Procedural Fairness

1. Administrative Law
Chapter 8
The Reach of Procedural
Fairness Rights Minh Tran
April 2009

2. Administrative Law
Concerned with:
 Regulation of governmental power in the
state's relations with individuals
 Exercise of statutorily authorized powers by
designated actors
 Law governing the implementation of public
programs, especially at the point of delivery
(where they have most immediate impact
on people)

3. Administrative Law
Not concerned with:
 Regulations used to implement particular
programs or policies; i.e., substantive law.

4. Scope of Administrative Law:
 Municipalities, Human Rights, Immigration
 Regulation and licensing of economic activities and
industries, e.g. natural resources, telecommunications,
liquor…
 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

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

6. Sources of Procedural Claims
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.

7. Legislation that Specifically
Addresses Procedural Rights
 Most provinces do NOT have any specific
legislation in place related to procedures
to be followed in administrative decision
making.
 The exception is Alberta, Quebec and
Ontario.

8. Alberta
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.

9. Quebec
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.

10. Ontario
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.

11. Ontario SPPA Cont.
Where Act does not apply
Section 3(2): This Act does not apply to a proceeding,
(a) before the Assembly or any committee of the Assembly;
(b) in or before,
(i) Court of Appeal; (ii) Superior Court of Justice; (iii) Ontario Court of Justice,
(iv) Family Court; (v) Small Claims Court, or (vi) a justice of the peace;
(c) to which the Rules of Civil Procedure apply;
(d) before an arbitrator to which the Arbitrations Act or the Labour Relations Act
applies;
(e) at a coroner’s inquest;
(f) of a commission appointed under the Public Inquiries Act;
(g) of one or more persons required to make an investigation and to make a report,
with or without recommendations, where the report is for the information or advice of
the person to whom it is made and does not in any way legally bind or limit that
person in any decision he or she may have power to make; or
(h) of a tribunal empowered to make regulations, rules or by-laws in so far as its
power to make regulations, rules or by-laws is concerned.
Waiver
Section 4.(1): Any procedural requirement of this Act, or of another Act or a regulation
that applies to a proceeding, may be waived with the consent of the parties and the
tribunal.

12. Procedures in the Relevant Legislation
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?

13. The Common Law
Historical 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.

14. The Common Law
Modern Canadian Administrative Law
 Has returned to the functional base that characterized Cooper.
Key cases:
 Nicholson
 Minister of National Revenue v. Coppers & Lybrand
 Knight
 Canadian Association of Regulated Importers v. Canada
 Re Webb
 Baker

15. Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police
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 Principles:
 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.

16. Minister of National Revenue v.
Coppers & Lybrand
 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?

17. Other Important Principles
Emerging from Case Law:
**Legislative action does NOT give rise
to an obligation of procedural
fairness. (knight)**

18. Other Important Principles Emerging
from Case Law:
**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 quota policy was a legislative or policy decision = no procedural
fairness obligations exist
Take Away Point: There is still a great deal of uncertainty and clarification from the
Supreme Court of Canada is needed!

19. Other Important Principles Emerging
from Case Law:
**High standard of justice is required when
the right to continue in one’s profession or
employment is at stake. (Knight)**

20. Other Important Principles Emerging
from Case Law:
**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 benefits may
apply. (Re Webb)**

21. Other Important Principles Emerging
from Case Law:
**The relevant inquiry is focused on the
individual circumstances of the case at
hand (Baker)**

22. The Content of Procedural
Fairness
 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…

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

24. Content of Duty
 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.

25. Non-Exhaustive List of Factors
from Baker
1) The nature of the decision
o Judicial type of decision and process = greater
procedural protections
o 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

26. Non-Exhaustive List of Factors
from Baker
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 DOF
o LE is based on conduct of parties and is particular to
the circs

27. The END!!!
Thank you