Procedural Fairness – Chapters 3 & 8Administrative Law, Principles & Advocacy

Municipalities, Human Rights, Immigration Regulation and licensing of economic activities and

industries, e.g. natural resources, telecommunications, liquor, housing…

Labour relations, e.g. collective bargaining Income redistribution programs, e.g. welfare,

pensions Social control, e.g. parole board, prison discipline Professions and trades, e.g. law societies,

commissions of inquiry

Administrative law is a set of principles and concepts common to all these different areas of law

I. The Charter and Principles of Fundamental Justice

The clearest source of constitutional protection for procedural claims in Canada is found in section 7 of the Charter

◦S. 7 Canadian Charter◦ Everyone has the right to life, liberty and

security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

However, section 1 allows the government to infringe upon a Charter right, if there are demonstrably justifiable reasons in a free and democratic society.

Therefore the Oaks test might allow a government to deny procedural protections

II. Canadian Bill of Rights

Section 1(a): due process guarantee when “life, liberty, security of the person and enjoyment of property” are at stake.

Section 2(e): “the right to a fair hearing in accordance with the principles of fundamental justice” when a persons rights and obligations are being determined.

Ss. 1(a) & 2(e) Canadian Bill of Rights 1(a) the right of the individual to life, liberty, security of the person

and enjoyment of property, and the right not to be deprived thereof except by due process of law;

  2. Every law of Canada shall, unless it is expressly declared by an

Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

III. Common Law Procedural Fairness Rules

The content of common law procedural fairness is generally summed up in the Latin term audi alteram partem, meaning “hear the other side” or more commonly, “the right to be heard.”

The right to be heard has been interpreted quite broadly, conferring on individuals a variety of procedural entitlements.

IV. Statutes

The enabling statutes of administrative agencies, or statutes with a general application to Tribunals will give rise to the obligation for procedural fairness.

Procedural fairness has come to be regarded as the “bedrock of administrative law.” The prominence of this principle in the administrative context can be traced back to the Supreme Court’s landmark decision in Nicholson v. Haldimond-Norfolk (Regional Municipality). Mr. Nicholson was a probationary police officer who was terminated. His employer provided no reasons for terminating him but claimed that the Police Act allowed it to do so.

The Court found that Mr. Nicholson had a common law right to be treated fairly. Mr. Nicholson should have been advised why his services were no longer needed and should also have been given the opportunity to respond.

The effect of Nicholson was to impose on public authorities a duty to act fairly when making decisions. The threshold for triggering the duty of procedural fairness was and remains quite low, requiring only that an individuals’ “rights, privileges or interests” be at issue.

(a) Parties must be free to conduct their own case In some contexts, the right to be heard requires that an individual or group

have the freedom to put forward their case in the manner in which they choose to. In the normal course of things, an administrative body would not tell a party what witnesses they are required to tender or provide statements for.

(b) Obligation to provide reasons In Baker the Supreme Court recognized that in certain circumstances

statutory authorities had a common law duty to provide reasons for their decisions. Neither Baker nor subsequent case law have required that reasons be provided for all decisions made by administrative bodies. The entitlement for reasons, is like all procedural entitlements, contingent on the circumstances of each case.

(c) Obligation to consider alternative penalties In Megens the Divisional Court also held that the failure to consider alternative

penalties amounted to a breach of procedural fairness. Although the decision of the Commission referred to the balance between protecting the public interest and the desire of individuals to participate in racing, it was devoid of any consideration of an alternate penalty for the applicant. In this regard, the Court held that the Commission’s decision fell short of the standard of fairness required of sentencing authorities.

(d) Opportunity to make oral submissions where decision turns on credibility

The scope of procedural fairness in the context of university decision-making has expanded significantly in recent years. Although such cases are outside of the practice of more formal bodies such as boards and tribunals, the Court’s treatment of these processes is arguably indicative of a shift to higher thresholds of procedural fairness. Further, it is important to recognize that the type of tribunal or board is not determinative of context nor the level of procedural fairness owed. In many cases the importance of the right affected appears to be the most important factor.

(e) Reliance on mistake of fact can amount to a breach of procedural fairness

An individual cannot be heard if he or she is not in attendance for the hearing. In the recent case of Toronto Housing Co.v.Sabrie16 the Divisional Court held that a dismissal of proceedings that was premised on a mistake of fact was a breach of procedural fairness.

(f) Obligation to grant adjournments and the right to respond In some cases, administrative bodies have acted unfairly by refusing to

grant an adjournment. In particular, procedural fairness has been breached where the adjournment would have allowed time to respond.

Most provinces do NOT have any specific legislation in place related to procedures to be followed in administrative decision making.

The exception is British Columbia, Alberta, Quebec and Ontario.

Administrative Procedures Act: This Act only applies if it has been

specifically incorporated into primary legislation or has been promulgated by an order of the Lieutenant Governor in Council

This Act is far less detailed than Ontario’s Act.

Charter of Human Rights and Freedoms

Procedural Guarantee: “full and equal public hearing” whenever a judicial or quasi-judicial body is determining “rights and obligations”.

Administrative Justice Act Applies to Government departments and

other statutory authorities. The Act prescribed a general duty to act

fairly and provides for specific procedural protections.

Statutory Powers Procedure Act (SPPA) The Act has very detailed procedural protections.

However, there are many situations to which this Act does not apply – it is not a far reaching Act.

Application of Act◦ Section 3.(1): Subject to subsection (2), this Act applies

to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.

Sometimes the legislation that governs the decision making body or the decision that needs to be made, contains specific procedural requirements. This is another important source of procedural obligations.

However, there are some qualifications on this:Are the provisions in the legislation a complete code?Does the legislation exclude the possibility that the

procedures could be supplement by common law principles?

Could the procedures (or lack thereof) prescribed in the legislation be challenged on the basis that they are inadequate or that they violate constitutional standards?

Historical Application of Canadian Administrative Law:

Cooper v. Board of Works for Wandsworth District Took a very pragmatic approach to whether or not a hearing

had to be held. Looked at factors such as the nature of the interests at stake, the impact of the decision upon that interests, sanction to be imposed and the costs and benefits of holding a trial.

Judicial v. Administrative: For many years the essential test for assessing whether or

not a hearing was required was based on the distinction between judicial or quasi-judicial bodies, on the one hand, and purely administrative bodies on the other.

This was a very difficult distinction to apply in practice, and the courts never provided clear direction as to what constituted judicial or administrative bodies.

Modern Canadian Administrative Law Has returned to the functional analysis that characterized Cooper.

Key cases:

Nicholson v. Haldimand-Norfolk Regional Police Minister of National Revenue v. Coopers & Lybrand Knight v. Indian Head School Division No. 19 Webb v. Ontario Housing Corporation, 1978 Ont CA Baker v. Canada Minister Citizenship & Immigration Khan v. University of Ottawa (1997), 34 OR (3d)

535

In Khan and University of Ottawa14, the student applicant, Ms. Khan, failed an examination in her second year of law school. Her instructor had graded her examination on the contents of three examination booklets. Ms. Khan maintained that she had handed in a fourth booklet. She appealed her failing grade to the Faculty of Law Examinations Committee and then to the Senate Committee. Both appeals were dismissed. Each committee concluded that Khan had failed to prove the existence of a fourth booklet but neither committee gave her an oral hearing. The matter was appealed to the Divisional Court which did not agree that an oral hearing was required and held that any defects in the proceedings before the first Committee were cured by the proceedings before the Senate Committee. The Ontario Court of Appeal disagreed and held that an oral hearing was required to satisfy the demands of procedural fairness where the decision turned on credibility and where the consequences to the applicant were serious.

Facts: Nicholson was fired from his job as police officer while he was still on probation as a new employee (less than 18 months).

- The relevant legislation provided that police officers are entitled to a hearing before being dismissed, unless they are still in their 18-month probation period.

Legal Issues: Distinction between judicial and administrative

functions should no longer determine procedural claims Duty to act fairly could apply to purely administrate

functions as well. Decision: Nicholson was entitled to an opportunity

(whether orally or in writing) to respond to criticisms of his performance before he was dismissed.

There may be some cases where the distinction between judicial, quasi-judicial and administrative functions will matter.

Case provides a list of non-exhaustive factors that if answered in the positive, indicate a judicial or quasi-judicial function. Example of the factors include:

Is the issue at stake one that requires the application of specific rules to a particular case (as opposed to one of broader social or economic policy)?

Does the decision affect the rights and obligations of the applicant?

Facts: OHC owned some apt-buildings, managed by Meridiean. They

were leased at below-market rents to persons on low incomes.

Webb and children were tenants since 1970. In 1973 Meridian recommended termination of lease bc of complaints against W’s kids. OHC approved & brought application to terminate her lease.

Webb appealed the approved application for termination of her lease.

 

Legal Issues Was OHC, in its administrative actions, required to treat Webb

“fairly”? YES

Did OHC treat Webb fairly? YES (Webb loses)

What happens when gov’t agent tries to limit or retract a right?

She was aware of the problems and she had an opportunity to respond to those problems—this satisfied the DOF owed to her.

When a person applies for housing, the person is not entitled to procedural fairness because it is not a right, rather it is a privilege/benefit.—moreover, the OHC is not adjudicative at all

But when the government bestows this benefit on a person, then they are entitled to procedural fairness rights (to a limited degree) when the government tries to retract the privilege.

If a benefit is retracted, then there is more importance attached than a person applying for that same.

A recent re-examination of the elements of procedural fairness in the administrative law context was provided by the Supreme Court in Baker: The values underlying the duty of procedural

fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.

1) The nature of the decision o Judicial type of decision and process =

greater procedural protectionso Closer to a legislative decision = fewer

procedural protections

2) The nature of the statutory scheme and the statutory provisions under which the administrative body operates

3) The importance of the decision to the individual or people affected

4) Did the challenger have legitimate expectations regarding procedure based promises, practices or representations of the decision-maker?

o if a LE is found to exist then this will affect the content of the Duty of Fairness

o LE is based on conduct of parties and is particular to the circumstances

**Legislative action does NOT give rise to an obligation of procedural fairness. (knight)**

**Procedural fairness claims will not generally apply to broad, policy-based decision-making, which affects a range of constituencies.**

However, note that courts have had difficulty with the drawing the line between broad policy-based decisions and more narrow individualized decisions

Canadian Association of Regulated Importers v. Canada

Facts: Minister changed the allocation of import quota for hatching eggs and chickens. The importers said that they should have been given notice of this change and the opportunity to respond…

Trial Court: NOT a legislative decision = procedural fairness obligations

Court of Appeal: Changing the quota policy was a legislative or policy decision = no procedural fairness obligations exist.

**High standard of justice is required when the right to continue in one’s profession or employment is at stake. (Knight)**

**Those applying for licenses and various other forms of government benefits are often not entitled to procedural fairness. However, once the benefit has been granted and is at risk of being taken away, then procedural fairness rights may apply. (Re Webb)**

**The relevant inquiry is focused on the individual circumstances of the case at hand (Baker)**

Once it has been determined that a duty of procedural fairness is owed, it then needs to be determined what the duty entails

Court take a very context-sensitive approach to the question of whether procedural fairness is required…

The closer a decision-making function is to the legislative end of the spectrum, the fewer the procedural fairness obligations will be. (Nicholson)

Courts recognize that certain interests require greater procedural protections than others.

For example:◦ Nicholson: probationary police officer = minimal

procedural rights (due to his limited status)◦ Julius Kane: tenured professor = higher level of

procedural protection◦ Baker = resisting removal from Canada = more

than minimal procedural rights.

Courts recognize that some amount of discretion is often required.

For example:◦ The law doesn’t provide the answer◦ When there are multiple possible choices and

outcomes set out in the legislation◦ When the public interest is at stake◦ When the enabling statute allows the decision

maker to make a decision consistent with fairness

Courts have developed a rule that discretion must be exercised fairly and reasonably.

Options should not be looked at two broadly or narrowly

The purpose of the statute must be considered

Decision makers must consider only relevant factors, they may not consider irrelevant factors

Similar cases should be considered Discretion must be exercised in good faith

Courts have said that discretion should not be fettered

An official with power to exercise discretion cannot refuse the exercise that discretion

By administrative agencies having policy guidelines, uncertainty is minimized without fettering discretion

A public official (other than the Minister) delegated to make the decision cannot delegate that power to someone else

Regulations are a type of delegated legislation, made by the cabinet

Permitted powers of Regulations must be set out in its parent statute

Regulations cannot be inconsistent with the statute

Regulations should not set out “new policy”, but should be setting out details to the policy established by statute

There is no doubt that high standards of fairness may present problems for efficiency of government.

Regardless, procedural fairness isn’t going anywhere. There will always be a demand for high levels of fairness where individuals’ rights and interests are affected. Further, the scope of procedural fairness will continue to grow as it remains as a powerful tool in challenging the decisions of administrative bodies, particularly as procedural fairness is not subject to curial deference.