CANADIAN

ADMINISTRATIVE LAW
Module 3

Liz Nastasi & Trevor Guy

 Review
• The core function of judicial review of an administrative
decision or action is to examine how and why the courts
decide to intervene:

1. Procedural fairness: First, is this an issue courts should review

and, if so, did the administrative decision-maker use the proper
procedures in reaching a decision or taking action? 

2. Substantive review: Regarding the decision itself, did the

administrative decision-maker make an error of the kind or
magnitude that the court is willing to get involved in?

3. Remedies and the legitimacy of judicial review: If there are

procedural or substantive defects in the decision, should the court
intervene and, if so, how?
 Intro to procedural fairness
• Recall that people are affected by a wide variety of decisions made on a
daily basis by public authorities (from Cabinet ministers to bureaucrats,
tribunals, agencies, boards, commissions, and other public authorities).

• The one thing these decisions have in common is that, in general, they
must be made pursuant to a fair procedure.

• A party to an administrative action may decide to impugn that decision by

challenging the decision-maker’s jurisdiction, its procedure, its impartiality,
its exercise of discretion or the substance of its final decision.

• The most common means to attack an adverse administrative decision is to

challenge the procedure – the process by which the decision was made.

• The duty of fairness is concerned with ensuring that public authorities use
fair procedures in making decisions.
 Intro to procedural fairness
• Its important to remember that a successful application for judicial
review on procedural fairness grounds may result in an order
quashing the decision but then what? It may get sent back to the
tribunal to be made anew, but the decision-maker may still reach the
same decision.

• The duty of fairness is not concerned with the fairness of the actual
decisions or the outcome of particular decisions, and does not
require that the decisions of public authorities be considered “fair”.

• ITS NOT ABOUT THE OUTCOME, but about the procedures

followed by the tribunal in coming to the decision.
 Intro to procedural fairness

• “Fairness” has become a short form for procedural

fairness, but it is important not to lose sight of the
essentially procedural character of the duty.

• In general, the duty of fairness requires two things, both

of which are modern restatements of natural justice
protections:

(1) the right to be heard, and

(2) the right to an independent and impartial hearing.
 Intro to procedural fairness
• The development of a “duty of fairness” is one of the great achievements of modern
administrative law.

• It promotes a better-informed decision-making process, leading to better public policy

outcomes, and helps to ensure that individuals are treated with respect in the
administrative process.

• The duty itself is context-specific: its content is articulated having regard to the
circumstances surrounding the relevant decision

• When a decision is being challenged at JR and the allegation is a breach of duty of

fairness, then 2 questions must be considered:

1. Has the threshold for review been met – is a duty of fairness owed?

If yes…

2. What does the duty involve in the relevant circumstances –What is the
content?
Intro to procedural fairness

• STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

• The threshold test – is a duty of fairness owed?

• Are there any limits?

• STEP 2 – DETERMINE THE CONTENT OF THE DUTY OF FAIRNESS

• What elements of fairness are required in the particular case?

• WHERE TO START?

• Check the sources

• Triggers / thresholds

• PROCESS MAP
 Exam Prep and Group Work
• REVIEW the “SALLY Scenario”

• What possible breaches of procedural fairness could

be argued by Sally?

• Which, if any, are likely to succeed?

• Discuss the reasons for your conclusions. 

• HINT – Use the Process Map to guide you through the

answer
Sources & Triggers of Procedural Fairness

• SOURCES

Where does the obligation for procedural fairness come from?

• statute, general procedural statute, common law, Charter / Bill of
Rights

• TRIGGERS or THRESHOLDS

What requirements need to be met before procedural fairness is

owed?
• The specific trigger or threshold will depend on the source
SOURCES & Triggers of Procedural Fairness
SOURCE TRIGGER / THRESHOLD
Statute / Regs The legislation will set out the trigger or threshold for PF
General Procedural Statute The legislation will set out the trigger or threshold for PF
Common Law -> Nicholson - public authority making an administrative
decision (not legislative) which affects the rights, privileges or
interests of an individual (no longer a quasi judicial req’t)

-> Knight – 3-prong test (nature of decision, relationship,

effect)
Charter Section 7 - Decisions that go to the life, liberty and security of
the person
-> Singh – 3 questions
Bill of Rights Sections 1(a) and 2(e)
Legitimate Expectation A public authority makes a promise to follow a certain
procedure, in respect of an interested person – and they
relied and acted upon that promise

**SUBJECT TO LIMITATIONS AND EXCEPTIONS

 Sources of Procedural Fairness
• The obligation that fair procedures are followed in administrative decision-making (including
content), may be found in a number of sources:

1. The Enabling Statute and Subordinate Legislation

2. A General Procedural Statute (e.g., SPPA)

3. The Common Law - where the enabling statute is silent or only provides for a minimal
procedure or expressly denies certain procedural safeguards

4. Constitutional and Quasi-Constitutional Sources – The Charter and the Canadian

Bill of Rights

5. Legitimate Expectations

NOTE: THE CONTENT OF THE DUTY IS FLEXIBLE AND CONTEXT-SPECIFIC

 Sources of Procedural Fairness
1. Enabling statute and subordinate legislation
• The enabling statute may prescribe detailed procedural requirements that
provide a complete procedural code.

• In determining whether an affected individual is entitled to procedural

fairness, the first place to look is the enabling statute.

• If the enabling statute provides detailed procedures, this suggests to the

courts that the legislature intended to limit or oust common law
procedural protection.

• For example: the Canadian Human Rights Act. In addition to prescribing

specific procedures in the enabling statute, the legislature may statutorily
delegate to the minister, or to a board or tribunal the power to enact
regulations or rules which set out procedural requirements that the
agency must follow - the Canadian Human Rights Rules of Procedure.
 Sources of Procedural Fairness
1. Enabling statute and subordinate legislation

Tribunal Rules, Policies, and Guidelines:
• Statutes, regulations, and statutory procedural codes are the obvious sources
of a tribunal’s authority. These are “rules” that have been imposed on
administrative tribunals from the outside—that is, the common law by courts
and statutes and regulations by the legislature and the executive, respectively.

• There may also be rules created by tribunals themselves. Even the most
informal of tribunals has likely engaged in rule-making in a number of areas.

• Tribunal rules typically deal with basic topics: the circumstances in which the
tribunal will grant an adjournment, service of documents, motions, and
prerequisites for reconsideration of decisions.

• Tribunals also have various other sources of internal law, set out in policies,
directives, guidelines, precedents, procedural orders, or notices of hearing.
Often, such materials may be found only at the tribunal’s offices.
 Sources of Procedural Fairness

• What if the enabling statute does NOT set

out a detailed procedural code ?

• Does that mean that no fairness is required?

• No … move on to the next source and

determine whether you can supplement the
enabling statute
Sources of Procedural Fairness

Common Law

General
procedural
Enabling Quasi

Statute
statute Constitutional

Legitimate
Expectation
 Sources of Procedural Fairness
2. General procedural statutes

• Some provinces have statutory procedural codes that establish

procedural requirements for administrative proceedings:

• Alberta’s procedural code (the Alberta Administrative Procedures

and Jurisdiction Act) does not contain a provision that provides for
its general applicability. Instead, the tribunals that are subject to it
are designated by regulation. Its provisions are not comprehensive.
• [Link]
h_by=link

• In contrast, Quebec’s procedural code (the Quebec Administrative

Justice Act) is detailed. There are different procedural requirements
for “adjudicative” and “administrative” tribunals.
• [Link]
Sources of Procedural Fairness
2. General procedural statutes

• British Columbia’s procedural code (the B.C. Administrative

Tribunal Act) empowers tribunals to make their own rules. There
are few procedural requirements prescribed by the ATA. Reference
must be had to the tribunal’s enabling statute or statutes to
ascertain which, if any, of the procedural provisions of the ATA
apply.
• [Link]

• Ontario’s procedural code (Statutory Powers and Procedures Act)

also recognizes the differences among administrative tribunals. The
SPPA applies to the exercise of a “statutory power of decision”
where a hearing is required by or under a statute or “otherwise by
law.”
• [Link]
[Link]
Sources of Procedural Fairness
2. General procedural statutes Enabling
SPPA
Statute

How do these general procedural statutes interact with the enabling

legislation?

• In addition to minimum standards established by a general procedural

statute, like the SPPA, it is not unusual for the enabling legislation or
regulations to particularize further procedural duties, like notice
requirements and rights to make submissions for particular tribunals.

• It is very important to ascertain which procedures apply, those

mandated under the enabling statute, or those under the general
procedure code.

• The application of a general procedural code may be modified or limited

by the public authority’s enabling statute.
Sources of Procedural Fairness
2. General procedural statutes
Statutory Powers Procedure Act, RSO 1990, c S.22 
 
• Does the SPPA apply to the following: 

• Proceedings before the Divisional Court?   

• A tribunal that conducts investigations?  
• A hearing before Human Rights Tribunal of Ontario?  
• A hearing before the Canadian Human Rights Tribunal?  

 
• What section of the SPPA allows Tribunals to make their own rules? 

 
• What section of the SPPA can an adjudicator refer to control their proceedings?  
 
 
• What are the Notice requirements for written hearings?  
 
 
• What if there is a conflict between the SPPA and a requirement set out in the enabling
statute?  
 Sources of Procedural Fairness
3. The common law
• From ‘Natural Justice’ to Fairness:

• The content of common law principles of procedural fairness flow from two principles of
natural justice. A person affected by a public authority’s decision is entitled to:

• (1) the right to be heard (audi alteram partem = hear the other side)

and

• (2) the right to an impartial and independent hearing or decision maker (nemo
judex in sua propria causa debet esse = no one should be a judge in their own
case)

• The “duty of fairness” came to replace natural justice as the organizing principle in
administrative law and, as a result, there is no longer any reason to differentiate between
the two concepts.
 Sources of Procedural Fairness
3. The common law

• The “threshold question,” is about DETERMINING WHETHER FAIRNESS IS

REQUIRED.

• The common law threshold question is best stated as follows: “Is this the kind
of decision that should attract some kind of procedural right?”

• At this stage, the court is not determining what those rights would encompass,
but is only considering the preliminary question of whether there should be any
entitlement to procedural fairness at all.

• Today, subject to some exceptions, it is well established that the duty of

fairness applies to the decisions of public authorities—for example, executive
actors, tribunals, and officials acting pursuant to statutory authority—that
affect an individual’s rights, privileges, or interests. (Cardinal v. Director of
Kent Institution, [1985] 2 SCR 643)

• Historically - How a decision was characterized was important to whether

there was a duty to be fair.
 Sources of Procedural Fairness
3. The common law
Historically the courts differentiated between judicial vs. administrative
decisions

• Decision makers that exercised judicial or quasi-judicial functions

were required to comply with the rules of natural justice but those
exercising purely administrative functions were not.

• This approach changed with the decision in Nicholson v. Haldimand-

Norfolk Regional Police Commissioners, [1979] 1 SCR 311, a case that
dealt with the dismissal of a probationary police officer - and today, it
applies to a much broader spectrum of decisions. The court found that
Mr. Nicholson had a common law right to be treated fairly.
 Sources of Procedural Fairness
Enabling Common
Statute Law

What is the relationship between statutory procedural codes and the common law?

• It is important to recognize that clear legislative restrictions (in the general or enabling
statute) will oust the procedural protections that would typically be afforded at common
law.

• In other words, if a tribunal’s enabling statute expressly limits a right to a certain

procedure, then the common law cannot override express statutory language. BUT keep
in mind that the courts tend to interpret provisions that limiting rights very narrowly.

• Where an enabling statute expressly limits rights/procedure, only the Charter or

constitutional rights can override legislative restrictions. (Example: statute says hearings
only in writing not in person.)
Sources of Procedural Fairness
4. Constitutional and Quasi-Constitutional

Canadian Bill of Rights and the Canadian Charter of Rights

and Freedoms

• Two other important sources of procedural fairness in the administrative

law context are constitutional and quasi-constitutional in nature:

Canadian Bill of Rights Canadian Charter of Rights

and Freedoms

• Only applies to federal • Applies to federal and

decision makers. provincial governments
• Relevant sections for admin • Relevant section - Section
law – sections 1(a) and 7 - Right to: life, liberty,
2(e): security of person
Sources of Procedural Fairness
4. Constitutional and Quasi-Constitutional
Charter - part of the Constitution - guarantees basic rights and freedoms

• Can impose fairness requirements on agencies by:

1. Striking down statutory provisions that weaken fairness protections; or

2. Courts can read into statute requirements to follow procedures that give
effect to rights and freedoms set out in the Charter

• Applies to federal and provincial governments.

• Whether the Charter applies to a specific body will depend on

1. The extent of government control over the body;

2. The extent to which the body carries out functions that are
governmental in nature.
Sources of Procedural Fairness
5. Legitimate Expectations

•In certain circumstances, certain fairness procedures will be required

because of expectations generated in a person affected by a
decision.

•Legitimate expectation of procedural fairness applies:

“When a public authority had promised to follow a certain procedure,

it is in the interest of good administration that it should act fairly and
should implement its promise, so long as implementation does not
interfere with its statutory duty.” In this way the courts have found
procedural fairness through a promise by an ADM. There are
requirements for what constitutes a legitimate expectation. Old St.
Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170
Sources of Procedural Fairness
5. Legitimate Expectations

Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36

• Agraira, a citizen of Libya, had resided in Canada since 1997. He was found to be
inadmissible on security grounds in 2002 based on his membership in the Libyan National
Salvation Front, a terrorist organization according to Citizenship and Immigration Canada.

• Agraira argued that the Minister’s decision failed to meet his legitimate expectations
that certain procedures would be followed and certain factors would be taken into
account in determining his application for relief.

• SCC found that the Minister made the decision in accordance with the Guidelines which
were publicly available, and constituted a relatively comprehensive procedural code for
dealing with applications for ministerial relief.  Thus, A could reasonably expect that his
application would be dealt with in accordance with the process set out in them. 

• See paras. 93-7 here for the test:

[Link]

• See also the SCC’s comments in Mavi, quoted later in these slides.
Sources of Procedural Fairness
5. Legitimate Expectations

• If there is a change in the Act or the Regulations, the doctrine of

legitimate expectations cannot be used to attack transitional provisions.

• This issue arose in the case of Dela Fuente v. Canada (Minister of

Citizenship and Immigration), 2006 FCA 186.  Dela Fuente had applied
under the old immigration act but suddenly found himself subjected to
the new one, resulting in him being ineligible. Although he had a
legitimate expectation when he submitted his application that the law at
the time would apply, this expectation did not trump the clearly defined
transition rules of the new Act.
Sources of Procedural Fairness
5. Legitimate Expectations

Read on your own:

• Mount Sinai Hospital Centre v. Quebec (Minister of Health

and Social Services), [2001] 2 S.C.R. 281

• Is this case a possible way that legitimate expectations as to

substantive outcomes can be enforced? - Minister could not
move away from an earlier "decision“.

• The expectations must not conflict with the public authority’s

statutory remit. Although the doctrine of legitimate
expectations is limited to procedural relief, it must be
acknowledged that in some cases it is difficult to distinguish
the procedural from the substantive.
Sources & TRIGGERS of procedural fairness
SOURCE TRIGGER / THRESHOLD
Statute / Regs The legislation will set out the trigger or threshold for PF
General Procedural Statute The legislation will set out the trigger or threshold for PF
Common Law -> Nicholson - public authority making an administrative
decision - (no longer a quasi judicial req’t)
-> Cardinal - which affects the rights, privileges or interests of
an individual
-> Knight – 3 prong test (nature of decision, relationship,
effect)
Charter Section 7 - Decisions that go to the life, liberty and security of
the person
-> Singh – 3 questions
Bill of Rights Sections 1(a) and 2(e)
Legitimate Expectation A public authority makes a promise to follow a certain
procedure, in respect of an interested person – and they
relied and acted upon that promise

**SUBJECT TO LIMITATIONS AND EXCEPTIONS

Procedural Fairness - the threshold question

• STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

 The threshold question: Is this the kind of decision that

should attract some kind of procedural right?

• At this stage, the court is not asking what those rights would
encompass, but only the preliminary question of whether there
should be any entitlement to procedural fairness at all.

• The court is asking whether it should review the administrative

decision-maker’s procedures or whether it is more appropriate to
conclude that whatever the decision-maker decides to do by way of
procedure is sufficient.
Procedural Fairness – the threshold question
• The DMs enabling statute is the starting point for determining what
procedural protections are available. The statute, regs and rules
should also set out what trigger or threshold is required for the
procedure to apply.

• If there are gaps, look to the general procedural statute

• If there are still gaps, the common law or constitutional sources

can supplement the procedures set out in the enabling statute, will
depend on whether the thresholds for their application has been met.

• The common law test - subject to some exceptions, it is well

established that the duty of fairness applies to the decisions of public
authorities and officials acting pursuant to statutory authority —that
affect an individual’s rights, privileges, or interests.
 Procedural Fairness – the common law threshold
Historically

• Unless an agency was exercising a judicial or quasi-judicial function, there was no right of
natural justice (natural justice = fairness).

• “Judicial” and “quasi-judicial” decisions were required to be made in accordance with the rules of
natural justice – BUT … legislative or administrative decisions did not give rise to that same right

• Court review proceedings focused on the nature of the power exercised rather than the impact
of its exercise and courts had a lot of difficulty defining actions that were judicial/quasi-judicial
vs. legislative/administrative.
• judicial/quasi dealt with ‘rights’ determined by objective standards
• legislative/admin decisions dealt more with ‘privileges and interests’

• To obtain procedural protection, an applicant had to convince a court that a particular decision
could properly be characterized as judicial or quasi-judicial.
• A successful applicant would then receive the full range of natural justice protection.
• An unsuccessful applicant would receive no procedural protection at all (an all or nothing
approach)
Procedural Fairness – the common law threshold
 
Summary of Some Key Cases

• Let’s take a look at some of the key cases that transformed the application of procedural fairness
to administrative decisions. We’ll begin with Nicholson, the case in which the SCC first
abandoned the all-or-nothing approach to applying a duty of fairness to administrative decisions.

Nicholson

• The case concerned the summary dismissal of a probationary police constable some 15 months
into his term of service. He was not given a reason for his dismissal, nor was he given notice or
allowed to make any representations prior to his dismissal. Regulations made under provincial
legislation provided that police officers could not be penalized without a hearing and right of
appeal, but added that the Board of Commissioners of Police had authority “to dispense with the
services of any constable within eighteen months of his becoming a constable.”

• So, the statute was clear: no hearing.

• Under the traditional common-law approach, that would have been the end of the matter.
Because the decision or dismissal did not meet the criteria of a “judicial or quasi-judicial”
decision, there was no natural justice protection.

• It was an administrative matter, for which the all-or-nothing approach provided no protection.
Procedural Fairness – the common law threshold
Nicholson

• In a 5–4 majority decision, the Supreme Court held for the first time that a general
duty of “procedural fairness” applies to administrative decisions.

• Although Nicholson, due to the length of his service, could not claim the procedural
protection set out in the regulations—namely, those with 18 months of service had
an oral hearing with a right of appeal—according to Chief Justice Laskin, writing for
the majority, it did not follow that he was therefore entitled to no protection
whatsoever.

• Nicholson was entitled to be treated fairly, not arbitrarily; he was entitled to be told
why he was being dismissed and given an opportunity to make submissions—orally
or in writing, at the board’s discretion—before he was dismissed.

• The beginning of the common law right of individuals to be treated fairly by

administrative decision makers and the duty of public authorities to act fairly when
making decisions.
Procedural Fairness – the common law threshold
 
Nicholson

• In Nicholson, Justice Laskin did not reject the distinction between

administrative and judicial/quasi-judicial decisions (this came in subsequent
cases).

• Instead, he accepted as a common-law principle the notion 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.”

• In subsequent cases, we will see that the “duty of fairness” came to replace
natural justice as the organizing principle in administrative law, and that it is
no longer necessary to differentiate between the two. 
Procedural Fairness - the common law threshold 

Martineau v. Matsqui, [1980] 1 SCR 602

• Courts take another step and find the duty of procedural fairness applied in principle
to disciplinary proceedings within a penitentiary. However, the court also notes that
a serious injustice would have to be found.

Att. Gen. of Can. v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735 & Cardinal v. Director of
Kent Institution, [1985] 2 S.C.R. 643

• Re-affirmed that administrative decisions must also be provided fairness except if

decision is legislative.

Cardinal v. Director of Kent Institution, [1985] 2 SCR 643)

• Justice Le Dain summed up the Court’s case law in this way at para 14: [T]here 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.
Procedural Fairness - the common law threshold 

• Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 is the next key case
on the road to procedural fairness in administrative decisions. It’s a 1990 SCC case
that followed Nicholson and also expanded the common law duty of procedural
fairness.

• In Knight, the Board of Education dismissed its director of education, who had refused
a contract renewal offer for a shorter term.

• The director, whose position was at pleasure (appointed), sued for wrongful dismissal,
arguing that he was entitled to procedural fairness before being dismissed.

• The Court first decided that the Board need not show cause for the dismissal, either
under the contract of employment or under the Education Act.

• However, the fact that the director could be legally dismissed without cause did not
mean that the procedure could be arbitrary.
Procedural Fairness – the common law threshold
 
Knight

• The key approach that comes out of the Knight is a 3-prong test or a threshold test to
determine the common law threshold for when a duty of fairness is owed.

• PRONG#1 - First, the nature of the decision must be sufficiently administrative or

quasi-judicial. Decisions that are of a "legislative or general nature" which are based
on broad policy issues rather than points of law are not likely to warrant a duty of
fairness. Furthermore, the decisions must be final in nature, not preliminary or
interlocutory.

• PRONG#2 - Second, the relationship between the (public) body and the
individual must be based on an exercise of power pursuant to a statute (or
prerogative power). Consider the structure and nature of the relationship and asks
whether there are procedural safeguards in the relationship.

• PRONG#3 - Third, the nature of the interest and the impact of the decision must
be significant.
 Procedural fairness - the common law threshold
Knight

• In Knight, the Board’s decision was final and specific, directed as it was to the termination of the director.
The Court concluded that the nature of the decision, the relationship between the parties and the impact
on the director was such that there was a general duty on the Board to act fairly. DUTY OF FAIRNESS
OWED

• After finding that there was a general duty on the Board to act fairly, the Court then went on consider
whether there was anything in the statutory framework that would modify or limit this right. The Court
reviewed the Education Act and the employment contract and concluded there was nothing in the Act
to limit or modify the duty of fairness. NO LIMITS

• The next question for the Court was the content of the duty, pointing out that procedural fairness and
its content is to be decided in the context of each case. WHAT DOES FAIRNESS LOOK LIKE?

• In this case, the Court considered the fact that the director could be dismissed at pleasure - for this
reason the CONTENT OR AMOUNT OF FAIRNESS = MINIMAL .

• The Board made itself sufficiently available for discussion through meetings with the director and his
lawyer and each party’s concerns were known to each other. The director knew the reasons for
dismissal and was given the opportunity to present his position to the Board.

•
Procedural fairness - the common law threshold
• Overall, the implications of Knight are significant.

• It provides us with a test (or threshold) for determining where

the duty of procedural fairness will be found to exist by the
courts.

• If all the criteria are met, then procedural fairness is triggered

and the court will decide what procedures the applicant is due –
or the content of what fairness looks like in the particular case.

• In conclusion, In looking at the threshold or trigger for the

common law duty of fairness, the key cases that started us
down the path of where we are today are Nicholson, Cardinal
and Knight
 Procedural fairness - the common law threshold

The
 threshold test – is a duty of fairness owed?

• Nicholson – no need to differentiate between judicial/quasi judicial vs. administrative.

Also consider 3-prong test from Knight:

[Link] of decision. Is it preliminary or final? Investigative vs. determinative?

[Link] relationship between the (public) body and the individual. Is it based on an
exercise of power in pursuant to a statute (or prerogative power)?

[Link] decision must affect the claimant's rights, privileges or interests (also Cardinal).

Are
 there any limits to the duty of procedural fairness?

 Checklist
 The Threshold Question - Bill of Rights & The Charter
• The Bill of Rights and the Charter are sources of procedural fairness.

• The threshold or trigger for when these sources may be invoked to ensure
procedural fairness occur in three main circumstances:

1. Where the enabling statute expressly denies certain procedural safeguards or

provides a lower level of safeguards, leaving no room for common law
supplementation. In such case, only constitutional or quasi-constitutional norms
may override the statute and mandate more significant procedural protections.

2. Where these constitutional or quasi constitutional norms may provide procedural

protections where none previously existed.

3. In instances where these norms may mandate a higher level of procedural

protection than common law procedures.

• In the second and third circumstances, the procedural protection is greater than the
protection recognized at common law.
The Threshold Question - Bill of Rights

Canadian Bill of Rights

• Only applies to federal decision makers.

• Relevant sections for admin law – sections 1(a) and 2(e):

Section 1
• It is hereby recognized and declared that in Canada there have existed and shall
continue to exist without discrimination by reason of race, national origin, colour,
religion or sex, the following human rights and fundamental freedoms, namely,
• (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

Section 2(e)
• [N]o law of Canada shall be construed or applied so as to … 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
 The Threshold Question - Bill of Rights

Canadian Bill of Rights

• Even where other protections are available (for example, the Charter), the Bill of
Rights may nonetheless provide a preferable route to a remedy in light of the
distinctive features of the due process and fair hearing provisions – such as the
due process protection over the enjoyment of property.

• The Bill of Rights threshold of “rights and obligations” for invoking the “fair
hearing” protection under section 2(e) is far broader than the Charter

• There is no “limiting clause” in the Bill of Rights as there is in section 1 of the

Charter.
 The Threshold Question - Bill of Rights
• In the SCC case of Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, three justices of a
six-justice majority relied on section 2(e) of the Bill of Rights in ruling inoperative a statutory scheme which
failed to provide refugee claimants with an oral hearing.

• Between 1977 and 1980, Harbhajan Singh, six Sikh foreign nationals and one from Guyana attempted to
claim convention refugee status under the Immigration Act, 1976 on the basis that they had a well-founded
fear of persecution in their home country. They were denied status by the Minister of Employment and
Immigration on the advice of the Refugee Status Advisory Committee.

• The six foreign nationals challenged the adjudication procedures under the Immigration Act on the basis that
it violated section 7 of the Canadian Charter of Rights and Freedoms and violated section 2(e) of the
Canadian Bill of Rights. The government claimed that since they had no status within the country they were
not subject to the Charter.

• In Singh, Justice Beetz J. wrote –

“the most important factors in determining the procedural content of fundamental justice in a given case are
the nature of the legal rights at issue and the severity of the consequences to the individuals concerned"

• The other three justices in the majority came to the same conclusion but relied on section 7 of the Charter.
 The Threshold Question - Bill of Rights
• Another case that considered subsection 2(e) of the Bill of Rights
is MacBain v. Canada (Human Rights Commission), 1985 CanLII
3160 (FCA).

• In MacBain the Federal Court of Appeal explored the reach of

section 2(e) in more depth, and used the “fair hearing” protection
to rule inoperative provisions of the Canadian Human Rights Act
which permitted the Chair of the Canadian Human Rights
Commission to select Tribunal members to hear a complaint
which the Commission was also charged with investigating and
prosecuting.

• See also:
• Authorson v. Canada
• Bell Canada v. Canadian Telephone Employees’ Association
The Threshold Question – The Charter
• We will now look at the threshold question with respect to the Charter. The
Charter not only provides procedural protections for criminal defendants, but
also has applicability in admin law proceedings.

• Section 7 of the Charter is the most applicable to the administrative law

context. Section 7 states: "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.“

• The presence of the principles of fundamental justice within s. 7 has led to that
section’s emergence as the primary source of procedural safeguards within
the Charter.

• Note: you usually do not need to apply s. 7 to tribunals because applying the
common law principles will get you to the same end. However, s. 7 may be
key where the legislative regime explicitly denies certain procedural rights, in
which the common law is no help.
The Threshold Question – The Charter

What does a violation of section 7 look like?

• Section 7 protection requires a two-step test. First, the applicant must

show that the right to either “life”, “liberty” or “security of the person”
has been infringed. Then, the applicant must point to a principle of
fundamental justice that has been infringed.

• When a common law procedure does not provide the level of fairness
that is appropriate in the circumstances, it may amount to a violation of
fundamental justice.

• Let’s take a look at some of the case law that has considered the
impact and triggers of s. 7 on administrative processes.

• SEE SUMMARY CHART

The Threshold Question – The Charter
What does a violation of section 7 look like?

Life

• The “right to life” has been interpreted to mean one’s right to live and be free of state conduct that increases the risk of dying.

• For example, see Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, in which there was evidence showing that the
lack of timely health care could result in death.

• Recall Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, in which the clients of Insite, a safe
injection site, were deprived of potentially lifesaving medical care.

• See also Carter v. Canada (Attorney General), 2015 SCC 5, in which s. 7 was engaged by the prohibition on physician-
assisted dying which had the effect of forcing some individuals to take their own lives prematurely.

Liberty

• The “right to liberty” implies freedom from physical restraint and freedom to make fundamental life choices.

• Liberty protects “the right to make fundamental personal choices free from state interference”:  Blencoe v. British Columbia
(Human Rights Commission), 2000 SCC 4; R. v. Morgentaler, [1988[ 1 SCR 30.

• This right does not include economic a purely economic interest. "The ability to generate business revenue by one's chosen
means is not a right that is protected under s. 7 of the Charter”: Siemens v. Manitoba (Attorney General), 2003 SCC 3.
The Threshold Question – The Charter
What does a violation of section 7 look like?

Security of the Person

• The right to security of the person has both a physical and psychological component.
The former is engaged when there is a threat of physical harm, while the latter in
engaged only where the state imposes or threatens to impose severe psychological
harm. See Carter v. Canada (Attorney General), 2015 SCC 5 at para. 64.

• In Blencoe, the SCC found that dignity, protection from stigma, and preservation of
reputation are underlying values of “psychological integrity,” and are not freestanding
constitutional rights. However, security of the person does include state-induced
psychological stress that is sufficiently serious, as well as delay attributable to
an administrative body that causes or exacerbates relevant harm.

• It may also be possible to invoke the protection of section 7 in proceedings that are
not criminal in nature but have penal consequences – for example, professional
disciplinary proceedings. •
The Threshold Question – The Charter
What does a violation of section 7 look like?

Security of the Person

• Security of the person can embrace the physical and psychological integrity of individuals in
domains beyond criminal law.

• In New Brunswick (Minister of Health and Community Services) v. G.(J.) is a leading Supreme
Court of Canada decision on the right to legal aid services. The Court held that the denial of legal
aid to parents whose custody of their child was challenged by the government is a violation of
section 7.

• The G(J) case also looked at the Right to Representation. Section 7 protection and Charter
rights have expanded the implication of the right to representation guaranteed by common
law procedural fairness. At common law, parties have a right to be represented by counsel, but
this has not expanded to the right to have the government pay for that representation.

• The reach of section 7 has expanded to cases where fairness requires the person to be
represented in order to ensure a fair hearing, and where lack of representation could result in
harm to an individual’s security of person – for example a child protection hearing where a child
may be taken away from their parents.
Limits to Charter Rights
• It is important to note that there are limits to Charter protected rights.

Section 1:

• “subject only to such reasonable limits prescribed by law as can be

demonstrably justified in a free and democratic society”

• The test, known as the Oakes test, to establish whether a law or practice
that violates a Charter is justified considers the following:

[Link] must be a pressing and substantial objective, and

[Link] means must be proportional

To meet the second part of the test, proportionality:

a) The means must be rationally connected to the objective
b) There must be minimal impairment of rights, and
c) There must be proportionality between the infringement and the objective.
 Limits to Charter Rights
Section 1:

• Under s. 1 of the Charter, the Court has held that infringement of s. 7 may be considered justified only in
“extraordinary circumstances where concerns are grave and the challenges complex.” An example of how
Charter rights may be limited using section 1 is the case of Singh v. Minister of Employment and Immigration,
[1985] 1 SCR 177.

Facts:

• The appellants were convention refugee claimants unable or unwilling to return to their country of nationality on
the basis of “well founded fear of persecution.

• Under the Refugee Act at the time, there was no provision for an oral hearing at any point unless the IAB
decided to give one, and no opportunity for the claimant to see the material relied upon for refusals (either by
the Minister or from a Board decision).

• Because the statutory scheme excluded the possibility of an oral hearing, the common law of procedural
fairness could not supply the legislature’s omission.

• The appellants claimed they didn’t have a fair opportunity to present their claim (they received no oral hearing),
or a fair opportunity to know the case that had to be met (all they got was a ‘no’). There were no reasons
provided until after the refusal.

• The appellants argued the case under s. 7. However, seven months after the decision was reserved, the SCC
invited counsel to make additional submissions under the Canadian Bill of Rights.
Limits to Charter Rights

In Singh, WILSON J – asked 3 Questions:

(1) Are the appellants entitled to the protection of the

Charter? Does it apply?

(2) Was there a denial of procedural protection that

should be available under s.7?

(3) Can procedures be saved under s. 1 of the Charter?

Demonstrably justified?
 Limits to Charter Rights
Commentary on Singh:
• Before applying the Charter, Justice Wilson pointed out that the express wording
of the statute prohibited using the common law – meaning that the statute was
very clear about the procedural requirements. There was no grey area or gaps.

• She found that the Charter ‘requires the court’ to override parliament’s decision
about the kind of procedural fairness sought by the appellant, and that there was
an emphasis on the ‘dire consequences’ of the decision (that is, the threat of
harm).

• Singh raised the question of to what extent can expense and administrative
inconvenience be a consideration? This was considered within the section 1
analysis. The fact that time and money can be saved by not having hearings, or
the fact that it is administratively convenient to deny hearings, does not override
the need to be consistent with the principles of fundamental justice. In any case,
the minister had not demonstrated that the cost of holding a hearing would be so
prohibitive as to fall within the meaning of section 1.
 Limits to Charter Rights

Commentary on Singh:

• Justice Wilson found that the appellant’s rights were protected by the Charter,
that the government's claim that giving a hearing to refugees would be
burdensome was too utilitarian a concern, and that administrative convenience
would rarely be sufficiently compelling to justify infringing a Charter right.

• The other Justices (Beetz, Estey, and McIntyre), concurring with Justice Wilson,
found in favour of the rights claimants. However, they used section 2(e) of the
Bill of Rights instead of the Charter. (Remember, this was a refugee case and a
Federal statute, so the Bill of Rights applies.)

• Justice Beetz stated that the Bill of Rights still has a role to play in Canadian law.
Beetz went on to find that in this case, refugees had been denied hearings.
Thus, their section 2(e) rights to fair hearings and fundamental justice were
infringed.
 Remedies Available for a Charter Violation
How can you challenge administrative actions that allegedly
violate a Charter right?

Section 24:

• Anyone who believes his or her rights or freedoms under the Charter have
been infringed by any level of government can go to court to ask for a remedy.
That person then must show that a Charter right or freedom has been
violated. If the limit is one that is set out in the law, then the government will
have an opportunity to show that the limit is reasonable under section 1 of the
Charter. If the court is not convinced by the government's argument, then it
can grant whatever remedy it feels is appropriate under the circumstances.

• The court may also make an order that the law in question is of no force or
effect

• Does it apply to tribunals? See R. v. Conway, 2010 SCC 22.

Remedies Available for a Charter Violation

Section 52(1):

• Remedy: to declare unconstitutional law to be void.

Can a tribunal strike down a law?

• A tribunal can certainly determine that a statute is unconstitutional. As we

saw in R. v. Conway, this depends on whether the tribunal has the
jurisdiction, explicit or implied, to decide questions of law and, if so, there
is a presumption that this power includes Charter questions.

• However, tribunals don’t “strike down” laws, nor can they issue general
declarations of invalidity as can superior courts. See, e.g., Bell v. Canada
(Canadian Human Rights Commission); Cooper v. Canada (Canadian
Human Rights Commission), [1996] 3 S.C.R. 854 at para. 83 (in dissent).
 PROCESS MAP - REVIEW

STEP 1 - If the threshold for procedural fairness has been

met and the duty of fairness applies …

NEXT … Consider whether there are any limitations on the

application of the duty of fairness.

When is a duty of fairness NOT owed?

 Limitations on the Application of the Duty of Fairness

• There are limitations (or exceptions) on the reach of the duty:

1. The Duty Applies to Decisions–Not to Investigations/ Advisory Processes

2. The Duty Does Not Apply to Legislative Decisions
• Policy decisions
• Subordinate legislation
• Cabinet and ministerial decision may be exempt

3. The Duty Does Not Apply to Public Office Holders Employed
Under Contracts

4. The Duty May Be Suspended or Abridged in the Event of an Emergency
Limitations on the Application of the Duty of 
Fairness
1. The Duty Applies only to Decisions

• The duty of fairness governs decision-making processes, which is

another way of saying that the duty applies only in contexts in which
decisions may be made.

• In principle, it does not apply to investigations or advisory processes

that may occur prior to the commencement of a formal decision-making
process.

• Recall Knight - If the decision is interim or preliminary such as

investigations or advisory, no duty of fairness is owed (subject to limited
exceptions).
Limitations on the Application of the Duty of Fairness
2. The Duty Does Not Apply to Legislative Decisions – Legislative Exemptions

• The Supreme Court of Canada has long insisted that the duty of fairness
does not apply to legislative decisions or functions.

• In Re Canada Assistance Plan (B.C.), the Court expressed the point

categorically: “[T]he rules governing procedural fairness do not apply to a
body exercising purely legislative functions.”

• The Court has never explained what it means by “legislative” functions, but it
is clear that primary legislation, whether passed by Parliament or a provincial
legislature, is not subject to the duty of fairness.

• Wells v. Newfoundland - [L]egislative decision making is not subject to any

known duty of fairness. Legislatures are subject to constitutional requirements
for valid law-making, but within their constitutional boundaries, they can do as
they see fit. The wisdom and value of legislative decisions are subject only to
review by the electorate.
 Limitations on the Application of the Duty of Fairness
Are Cabinet and Ministerial Decisions Covered by the Legislative Exemption?

• Cabinet and ministerial decisions are not subject to the legislative exemption per
se, but it will often be easy to characterize Cabinet and ministerial decisions as
legislative in nature and, as a result, they will be exempted from the duty.

Are Policy Decisions Covered by the Legislative Exemption?

• The rationale for exempting policy decisions from the duty is similar to that of
formal legislative decisions. Both are inherently political in nature and are, in
principle, subject to political accountability.
 Limitations on the Application of the Duty of Fairness

3. The Duty Does Not Apply to Public Office Holders Employed 
Under Contracts

• In the past, there was a distinction between those who held public office
(appointed / at pleasure) and persons on contract – now, post Dunsmuir,
there really is no distinction.

• The traditional position at common law was that public servants were literally
“servants of the Crown” and could therefore be dismissed at will.
Consequently, unlike contractual employees, public office holders did not
benefit from contractual rights protecting them from summary discharge.
Given this relative insecurity, courts had held it to be desirable to impose
minimal procedural requirements in order to ensure that public office holders
were not deprived of their positions arbitrarily.
 Limitations on the Application of the Duty of Fairness

3. The Duty Does Not Apply to Public Office Holders Employed 
Under Contracts

• Dunsmuir v. New Brunswick, the Supreme Court of Canada revisited earlier

case law on the issue and decided to curb the right to procedural fairness of
public office holders relating to the termination of their employment.

• The Court considered the public law duty of procedural fairness as it

applied to employment law. The Court confirmed that while the duty of
procedural fairness continues within administrative law, it is no longer
applicable where an employee has private law remedies. Essentially,
where the relationship with employer is governed by a contract or is
contractual in nature, the plaintiff is not entitled to the duty of procedural
fairness.
Limitations on the Application of the Duty of Fairness

4. The Duty May Be Suspended or Abridged in the Event of an 
Emergency

• The duty of fairness requires duties that must be observed before the
decision is made.

• However there may be public safety concerns which demand an

immediate decision regardless of the duty of fairness. Courts may defer
compliance with procedural fairness until after the decision is made.
[Cardinal v. Director of Kent Institution].

• It is not clear whether fairness is not required in emergency situations or

whether the content is minimal.
 PROCESS MAP - REVIEW
• Now that we have looked at the threshold test of determining whether
fairness is required in a particular case, we can move to the second
part of the analysis.

• If the common law threshold for procedural fairness has been met
and the duty of fairness applies, we need to ask:

 What does the content of the duty entail in the particular

circumstances? Or, in other words
– What does fairness look like?

• If there is an enabling statute then that is where you go to determine

the content of the duty.

• If the statute is NOT a complete procedural code or is there room or

need to supplement with the common law.
The Content of Procedural Fairness - Baker v. Canada

The leading case on the content of the common law duty of procedural fairness is
the 1999 SCC case Baker v.  Canada (Minister of Citizenship and Immigration),
[1999] 2 SCR 817.

• Baker sets out 5 factors relevant to determining to content of the duty:

(1) the nature of the decision being made and process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to
which the body operates;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision;
(5) the choices of procedure made by the agency itself.

• Note: these are not exhaustive criteria, and no one factor is more important than
the other.
The Content of Procedural Fairness - Baker v. Canada

• Baker also sets out some of the specific components of duty

of fairness – The right to be heard:

• Notice
• Disclosure
• Oral hearings
• Right to counsel
• Rights to call evidence
• Timeliness and delay
• Duty to give reasons
The Content of Procedural Fairness - Baker
Background:

• Regulations under the federal Immigration Act permitted the Minister of

Immigration to exercise discretion and allow a person to be admitted to Canada
(or to remain in Canada) on humanitarian and compassionate grounds.

• Ms. Baker came to Canada as a visitor in 1981 but remained illegally for 11 years,
during which time she had 4 children. When she became too ill to take care of her
children, it came to the attention of immigration officials that she was in Canada
illegally and she was ordered deported.

• She requested that she be allowed to remain in Canada on humanitarian and

compassionate grounds and supplied medical and other documentation.

• Her application was denied.

• An immigration officer wrote a letter rejecting her request stating that there were
insufficient grounds, but provided no reasons for this conclusion.
The Content of Procedural Fairness - Baker

• Through her counsel, Ms. Baker obtained notes prepared by this immigration official
from the immigration officials set out in detail why he considered her application
should be refused.

• Ms. Baker challenged the decision on 2 grounds:

1. First on the ground that she was denied procedural fairness.

• She claimed that the duty required an oral interview before the decision-maker;
notice to her children and other parent of the interview; a right of the children
and other parent to make submissions at the interview; notice to the other
parent of the interview and their to have counsel present; and reasons for the
decision.

2. She also claimed a breach of procedural fairness on the basis of a reasonable

apprehension of bias having regard to officer’s notes.

• The Supreme Court accepted that, in these circumstances, she was entitled to
procedural fairness. The main task for the Court was to determine what should be the
content of the duty of procedural fairness in the context of this case.
The Content of Procedural Fairness - Baker

• Excerpt from immigration officer’s notes:

...
This case is a catastrophy [sic].  It is also an indictment of our “system”
that the client came as a visitor in Aug. ’81, was not ordered deported until
Dec. ’92 and in APRIL ’94 IS STILL HERE!

The PC is a paranoid schizophrenic and on welfare.  She has no

qualifications other than as a domestic.  She has FOUR CHILDREN IN
JAMAICA AND ANOTHER FOUR BORN HERE.  She will, of course, be a
tremendous strain on our social welfare systems for (probably) the rest of
her life.  There are no H&C factors other than her FOUR CANADIAN-
BORN CHILDREN.  Do we let her stay because of that?  I am of the
opinion that Canada can no longer afford this type of generosity. 
However, because of the circumstances involved, there is a potential for
adverse publicity.  I recommend refusal but you may wish to clear this
with someone at Region.
The Content of Procedural Fairness - Baker
The Decision:

• As a starting point, the Court stated that the existence of a duty of fairness does not
determine what requirements will be applicable in a given set of circumstances.

• The duty is flexible and variable and depends on an appreciation of the context of
the particular statute and the rights affected.

• The Court concluded that there was a violation of the principles of procedural
fairness because of reasonable apprehension of bias on the part of the immigration
officer (discerned from his notes) and because the exercise of discretion was
unreasonable in that the decision-maker failed to give substantial weight to the
interests of the children.

• Where the interests of the children are minimized in a manner inconsistent with
Canada’s humanitarian and compassionate tradition and the Minister’s guideline, the
decision will be unreasonable.

• The matter was returned to the Minister for redetermination by a different

immigration officer.
 Baker - 5 Criteria to determine content
1. The Nature of the Decision Being Made and the Process
Followed in Making It
• Is it the type of case that requires court‐like adjudication or is it more
discretionary or regulatory in nature?

• Although the classification of decisions as judicial, quasi-judicial, or

administrative is no longer important in determining the threshold
question—whether procedural protection must be provided—
decisions that are considered judicial or quasi-judicial in nature are
likely to demand more extensive procedural protection than
administrative decisions.

• L’Heureux-Dubé J. put the point this way:

“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.”
 Baker - 5 Criteria to determine content
2. The Nature of the Statutory Scheme and the Terms of the
Statute Pursuant to Which the Body Operates

• The following questions are associated with this factor:

• Does the statute provide procedures? If not expressly stated, what can
be inferred?
• Does the statute provide for a right of appeal or review?
• Is the decision intended to be a preliminary one, or will it finally dispose
of an individual’s rights?
• Is the decision meant to be of general application, or will it primarily
affect a particular individual?
 Baker - 5 Criteria to determine content
2. The Nature of the Statutory Scheme and the Terms of the Statute
Pursuant to Which the Body Operates

• Pay close attention to the legislation that authorizes a particular decision to be

made. Fairness requirements may be minimal.

• For example: investigatory procedures are not normally subject to the duty of
fairness even though they might give rise to proceedings in which fairness
protection will be required.

• Greater fairness protection usually required if a final decision must be made.

• More procedural protection may be required if a second level of proceedings is

envisaged, in order to allow meaningful participation in those proceedings.

• For Example: the existence of a right of appeal is an important consideration in

deciding whether and to what extent reasons for a first-level decision are
required.
 Baker - 5 Criteria to determine content
3. The Importance of the Decision to the Individual or
Individuals Affected

• The more important a decision is to the lives of those it affects, the

higher the level of procedural protections mandated by common law
procedural fairness Eg. Charter rights mean more fairness

• For Example: context of employment – in Kane v. Bd. of Governors of

U.B.C. a professor was suspended without pay for 3 months. The court
found that the Board / Tribunal must observe natural justice …

• “[a] high standard of justice is required when the right to continue in one’s profession or
employment is at stake.”
 Baker - 5 Criteria to determine content
4. The Legitimate Expectations of the Person Challenging the Decision

• The doctrine of legitimate expectation may extend the content of the

duty of fairness.

• For example, a person might be led to understand that he or she will be

afforded particular procedural protection, such as an oral hearing
before a particular decision is made, even though that level of
protection would not otherwise be required.

• Legitimate expectation began as a threshold inquiry, but in Baker the

SCC subsumed the concept within determining the content of the duty.

• Legitimate expectations of procedural protection may arise out of

conduct such as representations, promises, or undertakings or past
practice or current policy of a decision-maker.
 Baker - 5 Criteria to determine content
4. The Legitimate Expectations of the Person
Challenging the Decision

• The Court summarized the concept in this way in Canada (Attorney General) v.
Mavi, 2011 SCC 30:

Where a government official makes representations within the scope of his or her
authority to an individual about an administrative process that the government will
follow, and the representations said to give rise to the legitimate expectation are
clear, unambiguous and unqualified, the government may be held to its word,
provided the representations are procedural in nature and do not conflict with the
decision maker’s statutory duty. Proof of reliance is not a requisite.

• In Mavi, a unanimous Supreme Court held that sponsors of immigrants to Canada

under the family class must pay for any government social assistance given to the
sponsored immigrant. Nevertheless, the government owes a duty of procedural
fairness to the sponsor, albeit the content being “fairly minimal”, and such payments
may be deferred (but not forgiven) subject to government’s discretion in assessing
individual circumstances.
 Baker - 5 Criteria to determine content
5. The Choices of Procedure made by the Agency Itself

• Some deference ought to be afforded to an agency’s ability to

choose its own processes, given that it may be in a better position to
know the type of hearing that is appropriate (given its expertise) and
how best to use its limited resources So you should consider these
factors whenever you are considering a fairness issue

• The content of the duty of fairness affects more than just the person
whose rights, privileges, or interests are at stake in a particular case.

• It also affects the decision-maker, who may be required to make

decisions in many other cases and those affected

• Need a workable standard and procedural choices that serve needs

of the particular case community it serves.
 Baker - 5 Criteria to determine content
5. The Choices of Procedure made by the Agency Itself

• In Baker, the Court noted:

• [T]he analysis of what procedures 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. 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.

• In a JR situation, an agency can educate the court as to the needs of their

processes, which may reflect compromises necessary to allow decisions to be
made within a reasonable time frame and at a reasonable cost.
 Some specific Components of the Duty of Fairness

• Although most of the procedural rights protected by the duty

of fairness are well established, their parameters are open
to argument in particular contexts:

Right to Be Heard Right to an Unbiased

Decision Maker
Notice, Disclosure, Oral Issues wrt individual
hearings, Right to be conduct, institutional
Present, Right to counsel, (structural) issues and lack
Rights to call evidence, of independence
Timeliness and delay, Duty
to give reasons
Questions ?