McNamara

Peter A. Simm was lead counsel for the Appellant (with C. Chop) in McNamara v. Ontario (Racing Commission)  (1998, Ont. C.A.), winning two separate motions in the Ontario Court of Appeal — for leave to appeal to the Ont. C.A. and an interim stay of the ORC’s order; and for a stay pending the disposition of the application for leave to the Supreme Court of Canada. On the appeal itself, the majority ruled against the Appellant, but Finlayson J.A. vigorously dissented.

This case grappled with a fundamental issue in administrative law — whether a fair hearing de novo  (such as by an appellate tribunal statutorily empowered to conduct de novo  hearings) automatically cures any breach of natural justice by the original tribunal. McNamara remains the leading authority on this point.

McNamara  is cited in 29 Canadian appellate court decisions made as recently as 2019, including by the Federal Court of Appeal, the Nova Scotia Court of Appeal, the B.C. Court of Appeal (twice), the Ontario Court of Appeal, and the Ontario Divisional Court. As well, this case is cited in 9 legal textbooks, and extensively discussed in a law journal paper.

McNamara  has been cited internationally, such as by the High Court of Ireland in 2009, and as one of a mere handful of Canadian cases in a leading British textbook, De Smith’s Judicial Review  (8th ed., 2018).

Full cite: McNamara v. Ontario (Racing Commission), 1998 CanLII 7144, 164 D.L.R. (4th) 99, 111 O.A.C. 375, 9 Admin. L.R. (3d) 49, [1998] O.J. No. 3238, 1998 CarswellOnt 3244 (Ont. C.A.) (the appeal) — [1998] O.J. No. 2065, 1998 CarswellOnt 1998 (Ont. C.A.) (successful motion for leave to appeal to the Ont. C.A. and for an interim stay of the ORC’s order) — (1998), 164 D.L.R. (4th) 99n (Ont. C.A., single judge) (successful motion for a stay pending the disposition of the motion for leave to appeal to the S.C.C.).