work and to purchase hardware items not related to the purposes of the grant.
Following a meeting called by the President of the University, Dr. Douglas T. Kenny, at which Dr. Kane and his counsel were present, the Deans recommended that, instead of terminating Dr. Kane's appointment, he should be suspended without salary for three months, and be required to make financial restitution to the University. The Deans were influenced by the argument that the irregular procedures followed by Dr. Kane were
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the result of a misunderstanding rather than a deliberate attempt to deceive, and that administrative officers of the University may have been lax in discharging their duties to such a degree as to mislead Dr. Kane as to the proper procedures to be followed.
The President of the University acted according to the Deans' recommendation. He suspended Dr. Kane for three months, without salary, pursuant to s. 58(1) of the Universities Act, 1974 (B.C.), c. 100, and directed him to provide a full accounting and restitution of all sums due the University. Section 58 of the Act reads:
58. (1) The president has power to suspend any member of the teaching and administrative staffs and any officer or employee of the university.
(2) Upon the exercise of the power, he shall forthwith report his action to the board with a statement of his reasons.
(3) A person who is suspended under this section has a right of appeal to the board.
Dr. Kane appealed to the Board of Governors of the University, pursuant to s. 58(3). The appeal came before a regular meeting of the Board of Governors. Dr. Kane did not question the fact that he had used the university computer for his own purposes, but felt that he should not be suspended for doing so. The President attended the meeting as a member of the Board. Section 61 of the Universities Act provides that the President is a member of the Board "and shall attend its regular meetings."
Dr. Kane and his counsel were heard by the Board. Dr. Kane answered questions directed to him by members of the Board. During the hearing, the President of the University responded to questions directed to him by Board members, but did not ask questions of Dr. Kane or his counsel.
At the conclusion of the hearing, the Chairman requested Dr. Kane and his counsel to leave so that the Board might deliberate. Following an adjournment for dinner, the Board deliberated, the University President being present throughout. According to the findings of the Chambers judge,
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"Dr. Kenny did not participate in the discussions. Nor did he vote upon the resolution. He did, however, answer questions directed to him by Board members." The Board approved the three-month suspension of Dr. Kane, without salary, and the order for a full accounting and restitution of all sums due to the University for the use of the computer for private and commercial affairs.
Dr. Kane petitioned the Supreme Court of British Columbia for an order that the Board resolution be quashed, pursuant to the Judicial Review Procedure Act, 1976 (B.C.), c. 25.
The main thrust of the case advanced on behalf of Dr. Kane was that no man could be a judge in his own cause, and although no actual bias on the part of the President was alleged, his presence during the deliberations of the Board violated the principles of natural justice. The judge rejected this submission, being of opinion that the judgment of this Court in Law Society of Upper Canada v. French, determined the application. The judge considered that the President was in no sense an accuser or prosecutor, and the Legislature, in directing the President to attend regular Board meetings, had implicitly accepted the duplication which followed through the President making the decision to suspend and then sitting on the Board of Governors on appeal from that decision. Reference was also made by the judge to King v. University of Saskatchewan, and to Ringrose v. College of Physicians and Surgeons of Alberta.
A majority (McFarlane and Aikins, JJ.A., Lambert J.A. dissenting) of the British Columbia Court of Appeal agreed with the Chambers judge and dismissed an appeal brought to that Court by Dr. Kane. The Court rejected the argument based upon the dual position of the University President as originator of the suspension and member of the tribunal sitting in appeal. Rejected also was a second submission, apparently not advanced expressly in the Court of first instance, impugning the presence and conduct of the University President
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during the deliberations of the Board, after Dr. Kane and his counsel had withdrawn. This argument rested upon the fact that the President testified or gave evidence during the postprandial session in the absence of Dr. Kane. It is contended that this amounted to a breach of the principles of natural justice and a failure to observe the rule expressed in the maxim audi alteram partem. It is to that argument that I now turn because, in my view, it is one to which the University can give no compelling answer. If this ground of appeal succeeds, as I think it must, it is unnecessary to address the argument resting upon the dual role of the President, the maxim nemo judex in causa sua, and the ramifications of the King, French and Ringrose decisions.
The evidence as to what occurred following the dinner adjournment is scant. Paragraph 7 of Dr. Kane's petition reads:
7. During the consideration by the Board of Governors of the said appeal leading to the said Resolution, the President, Douglas T. Kenny, was present and took part in the consideration and the discussion of the merits of the said appeal.
Dr. Kane's affidavit in support of his petition reads in part:
6. I am informed by the said Roberts [David Roberts, counsel for Doctor Kane] and verily believe that he was informed by a member of the Board of Governors, Mr. George Morfitt, that following the hearing of my appeal pursuant to Section 58 of the Universities Act and when the Board of Governors was considering my appeal following the hearing, the President of the University of British Columbia, Douglas T. Kenny, from whose decision the said appeal was brought, was present and took part in the discussion leading to the said Resolution.
An affidavit was filed in which Mr. Morfitt, a member of the Board of Governors, swore that during the meeting after dinner President Kenny did not participate in the discussions with regard to the petitioner. In clarification of Mr. Morfitt's affidavit, Mr. George S. Cumming, counsel for the University, wrote to counsel for Dr. Kane as follows:
I refer you to our telephone conversation of December 14th in which you sought some clarification of the affidavit sworn by Mr. George Morfitt.
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Mr. Morfitt has advised me as follows:
"I note that Item 7 on page 2 of the Petition Facts states that President Kenny 'was present and took part in the consideration and discussion of the minutes [should read "merits"] of the said appeal'. While the President did provide the Board with the necessary facts relating to the Kane suspension it can be asserted that the President was at all times most careful not to take part in the consideration and the discussion of the merits of the appeal. A similar comment could be made in respect of the statement made in Item 6 of the Affidavit."
I think it would be appropriate if this were filed with the Court on the hearing of the Petition. We can thereby avoid the necessity of any cross-examination upon affidavits,
The critical words are " ... the President did provide the Board with the necessary facts relating to the Kane suspension ... " There was no cross-examination upon affidavits. The clarification which the letter sought to achieve is less than entire but this much is clear: the Board was furnished with "the necessary facts" relating to the suspension, in the absence of Dr. Kane and his counsel. In those circumstances, I do not see how the resolution of the Board can stand.
The following propositions, in my view, govern the outcome of this appeal:
1. It is the duty of the courts to attribute a large measure of autonomy of decision to a tribunal, such as a Board of Governors of a University, sitting in appeal, pursuant to legislative mandate. The Board need not assume the trappings of a court. There is no lis inter partes, no prosecutor and no accused. The Board is free, within reason, to determine its own procedures, which will vary with the nature of the inquiry and the circumstances of the case. Members of the Board are drawn from all constituencies of the community. They normally serve without remuneration in the discharge of what is frequently an arduous and thankless form of public service. Few, if any, of the members of the Board will be legally trained. It would be wrong, therefore, to ask of them, in the discharge of their quasi-judicial duties, the high standard of technical performance which one may properly expect of a court. They are not fettered by the strict evidential and other rules applicable to proceedings before courts of law. It is sufficient
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that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice: per Lord Parmoor in Local Government Board v. Arlidge, at p. 140. Let me make it clear that in this appeal nothing has been said which in any way impugns the integrity or bona fides of any member of the Board of Governors of the University of British Columbia.
2. As a constituent of the autonomy it enjoys, the tribunal must observe natural justice which, as Harman L.J. said, [Ridge v. Baldwin, at p. 850] is only "fair play in action". In any particular case, the requirements of natural justice will depend on "the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter which is being dealt with, and so forth": per Tucker L.J. in Russell v. Duke of Norfolk, at p. 118. To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument.
3. A high standard of justice is required when the right to continue in one's profession or employment is at stake. Abbott v. Sullivan, at p. 198; Russell v. Duke of Norfolk, supra, at p. 119. A disciplinary suspension can have grave and permanent consequences upon a professional career.
4. The tribunal must listen fairly to both sides, giving the parties to the controversy a fair opportunity "for correcting or contradicting any relevant statement prejudicial to their views". Board of Education v. Rice, at p. 182; Local Government Board v. Arlidge, supra, at pp. 133 and 141.
5. It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellante authority must not hold private interviews with witnesses (de Smith, Judicial Review of Administrative Action (3rd. ed.) 179) or, a fortiori, hear evidence
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in the absence of a party whose conduct is impugned and under scrutiny. Such party must, in the words of Lord Denning in Kanda v. Government of the Federation of Malaya, at p. 337, " ... know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. ... Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other." In Errington v. Ministry of Health, Greer L.J. held that a quasi-judicial officer must exercise powers in accordance with the rules of natural justice, and must not hear one side in the absence of the other:
If ... he takes into consideration evidence which might have been, but was not, given at the public inquiry, but was given ex parte without the owners having any opportunity whatsoever to deal with that evidence, then it seems to me that the confirming Order was not within the powers of the Act. (p. 268)
The principle was summarized in the headnote in these words:
If the Minister holds a private inquiry to which the owners are not invited or takes into consideration ex parte statements with which the owners have had no opportunity of dealing he is not acting in accordance with correct principle of justice ... .
In the early case of Re Brook and Delcomyn, Erie C.J. came to the conclusion that the law had been violated when an arbitrator brought before the umpire evidence which had never been communicated to the other arbitrator and which, consequently, one of the parties never had an opportunity of meeting by contradictory evidence. Erie C.J. referred to this as "not a point of form" but a matter of substance, and "one of the last and deepest importance". A similar case is Re an Arbitration between Gregson and Armstrong,
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in which an award was set aside at the instance of a landlord when, all of the evidence on both sides having been heard, the arbitrators on a subsequent day, before making their award, held a meeting on the farm at which the outgoing tenant was present, but not the landlord. In a much later case, R. v. Deputy Industrial Injuries Commissioner, Ex p: Jones, the tribunal received evidence which was both fresh and highly prejudicial to the applicant's position. The case at bar cannot be put so strongly, but the principle to be applied is the same. Lord Parker C.J., in granting the order for certiorari, stated that a tribunal is not entitled to continue privately to obtain evidence between the end of a hearing and the reaching of decision "without notifying the parties thereafter of the advice or information received, so as to give the parties an opportunity of having a further hearing if need be, or, at any rate, commenting on the information and making their submissions thereon" (p. 686).
A recent decision of this Court which has relevance for this appeal is Pfizer Company Limited v. Deputy Minister of National Revenue for Customs and Excise, in which Pigeon J., speaking for the Court, said at p. 463:
While the Board is authorized by statute to obtain information otherwise than under sanction of an oath or affirmation ... this does not authorize it to depart from the rules of natural justice. It is clearly contrary to those rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.
Pfizer is not a case in which a tribunal heard one party in the absence of the other. It establishes, however, the principle that each party to a hearing is entitled to be informed of, and to make representations, with respect to evidence which
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affected the disposition of the case. See also R. v. Birmingham City Justices, Ex p. Chris Foreign Foods (Wholesalers) Ltd.; R. v. Barnsley Metropolitan Borough Council, Ex p. Hook; R. v. Justices of Bodmin, Ex p. McEwen.
6. The court will not inquire whether the evidence did work to the prejudice of one of the parties; it is sufficient if it might have done so. Kanda v. Government of the Federation of Malaya, supra, at p. 337. In the case at bar, the Court cannot conclude that there was no possibility of prejudice as we have no knowledge of what evidence was, in fact, given by President Kenny following the dinner adjournment. See Jeffs v. New Zealand Dairy Production and Marketing Board, at p. 567. We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons.
Applying the foregoing principles, I think this appeal must succeed. The Board was aware of the possibly anomalous position of the President during the after dinner deliberations. The Chairman, vigilant in ensuring that Dr. Kane receive a fair hearing, advised the meeting that the President should not participate in discussion, nor vote. There can be no criticism of this direction. The vigilance, unfortunately, was not carried to its full length for, despite the care with which the appeal was conducted, the Board, as appears to be the case, found that it needed additional, "necessary" facts before reaching a decision, and the President furnished those facts. It is quite immaterial whether the facts were furnished by the President or, for example, another professor at the University. It cannot improve matters that the informant was the University President.
The Board was under an obligation to postpone further consideration of the matter until such time as Dr. Kane might be present and hear the additional
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facts adduced; at the very least the Board should have made Dr. Kane aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made. In the event, the Board followed neither course. The Board heard the further facts, deliberated, and ruled against Dr. Kane. In so doing, it made a fundamental error. The danger against which the Courts must be on guard is the possibility that further information could have been put before the Board for its consideration which affected the disposition of the appeal. See R. v. Architects' Registration Tribunal, Ex p. Jaggar, at p. 447.
I would allow the appeal, set aside the judgment of the Court of Appeal, and quash the resolution passed on July 5, 1977, by the Board of Governors of the University of British Columbia relative to the appellant, with costs to the appellant in all Courts.
The following are the reasons delivered by
RITCHIE J. (dissenting)—T his is an appeal from a judgment of the Court of Appeal of British Columbia dismissing an appeal from a judgment rendered at trial by Mr. Justice Macdonald where-by he dismissed the petition of the present appellant brought pursuant to the Judicial Review Procedure Act, 1976 (B.C.), c. 25, seeking to quash a resolution passed by the respondent Board of Governors on July 5, 1977, approving the suspension of the appellant from his employment as a professor at the University of British Columbia for the three months May to July 1977, inclusive.
I have had the advantage of reading the reasons for judgment prepared for delivery by Mr. Justice Dickson in this case, but as I am unable to agree with the conclusion at which he arrives on the very slender record before us, I find it necessary to express my views separately.
The judgment rendered at trial by Mr. Justice/ Macdonald is now conveniently reported in 82 D.L.R. (3d) at p. 494 and the reasons for judgment of the Court of Appeal of British Columbia
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are also now reported in 11 B.C.L.R. 318; both of these reports contain a full review of the circumstances giving rise to this appeal.
The petitioner, Julius Kane, is a professor at the University of British Columbia with tenure of appointment but it was recommended by the Deans of the Faculty of Graduate Studies and of the Faculty of Science that his employment with the University be terminated for cause, the chief complaint being that he had made improper use of the university computer facilities for personal purposes.
Professor Kane at no time disputed the allegation that he had made use of the University computer in the manner complained of, but he complained of the penalty sought to be imposed by way of termination of his services, and following a meeting which was called by the President of the University, Dr. Douglas T. Kenny, at which Kane and his counsel were present, the Deans changed their recommendation to that of suspension without salary for three months and a requirement of financial restitution to the University by Kane. President Kenny complied with this latter recommendation and issued an order in conformity with it pursuant to s. 58(1) of the Universities Act, 1974 (B.C.), c. 100 (hereinafter called the Act). Section 58 of that Act reads:
58. (1) The president has power to suspend any member of the teaching and administrative staffs and any officer or employee of the university.
(2) Upon the exercise of the power, he shall forthwith report his action to the board with a statement of his reasons.
(3) A person who is suspended under this section has a right of appeal to the board.
Professor Kane exercised the right of appeal to which he was entitled under s. 58(3) and in due course the appeal came on for hearing before a regular meeting of ten members of the Board of Governors which included the Chairman (The Honourable T. A. Dohm, Q.C.) and the President whose presence was required by s. 61 of the Act. This meeting of the Board was also attended by the Dean of Science, the Dean of Geology and the Dean of Graduate Studies together with three other faculty members. Professor Kane together
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with his counsel and the counsel for the Board were also present. There is no report in the record of the proceedings at this meeting of the Board of Governors but I am prepared to adopt the account contained in the judgment of the learned trial judge at 82 D.L.R. (3d) at p. 497:
The appeal came before the board of governors at a regular meeting on July 5th. It was one of many items on the agenda. Among the members of the board present was Dr. Kenny. When the appeal came on for hearing other persons joined the meeting, including the petitioner and his counsel, Mr. Roberts. The board heard from both Mr. Roberts and Dr. Kane. Dr. Kane was questioned by board members on points he had brought forward. During the hearing president Kenny did not ask questions of the petitioner or Mr. Roberts. He did answer questions directed to him by other members of the board and may have responded to statements made by Dr. Kane or Mr. Roberts. At the conclusion of the hearing the chairman requested Mr. Roberts and his client to leave so that the board could deliberate. The other non-members who attended for the hearing of the appeal also left. The board's deliberations upon the appeal commenced after adjournment for dinner. Dr. Kenny did not participate in the discussions. Nor did he vote upon the resolution. He did, however, answer questions directed to him by board members.
Accepting as I do this version of the proceedings, it appears to me to be plain that at the initial meeting of the Board the appellant was given full opportunity to answer all allegations against him and to present his version of the case. This opportunity was offered to him in the presence of a group of persons who as governors must be taken to have had the welfare of the University at heart, and whose chairman, the Honourable Mr. Dohm, was a former judge of the Supreme Court of British Columbia. Evidence was given by both the appellant and President Kenny and Dean Larkin, who as Dean of Graduate Studies had been one of those responsible for recommending that the appellant's employment with the University should be terminated, and I would think it to be a fair inference that all relevant facts having to do with the plight of the appellant would have been canvassed by either one or more of these witnesses at that time. It is to be remembered that the Board was acting pursuant to statutory authority and
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there is no suggestion anywhere in the record that the proceedings which took place at the initial hearing were not fairly and properly conducted giving due weight to the position of the appellant and the results flowing from his suspension from office.
However, the main complaint of the appellant relates to the fact that after the hearing had terminated the Chairman, President and other members of the Board adjourned for dinner and, in the absence of the appellant and his counsel, reconvened to continue their meeting which had been concerned with a number of issues in addition to the appellant's appeal and which culminated in so far as the appellant was concerned with the passage of the resolution ordering his suspension. By para. 7 of his petition the appellant complained that:
During the consideration by the Board of Governors of the said appeal leading to the said Resolution, the President, Douglas T. Kenny, was present and took part in the consideration and the discussion of the merits of the said appeal.
The affidavit filed by the appellant in support of his petition contained the following paragraph:
I am informed by the said Roberts and verily believe that he was informed by a member of the Board of Governors, Mr. George Morfitt, that following the hearing of my appeal pursuant to Section 58 of the Universities Act and when the Board of Governors was considering my appeal following the hearing, the President of the University of British Columbia, Douglas T. Kenny, from whose decision the said appeal was brought, was present and took part in the discussion leading to the said Resolution.
This affidavit was dated August 8, 1977, but it is noteworthy that an affidavit was filed by Mr. Morfitt on September 6th of the same year in which he stated as follows after having described the Board meeting:
11. Mr. Roberts and the petitioner left the hearing. The hearing was adjourned
12. Following dinner the meeting of the Board was called to order.
13. President Kenny did not participate in the discussions with regard to the petitioner.
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This latter affidavit constitutes the only sworn evidence coming from any member of the Board who was present at the after dinner meeting and if it stood alone there can be no doubt that it would support the contention that nothing adverse was said about the appellant at that meeting. There was, however, a letter written by the solicitor for the University to Dr. Kane's counsel in which he quotes from Mr. Morfitt in part as follows:
While the President did provide the Board with the necessary facts relating to the Kane suspension it can be asserted that the President was at all times most careful not to take part in the consideration and the discussion of the merits of the appeal.
The words which I have italicized are treated by the appellant as being potentially prejudicial to him in that they might be taken to mean that the President stated some necessary facts relating to the Kane suspension which could be construed adversely to him and he had no opportunity to answer. This submission is supported by reference to the case of Kanda v. Government of the Federation of Malaya in which the report of an inquiry containing a most damaging indictment against Inspector Kanda as an unscrupulous scoundrel was made available to the adjudicating officer before he sat to inquire into the charge while it was withheld from Kanda. It was in these circumstances that Lord Denning said at p. 337:
It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough.
The facts of the Kanda case are obviously vastly different from those with which we are here concerned. In the present case Kane, knew from the outset exactly what it was that he was charged with and as I have explained, he had an opportunity to present his case and to examine the witnesses against him, and it cannot in my view be suggested that the President decided to wait until Kane was absent before providing the members of
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the Board with facts prejudicial to Kane, what the allegations really were and the reasons why the penalty was reduced from termination to suspension. If this had been the case there would indeed have been a grave breach of good faith on the part of the President and other Board members and a denial to the appellant of the fundamental right to be heard in his own defence in breach of the elementary principles of natural justice.
In my view the statement contained in Mr. Morfitt's letter to the effect that the President provided the Board with necessary facts without in any way discussing the merits of the appeal, is too slender a thread upon which to support an accusation of such gravity against men of presumed integrity acting under a statutory authority. I say this having in mind particularly the reasons for judgment of Mr. Justice Pennell in Re Schabas and Caput of the University of Toronto, which is referred to by Macdonald, J.A., in the present case at 11 B.C.L.R. 326 and where he said:
Subject to evidence of actual bias, I am of the opinion that the Court should be reluctant to say that a presumption of bias can arise in so far as it relates to the personnel of a quasi-judicial body where the composition of the tribunal is specifically authorized by the Legislature ....It is to be assumed that a body of men entrusted by the Legislature with large powers affecting the rights of others will act with good faith.
The Latin maxim "omnia praesumuntur rite acta esse ... " has been interpreted as meaning that where acts are of an official nature or require the concurrence of official persons a presumption arises in favour of their due execution. The maxim is an old one but not I think dead in the administration of our law, and in my view it expresses a principle applicable to the present circumstances. In Halsbury's Laws of England, 3rd ed., vol. 10, at p. 457 it is said:
The presumption omnia rite esse acta (for example, that a man who has acted in a public capacity was duly appointed and has properly discharged his official duties) is common to criminal and civil proceedings.
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For all these reasons, as well as for those contained in the reasons for judgment of Mr. Justice McFarlane and in the cases decided in this Court to which he has made reference, I would dismiss this appeal with costs.
Appeal allowed with costs, RITCHIE J. dissenting.
Solicitors for the appellant: Macrae, Montgomery, Spring & Cunningham, Vancouver.
Solicitors for the respondent: Cumming, Richards, Underhill, Fraser, Skillings, Vancouver.
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