Masters was the Ontario agent general in New York, appointed on the prerogative of the premier. Following allegations of sexual harassment, the premier suspended Masters and appointed a team of external investigators who ultimately produced a report finding Masters had harassed seven women. Following a response from Masters, the premier reassigned him to another position in the civil service, which Masters declined and accepted a financial settlement.
Masters applied for judicial review of the report alleging, inter alia, breaches of natural justice, including that the witnesses had been interviewed without Masters or counsel for Masters being present, he had been refused a list of questions, the notes/transcripts/tapes of the interviews, the names of the investigators, and had been essentially unable to interview the witnesses himself.
- Is an oral hearing necessary when the decision is of a largely discretionary nature?
Adams, writing for the court, held, as in Singh, that where credibility will determine the main issue before a decision maker, especially where that main issue is vital to an interested party's professional career, the duty of fairness and the rules of natural justice require that an impartial decision maker first be designated to determine credibility by way of a full oral hearing, permitting witnesses to be subjected to cross-examination.
However, Masters here understood that he served at the pleasure of the premier, that is, there was a significant discretionary element to the appointment of the agent general. In acting to remove Masters, the premier was exercising his prerogative to revoke an appointment, which places this decision at the legislative end of the spectrum. On the other hand, there was no broad public policy agenda here, but rather an individual reputational issue.
On balance, he concludes that no full trial-type hearing was warranted, nor did the duty of fairness extend to requiring the government to facilitate access to the witnesses.
With regard to a reply submission, Adams compares this situation to Inuit Tapirisat, given the discretionary nature. In that case, no reply submission was permitted, but Masters was given that opportunity, which he exercised. He was provided with sufficient disclosure (the substance of the accusations) to make his response.
With regard to all the circumstances, it was clear that the premier was not conducting a trial; this was an investigatory panel to inform a discretionary decision. There was never an adjudicatory element to the investigation such as would attract a higher level of procedural fairness. On balance the procedures were "adequately tailored".
- Where the nature of a decision is discretionary, such as the use of prerogative power, less procedural protections will be afforded.
- When a decision maker is fulfilling an investigative mandate, rather than a determinative one, the affected party will be awarded less procedural protection.