This document discusses procedural fairness in the context of administrative law. It covers several key topics: 1) Sources of procedural fairness obligations, including the Charter, Canadian Bill of Rights, common law, and statutes. 2) Key Supreme Court of Canada cases that have shaped the modern understanding of procedural fairness, including Nicholson, Baker, and Knight. 3) Factors considered in determining whether and to what extent procedural fairness applies in a given case, such as the nature of the decision, statutory context, and importance to individuals affected. 4) Examples of specific procedural protections, such as the right to a hearing, right to provide oral submissions, and right to respond to allegations.

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

2. 
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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

3. 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.

4. 
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

5. 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.

6. 
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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;

7. 
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.

8. 
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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.

9. 
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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.

10. 
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.

11. (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.

12. (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.

13. (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.

14. 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.
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15. 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
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This Act is far less detailed than Ontario’s Act.

16. 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.

17. 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.

18. 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?

19. 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 quasijudicial 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.

20. Modern Canadian Administrative Law

Has returned to the functional analysis that characterized Cooper.
Key cases:
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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

21. 
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.

22. 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.

23. 
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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 quasijudicial 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?

24. 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)


25. 
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.
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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.

26. 
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.

27. 1)
The nature of the decision
o
o
1)
Judicial type of decision and process = greater
procedural protections
Closer to a legislative decision = fewer procedural
protections
The nature of the statutory scheme and
the statutory provisions under which the
administrative body operates

28. 3)
4)
The importance of the decision to the
individual or people affected
Did the challenger have legitimate
expectations regarding procedure based
promises, practices or representations of
the decision-maker?
o
o
if a LE is found to exist then this will affect the content of
the Duty of Fairness
LE is based on conduct of parties and is particular to the
circumstances

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

30. **Procedural fairness claims will not generally apply to broad, policybased 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.

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

32. **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)**

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

34. 
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…

35. 
The closer a decision-making function is to the
legislative end of the spectrum, the fewer the
procedural fairness obligations will be. (Nicholson)

36. 
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.

37. 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

38. 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


39. 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
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40. 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


41. 
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.
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