Procedural Fairness Flashcards
Why does PF exist?
Because public acts have a profound impact on the rights/interests and privileges of private indviduals
The government affects the governed, and so people with decisions made against them should have the opportunity to fully defend themselves and should have procedural fairness and should be able to influence the decision
RAce relations board
Lord Denning stated that those who have decisions made concerning them should have the opportunity to answer to them.
What are the two aspects of natural justice
Audi alteram partem
The right to know the case made against you and be afforded the opportunity to present your case
This comes with the implied right to notice, hearings and representation
Nemo Judex in Causa
Cant be a judge of your own cause
Right to an independent and impartial decison maker with no actual or perceived bias
What are the sources of PF
Empowering statutte- can mandate that certain PF be afforded, can also exclude PF
Other statutory provisions-SPPA
The bill of rights- article 2(e) the right to a fair hearing
Common law
Nicholson: Common law fills in the gaps that statute fails to provide
Baker:
5 factors that determine the degree of PF
1. NAture of the decision
2. DM statutory scheme
3. Legitimate interests of individual
4. Impact of decision on indvidual
5. The chosen procedure
Section 7 of charter
Suresh: Principle of justice requires that PF be afforded. When section 7 is triggered, the baker priciples must apply.
Ontario SPPA what does it stand for
Statutory Powers Procedure Act
name relecvan provisions
- defines the act
- Applies to any exercise of statutory power AND when there is a right to a hearing either implied or contemplated
Does not apply to SC, arbitrators
Court of ontario
S25(1) gives the tribunal power to make its own rules unless the leg says otherwise
S6- right to notice of heairng
s8- right to notice of allegations
10- right to rep
11- right to rep even as a witness
12- subpeona powers
17&18- right to decision, reasons behind decisions and notice of decision
AIm of SPPA
To provide protections for when there is a rght to hearing concerning a statutory power/decision
Common law duty of PF
Name case
CL duty of PF is triggered when a decision affects the rights/interests/privelleges of an individual
Changes w context and is not only concerned with the final decision.
Decisions of a legislative nature
True legislative decisions dont have procedural fairness
Rationale: parliamentary sovereignty
Decisions of a leg natue
State case and rationale
Wells
Leg is only restricted by con, as long as its within the con limits it can do as it sees fit
rationale
Potter and Brown
Decisions of leg nature are more public and generalised; they don’t apply to a specific individual and, therefore PF cant really apply.
Example of a leg decision
Green v law society
A law socierty making a decision of general application in the public interest.
Dunsmuir
If you are a public worker and the statute doesn’t provide you with PF, it doesn’t mean that you won’t be afforded PF, i.e. it doesn’t remove the need for admin DMS to provide PF. Instead of having public protection, recourse will be taken through the protections of contract law
Example of PF issue
Cardinal
Prisoners were at a correctional insitution
they were trransfered followung a riot before the review board hearing
board recommended their release from Solitary but director didnt listen
Didnnt provide reasons for why he refused to follwo the recommendations
Decision of director was set aside on grounds of PF
Legislative overide
State case
Ocean port
Showcases parliamentary sovereignty and legislative intent being triggered.
Parliament can determine the degree of independence that administrative decision-makers have as they are not at the same status as the superior courts.
It is possible that the legislature can override common laws procedural protections provided that it is within their constitutional bounds.
The nature of superior courts:
P23:
Superior courts are constitutionally required to have individual and institutional independence.
These principles protect the impartiality of judges by preventing them from external influence, namely the executive.
The nature of administrative tribunals:
P24:
Administrative tribunals lack this constitutional separation from the executive.
They are created to implement governmental policies and thus Parliament must determine the structure and composition required by a tribunal to allow it to function.
The degree of independence is dependent on what Parliament/the legislature prescribes, this choice must be respected.
The government can decide to limit procedural protections prior to the tribunal- subject to constitutional limits.
Discerning legislative Intent:
P27: Where the legislature is unequivocal and allows no room for the courts to consider common law doctrines of independence, the court must not do so.
Questions to ask PF
If theres PF [probided for in statute
If theres a right to hearing and its coming from a stat power- SPPA applies
If the common law duty is triggered
if yes, using baker, whats the degree
Whats the stanard of review for PF
Its whether or not you were afforded PF
Brooks v Ontario Racing
Its more like a correctness standard- either received PF or not
Case Study on Baker
The content of the duty varies with context:
P22: The duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular of the particular statute and the rights affected.
Regimbald p.279 citing ‘Knight’:
The content of procedural fairness is variable and dependent on the context of each case.
Administrative decision-makers are masters of their own procedures and therefore can conduct a cost-benefit analysis in order to determine whether a specific procedural protection may be granted
Brown&Evans:
Because there is a wide range of circumstances in which the duty of fairness is applied, it cannot be monolithic.
Sometimes situations may warrant procedural fairness like that of courts.
Other times procedural fairness could be satisfied by an informal/simple procedure.
Justification for the variable standard:
Canada (Attorney General) v. Mavi, 2011 SCC 30 p. 4
Held: The courts must balance efficiency and justice.
On one hand, administering a fair process slows things down and costs money, but on the other hand, people will suffer if they are treated unfairly.
The overarching principle:
P28: A person should have the opportunity to present their case fully and fairly when decisions affect their rights/interests/privileges and be subject to fair and impartial procedure.
The Baker factors:
P23-27: When determining the content of procedural fairness, the courts must have regard to the following 5 factors:
The nature of the decision being made and the process followed in making it.
The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.
The importance of the decision to the individual or individuals affected.
The legitimate expectations of the person challenging the decision.
The choices of the procedure made by the decision maker itself.
