Extracts: Procedural Fairness - Baker | shannonsalter | May 06, 2015

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Extracts: Procedural Fairness - Baker

Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, [1979] 1 S.C.R. 311. 

Section 27 of Regulation 680 under the Ontario Police Act stated:

27.          No chief of police, constable or other police officer is subject to any penalty under this Part except after a hearing and final disposition of a charge … but nothing herein affects the authority of a board or council

(b)        to dispense with the services of any constable within eighteen months of his becoming a constable…

Laskin CJ stated at page 321 and 322:

In so far as the Ontario Court of Appeal based its conclusion on the expressio unius rule of construction, it has carried the maxim much too far. This Court examined its application in L’Alliance des professeurs catholiques de Montreal v. Labour Relations Board of Quebec, and rejected an argument for its application to deny notice and hearing in that case. Rinfret C.J.C. referred, inter alia, to the judgment of Farwell L.J. in Re Lowe v. Darling & Son, at p. 785 where mention is made of Colquhoun v. Brooks and of the statement of Lopes L.J., at p. 65, that “the maxim ought not to be applied when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice”. This statement commends itself to me and I think it relevant to the present case where we are dealing with the holder of a public office, engaged in duties connected with the maintenance of public order and preservation of the peace, important values in any society.

And at pages 324-5

In short, I am of the opinion that although the appellant clearly cannot claim the procedural protections afforded to a constable with more than eighteen months’ service, he cannot be denied any protection. He should be treated “fairly” not arbitrarily. I accept, therefore, for present purposes and as a common law principle what Megarry J. accepted in Bates v. Lord Hailsham, at p. 1378, “that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness”.

The emergence of a notion of fairness involving something less than the procedural protection of traditional natural justice has been commented on in de Smith, Judicial Review of Administrative Action, supra, at p. 208, as follows:

That the donee of a power must “act fairly” is a long-settled principle governing the exercise of discretion, though its meaning is inevitably imprecise. Since 1967 the concept of a duty to act fairly has often been used by judges to denote an implied procedural obligation. In general it means a duty to observe the rudiments of natural justice for a limited purpose in the exercise of functions that are not analytically judicial but administrative. Given the flexibility of natural justice, it is not strictly necessary to use the term “duty to act fairly” at all. But the term has a marginal value because of (i) the frequent re-emergence of the idea that a duty to observe natural justice is not to be imported into the discharge of “administrative” functions and (ii) a tendency to assume that a duty to “act judicially” in accordance with natural justice means a duty to act like a judge in a court of law. It may therefore be less confusing to say that an immigration officer or a company inspector or a magistrate condemning food as unfit for human consumption is obliged to act fairly rather than obliged to act judicially (or to observe natural justice, which means the same thing). However, close analysis of the relevant judgments is apt to generate its own confusion; for sometimes one judge will differentiate a duty to act fairly from a duty to act judicially and another will assimilate them, both judges being in full agreement as to the scope of the procedural duty cast on the competent authority. [Footnotes omitted]

What rightly lies behind this emergence is the realization that the classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult, to say the least; and to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected, regardless of the classification of the function in question: see, generally, Mullan, Fairness: The New Natural Justice (1975), 25 Univ. of Tor. L.J. 281.

 

Attorney General of Canada v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735.

Section 64 of the National Transportation Act, stated:

64. (1) The Governor in Council may at any time, in his discretion, either upon petition of any party, person or company interested, or of his own motion, and with-out any petition or application, vary or rescind any order, decision, rule or regulation of the Commission, whether such order or decision is made inter partes or otherwise, and whether such regulation is general or limited in its scope and application; and any order that the Governor in Council may make with respect thereto is binding upon the Commission and upon all parties.

 

The Court concluded at page 750 that while:

…the existence of such a duty no longer depends on classifying the power involved as "administrative" or "quasi-judicial", it is still necessary to examine closely the statutory provi­sion in question in order to discern whether it makes the decision-maker subject to any rules of procedural fairness.

Similarly, at page 755, the court stated:

While it is true that a duty to observe proce­dural fairness, as expressed in the maxim audi alteram partem, need not be express (Alliance des Professeurs Catholiques de Montréal v. Commis­sion des Relations Ouvrières de la Province de Québec), it will not be implied in every case. It is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle to apply…

Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at para 64:

 

Parliamentary government would be paralyzed if the doctrine of legitimate expectations could be applied to prevent the government from introducing legislation in Parliament.  Such expectations might be created by statements during an election campaign.  The business of government would be stalled while the application of the doctrine and its effect was argued out in the courts.  Furthermore, it is fundamental to our system of government that a government is not bound by the undertakings of its predecessor.  The doctrine of legitimate expectations would place a fetter on this essential feature of democracy.  I adopt the words of King C.J. of the Supreme Court of South Australia, in banco, in West Lakes Ltd. v. South Australia (1980), 25 S.A.S.R. 389, at p. 390, a case strikingly similar to this one....

Cardinal v. Kent Institution [1985] 2 S.C.R. 643.

Penitentiary Service Regulations, C.R.C. 1978, c. 1251. Section 40 reads as follows:

 

40. (1) Where the institutional head is satisfied that

 

(a) for the maintenance of good order and discipline in the institution, or

 

(b) in the best interests of an inmate

 

it is necessary or desirable that the inmate should be kept from associating with other inmates, he may order the inmate to be dissociated accordingly, but the case of every inmate so dissociated shall be considered, not less than once each month, by the Classification Board for the purpose of recommending to the institutional head whether or not the inmate should return to association with other inmates.

At paragraph 14, Le Dain J. for the Court stated:

There can be no doubt, as was held by McEachern C.J.S.C. and the Court of Appeal, that the Director was under a duty of procedural fairness in exercising the authority conferred by s. 40 of the Regulations with respect to administrative dissociation or segregation. This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual: : Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.

The SCC also held at paragraph 23:

There is the question, suggested by the reasons for judgment of Nemetz C.J.B.C., whether the breach of the duty to act fairly in this case should be held not to have resulted in an excess or loss of jurisdiction and to have made the continuing segregation of the appellants unlawful because, having regard to the merits of the substantive issue, it did not result in a substantial injustice, or to use the words of Nemetz C.J.B.C., was not of "sufficient substance". Both Nemetz C.J.B.C. and Macdonald J.A. considered the substantive issue of whether the appellants should be released from segregation and appeared to conclude that the Director's reasons for refusing to follow the recommendation of the Segregation Review Board were reasonable and fair. It is a possible implication of their approach that they were of the view that given the Director's reasons for refusing to follow the recommendation of the Board a hearing by him of the appellants would not serve any useful purpose. Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of "sufficient substance" unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

 

Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653.

 

 

L’Heureux-Dube J. for the majority wrote at paragraph 46:

 

3. The Content of the Duty to Act Fairly

 

Like the principles of natural justice, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.  In Nicholson, supra, at pp. 326-27, Laskin C.J. adopts the following passage from the decision of the Privy Council in Furnell v. Whangarei High Schools Board, [1973] A.C. 660, a New Zealand appeal where Lord Morris of Borth-y-Gest, writing for the majority, held at p. 679:

 

                    Natural justice is but fairness writ large and juridically.  It has been described as 'fair play in action'.  Nor is it a leaven to be associated only with judicial or quasi-judicial occasions.  But as was pointed out by Tucker L.J. in Russel v. Duke of Norfolk [1949] 1 All. E.R. 109, 118, the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration.  [Emphasis added.]

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817

 

Section 114 of the Immigration Act, stated:

 

114. . . .

 

(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

 

The SCC developed five factors for calibrating the content of procedural fairness. 

 

(1)   the nature of the decision being made and process followed in making it (at para 23):

 

The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. 

 

 

(2)   the nature of the statutory scheme and the terms of the statute pursuant to which the body operates (para 24):

 

The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made.  Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted

 

(3)   the importance of the decision to the individual or individuals affected (para 25):

 

The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.  This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113:

 

A high standard of justice is required when the right to continue in one’s profession or employment is at stake. . . .  A disciplinary suspension can have grave and permanent consequences upon a professional career.

 

(4)   the legitimate expectations of the person challenging the decision (para 26):

 

Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p.  557.  As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision.  If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness…. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain.  This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.

 

(5)   the choices of procedure made by the agency itself (para 27):

 

…the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances:  Brown and Evans, supra, at pp. 7-66 to 7-70.  While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282 

 

This list is not exhaustive.

 

 

In addition, the court stated at paragraph 43:

 

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision.  The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required.  This requirement has been developing in the common law elsewhere.  The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary.  The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided.  It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

 

 

Vancouver Island Community Forest Action Network v. Langford (City), 2010 BCSC 1357 at para 61:

 

[I]n general, members of the public are entitled to receive in advance of the public hearing all documents put before council. Whether the public is entitled to more expansive or restricted access depends on several factors, including the following:

 

• Does the bylaw create a conflict of interest for the municipality?

 

• Does the rezoning significantly affect only one or two people, or is it a broad legislative decision?

 

• Do the disputed records add anything to the debate?

 

• Does the contemplated rezoning result in a significant change in land use from the previous zoning?

 

• Do the disputed records pertain to the concerns of the petitioner?

 

• Was the public hearing mandatory?

 

• Was the petitioner already aware of the contents of the records?

 

• Are the documents relevant to zoning, or are they relevant to site-specific development or other concerns?

 

• If the impugned document is an agreement, was that agreement still subject to negotiation?

 

 

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May 08, 2015

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shannonsalter

Adjunct Professor

University of British Columbia Faculty of Law

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