Chapter 4 Flashcards
Where can procedural fairness rules be found?
Agencies’ enabling statutes, common law principles, Canadian Charter of Rights and Freedoms, Canadian Bill of Rights, Quebec’s Charter of Human Rights and Freedoms, Section 35 of the Constitution Act, 1982
These sources lay the foundational legal framework for procedural fairness in Canada.
What is the nature of procedural fairness?
Procedural fairness is ‘contextual,’ not absolute
This means that the level of fairness required can vary based on specific circumstances.
What factors determine the appropriate level of fairness in a tribunal’s procedures?
- Nature of the decision
- Nature of the statutory scheme
- Importance of decision to the affected person
- Extent to which affected person has legitimate expectations
- Extent to which legislature intended discretion
These factors guide how procedural fairness is applied in various contexts.
What takes precedence, statutory fairness requirements or common law requirements?
Statutory fairness requirements take precedence over common law requirements
Statutes can establish specific procedures that must be followed, overriding traditional common law principles.
What are some permissible departures from common law procedural fairness?
- ‘Adequate’ notice periods
- Requirements for sharing information with other parties
These departures can be defined by specific statutory provisions.
What are the two basic principles of procedural fairness?
- Right to be heard
- Right to an unbiased decision-maker
These principles ensure fair treatment in administrative processes.
What does the first pillar of procedural fairness require?
Requirement to provide a hearing
This includes both informal opportunities to be heard and formal hearings.
What does the right to notice entail in procedural fairness?
All persons whose rights may be affected are entitled to notice of the proceedings
However, this does not always include the right to disclosure of evidence.
What is required regarding evidence retention in investigations?
Investigators must retain evidence that may need to be disclosed later
This is significant for ensuring fairness in future proceedings.
What is the right to be present during a hearing?
Parties have the right to be present throughout the entire hearing process
A tribunal may proceed in absence of a party under specific circumstances.
What does the right to be represented allow parties to do?
Parties may present their own case or have it represented
This does not guarantee an absolute right to delay proceedings for representation.
What is the right to present evidence?
Parties have the right to present evidence to establish facts of case
A summons may require parties with relevant information to provide it.
What does the right to cross-examine entail?
Parties can respond to evidence brought against them
Some provinces allow reasonable limits on cross-examination.
Who must decide the case in a hearing?
The person who hears the case is the only person who may decide the case
This ensures that the decision is made by an individual who has directly engaged with the evidence.
What must a tribunal’s decision be based on?
The decision must be based solely on the evidence presented at the hearing
Exceptions include judicial notice or administrative notice.
What is the principle regarding timely decisions?
Right to be heard in a timely manner and receive a decision without delay
‘Justice delayed is justice denied’ emphasizes the importance of prompt decisions.
When is the requirement to give reasons for a decision triggered?
When the decision may seriously affect an individual’s rights, privileges, or interests
Reasons are also necessary for exercising the right to appeal.
