Federal Court. If a party argues on appeal that they were denied procedural fairness in proceedings in the court below, is the question of whether the appeal is futile to be determined "from the standpoint of whether it has been demonstrated in the appeal that had the appellants been accorded procedural fairness it was inevitable that the primary judge would have made an order dismissing the appellants’ application for judicial review"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the general principle according to which a judge is obliged to accord procedural fairness to litigants appearing before him or her subject to the qualification that an appellate court will not remit the matter for a rehearing if it would be futile to do so?
Question 2: If the answer to Question 1 is 'yes', is the question of futility "analogous to the concept of materiality and practical injustice that applies to determine if an administrative decision-maker’s failure to accord a person procedural fairness results in the decision-maker exceeding the limits or failing to exercise power or jurisdiction according to law"?
Question 3: If the answer to Question 2 is 'yes', does an appellant claiming a denial of procedural fairness at trial carry the burden of proving on the balance of probabilities that there was ‘a realistic possibility that a different decision could have been made’ had the trial judge accorded the appellant procedural fairness?
Question 4: If the answer to Question 2 is 'yes', is that burden discharged by establishing that the decision could have been different 'as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined'?
Question 5: If the answer to Question 4 is 'yes', is the standard of reasonable conjecture undemanding?
Question 6: Can it be said that, "where a failure of a court to accord a litigant procedural fairness is demonstrated on appeal, an appellate court should order a rehearing unless satisfied that a new hearing would inevitably result in the same judgment or order"?
The Federal Court answered those questions as follows: