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Administrative Law
I N T R O D U C T I O N
The Administrative State and the Rule of Law
COURTS AND ADMINISTRATIVE AGENCIES(skip to p23)
JUDICIAL REMEDIES OF ADMINISTRATIVE LAW: (p25)
-The courts exercised this supervisory jurisdiction through remedies that were available only in respect of public duties or powers.
-They were known as the prerogative writs.
-Three prerogative writs:
Certiorari – to quash or set aside a decision.
Mandamus – to order the performance of a public duty.
-When the legislature has not provided a statutory right of appeal, in what circumstances may a court intervene in the administrative process at the instance of a person who has invoked its supervisory jurisdiction?
-There are 4 principle grounds of JR (which may overlap):
1. Procedural impropriety: before taking action that may adversely affect the interests of individuals, administrators are generally under a legal duty to act in a manner that is procedurally fair. Judges have developed much of what is defined as fair. Legislation may prescribe the procedures to be followed.
The Role of Judicial Review
Baker (1999)
Baker v Canada (Minister of Citizenship and Immigration) (1999) 2 SCR 817 (Can.)
Facts: Mavis Baker, Jamaican who entered Canada as a visitor in 1981 and has remained since. She never received permanent resident status, but supported herself illegally as a domestic worker for 11 years. She has 4 children in Canada and 4 in Jamaica. She was ordered to be deported in 1992. In 1993 she applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate (H & C) considerations, pursuant to s.114(2) of the Immigration Act. In 1994 she was denied stating in the letter that there were insufficient H & C grounds. This letter contained no reasons for the decision.
Held: the appropriate standard of review is reasonableness simpliciter. Both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the humanitarian and compassionate (H&C) discretion was unreasonable. The matter was returned to the Minister for redetermination by a different immigration officer.
-Relevant Statutory Provisions and Provisions of International Treaties
Immigration Act, R.S.C., 1985, c. I-2
82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court -- Trial Division.
83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court
Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
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.
Immigration Regulations, 1978, SOR/78-172, as amended by SOR/93-44
2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada 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.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
Also see:
Article 9; Article 12
Issues (raised by this appeal):
(1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review?
(2) Were the principles of procedural fairness violated in this case?
(i) Were the participatory rights accorded consistent with the duty of procedural fairness?
(ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?
(iii) Was there a reasonable apprehension of bias in the making of this decision?
(3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker's children?
NOTE: In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration
Analysis:
B. The Statutory Scheme and the Nature of the Decision
-Immigration officers who make H&C decisions are provided with a set of guidelines, contained in Chapter 9 of the Immigration Manual. The Guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them.
-Officers have a duty to ask themselves what a reasonable person would do in such a situation (Guideline 9.05)
-Officers also have a duty to assure themselves, first, whether a public policy consideration is present, and if there is none, ask whether humanitarian and compassionate circumstances exist.
-Humanitarian and compassionate grounds will exist if unusual, underserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada (Guideline 9.07).
-The Guidelines also address situations involving family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a Canadian resident.
-Also to be considered is the reasons why the person did not apply from abroad and the existence of family or other support in the person’s home country.
C. Procedural Fairness
Ms Baker argued that she was accorded insufficient participatory rights, that a duty to give reasons existed, and that there was a reasonable apprehension of bias.
(1) FACTORS AFFECTING THE CONTENT OF THE DUTY OF FAIRNESS:
The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances – “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness (Knight).
Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances (non-exhaustive list):
(i) The nature of the decision being made and the process followed in making it.
· “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making” (Knight).
o The more the process is 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 to 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.
o i.e. if there is a ‘right of appeal’ this is a factor illustrating that the procedure was designed to be more judicial, thus a factor is favour of greater procedural protections. Thus, the more rights for the appellant usually.
(ii) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.
· Greater procedural protections 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.
o i.e. if there are no procedural protections in the statute, this is a factor illustrating that the procedure was designed to be more judicial, thus a factor in favour of greater procedural protections.
(iii) The importance of the decision to the individual(s) affected.
· 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.
· Kane – “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”.
· R v Higher Education ... Dental Surgery (1994)– The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.
(v) The legitimate expectations of the person challenging the decision.
· Old St. Boniface– this doctrine is part of the doctrine of fairness or natural justice, and it does not create substantive rights.
· Qi v Canada – if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.
· If a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights. Nevertheless, the doctrine of LE cannot lead to substantive rights outside the procedural domain.
(vi) Take into account and respect the choices of procedure made by the agency itself.
· This is particularly so 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.
(2) LEGITIMATE EXPECTATIONS:
-No legitimate expectation based upon the articles of the Convention. The Convention is not the equivalent for a government representation about how H&C applications will be decided.
(3) PATICIPATORY RIGHTS:
Was the failure to accord an oral hearing and give notice to Ms. Baker or her children inconsistent with the participatory rights required by the duty of fairness in these circumstances?
-Court evaluated this question based on the above 5 considerations of procedural fairness above.
Answer – Baker v Canada:
-It cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different way in different situations....
-I agree that an oral hearing is not a general requirement for H&C decisions. ...
-Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances.
-The opportunity which was afforded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
(4) THE PROVISION OF REASONS:
-The appellant submits that the duty of fairness, in these circumstances, requires that reasons be given by the decision-maker.
-She argues either that the notes of Officer Lorenz should be considered the reasons for the decision, or that it should be held that the failure of Officer Caden to give written reasons for his decision ... be taken to be a breach of the principles of fairness.
Shah – The Federal Court of Appeal held that reasons are unnecessary.
Tylo (1995) – the case history notes prepared by a subordinate officer are not to be considered the decision-maker’s reasons.
Gheorlan (1995) and Chan (1994) – the notes of the reviewing officer should not be taken to be the reasons for decision, but may help in determining whether a reviewable error exists.
Marques (1995) – an H&C decision was set aside because the decision-making officer failed to provide reasons or an affidavit explaining the reasons for his decision.
-Traditional position at common law: the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions – Northwestern Utilities [1979].
-Importance of giving reasons:
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3
· Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out.
· The process of writing reasons for decision by itself may be a guarantee of a better decision.
· Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review
· Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given.
-Concerns about giving reasons:
Osmond
· A reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers.
· That it may lead to increased cost and delay.
· It might induce a lack of candour (being frank and open) on the part of the administrative officers concerned.
-However, some Canadian courts have imposed, in certain circumstances, a common law obligation on administrative decision-makers to provide reasons, while others have been more reluctant
Orlowski v British Columbia (AG) (1992)– reasons would generally be required for decisions of a review board ...
RDR Construction (1982)– because of the existence of a statutory right of appeal, there was an implied duty to give reasons.
Boyle (1996) – Bastarache emphasized the importance of adequate reasons when appealing a decision.
Answer – Baker v Canada
- 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. ...
-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.
HOWEVER ... the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision.
(5) REASONABLE APPREHENSION OF BIAS:
-The duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision.
-The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner. ...
-the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.
Newfoundland Telephone Co and Old St. Boniface– the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness.
-Test for Reasonable Apprehension of Bias:
Committee for Justice and Liberty v National Energy Board (1978)
“...The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... That test is ‘what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
Answer – Baker v Canada
-The well-informed member of the community would perceive bias when reading Officer Loren’s comments.
-His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. ... the conclusion drawn was contrary to the psychiatrist’s letter. ...
-His use of capitals to highlight the number of Ms. Baker’s children may also suggest to a reader that this was a reason to deny her status.
-Reading his comments, I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer.
-I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias.
D. Review of the Exercise of the Minister’s Discretion
-Although the finding of reasonable apprehension of bias is sufficient to dispose of this appeal, it does NOT address the issues contained in the “serious question of general importance” which relates to the approach to be taken to children’s interests when reviewing the exercise of the discretion conferred by the Act and Regulations.
(a) The Approach to Review of Discretionary Decision-Making
-The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as:
the bad faith of decision-makers,
the exercise of discretion for an improper purpose, and
the use of irrelevant considerations.
-In my opinion, these doctrines incorporate two central ideas:
(i) That discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but
(ii) That considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker's jurisdiction.
-These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised.
-However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121) in line with the general principles of administrative law governing the exercise of discretion, and consistent with the Charter (Slaight Communications Inc. V Davidson [1989]) .
-Therefore, although discretionary decisions will generally be given considerable respect, that discretion MUST BE exercised in accordance with the boundaries imposed by:
àthe statute,
àthe principles of the rule of law,
àthe principles of administrative law,
àthe fundamental values of Canadian society, and
àthe principles of the Charter.
(2) The Standard of Review in Baker
-The "pragmatic and functional" approach recognizes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less deference.
-3 standards of review have been defined: patent unreasonableness,
reasonableness simpliciter, and
correctness:
-Applying the Pragmatic and Functional approach in Baker v Canada to determine the appropriate standard of review for decisions under s.114(2) of the Immigration Act and Regulation 2.1 of the Immigration Regulations, and the factors affecting the determination of that standard outlines in ...it has held that the decision, which related to the determination of a question of law was subject to a standard of review of correctness.
-However, this types of decision at issue was very different, as was the decision-maker.
-Thus, the appropriate standard of review must, therefore, be considered separately in Baker:
First factor – the presence or absence of a privative clause, and in appropriate cases, the wording of that clause.
· There is no privative clause contained in the Immigration Act.
Second factor – the expertise of the decision-maker.
· The fact that the formal decision-maker is the Minister is a factor militating in favour of deference.
· The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.
Third factor – the purpose of the provision in particular, and of the Act as a whole.
· This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act. The decision also involves applying relatively "open-textured" legal principles, a factor militating in favour of greater deference (Pushpanathan).
· The purpose of the provision in question is also to exempt applicants, in certain circumstances, from the requirements of the Act or its Regulations. This factor, too, is a signal that greater deference should be given to the Minister.
Fourth factor – considers the nature of the problem in question, especially whether it relates to the determination of law or facts.
· The decision about whether to grant an H&C exemption involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.
Answer – Baker v Canada
-I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language.
-Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness".
-I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
NOTE: The four above factors aid in determining what standard of review is required. Once determined, it must then be decided whether that standard was upheld.
(3) Was This Decision Unreasonable?
-Next, I will examine whether the decision in Baker, and the immigration officer’s interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in Southam: “An unreasonable decision is one that, is not supported by any reasons that can stand up to a somewhat probing examination”.
Answer - Baker v Canada
-The approach taken to the children’s interests shows that this decision was unreasonable in the sense contemplated in Southam.
-The officer was completely dismissive of the interests of Ms. Baker’s children. ...
-I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer. ...
-In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children.
NOTE: The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon "compassionate or humanitarian considerations". These words and their meaning must be central in determining whether an individual H&C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person's admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner.
-Thus, Baker has found that it is necessary for the Minister to consider an H&C request when an application is made. AND the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations.
-Children’s rights, and attention to their interest, are central H&C values in Canadian society. Indications of children’s interests as important considerations governing the manner in which H&C powers should be exercised may be found in the purposes of the Act, in international instruments, and in the guidelines for making H&C decisions by the Minister herself.
a. The Objectives of the Act:
-s.3(c)
-In my opinion, it is consistent to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada.
b. International law:
-Francis v The Queen (1956)– International treaties and conventions are not part of Canadian law unless they have been implemented by statute.
Answer – Baker v Canada
-I agree with the respondent and the CA that the Convention has not been implemented by Parliament.
- Its provisions therefore have no direct application within Canadian law (Francis and Capital Cities).
-Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
-Iacobucci (dissent): ... I do not share my colleague’s confidence that the Court’s precedent in Capital Cities, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.
c. The Ministerial Guidelines:
Baker v Canada
Held: Immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. ...
I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children ... it was an unreasonable exercise of the power conferred by the legislation and must be overturned.
E. Conclusions and Disposition
-Therefore, both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the H&C discretion was unreasonable, I would allow this appeal.
P R O C E D U R E
PR
Fairness: The Sources and Threshold
SOURCES
-The concept of procedural fairness, or “FAIRNESS” descends from the rules of “NATUAL JUSTICE”, which, historically, imposed on tribunals exercising juridical or quasi-judicial functions the trial-type procedures typical of courts.
-Today, however, it applies to a much broader spectrum of decisions, including the ministerial decision involved in Baker and its requirements vary accordingly, from notice of the decision and an opportunity to comment in writing to more elaborate in-person hearing requirements.
-To mark the development of the modern doctrine of procedural fairness, the first English case is Cooper.
-In Cooper, reliance is placed on one of the very oldest authorities:
Dr. Bentley’s Case (1723) – “not even God failed to provide Adam and Eve with a hearing before casting them out of the Garden of Eden”.
-This illustrates how appeals were made to conceptions of morality and natural law in the foundational jurisprudence.
THE TRADITIONAL COMMON LAW DOCTRINE:
Cooper v Wandsworth (1863)
Facts: Builder must give 7 days notice before starting construction of a house. If no application is made, the Board could demolish the house. But, nothing in statute that notice had to be given to the builder to demolish. Cooper sued for trespass. Board claimed it was ultravires. Board said they acted in accord with the statute.
Held: Board could not rely on lawful authority, Cooper should have had the opportunity to be heard, entitled to natural justice. No good reason why board could not give a hearing, it would have been no harm to the Board if they would have waited.
Facts: That case involved the dismissal of the chief constable of a borough police force. Under the relevant statute the watch committee was empowered to dismiss a borough constable "whom they think negligent in the discharge of his duty". The dismissal was made without informing the chief constable of the charges against him and without giving him an opportunity to be heard.
HL Held: the watch committee was bound to observe the principles of natural justice and that, in view of the failure to do so, the dismissal was a nullity. The chief constable's dismissal was a nullity on the grounds that the administrative body which had dismissed him had failed to provide the reasons for his dismissal or to accord him an opportunity to be heard in violation of the rules of natural justice.
· Central to the reasoning in the case was Lord Reid's distinction between (i) master-servant relationships (i.e. contractual employment), (ii) offices held "at pleasure", and (iii) offices where there must be cause for dismissal, which included the chief constable's position. According to Lord Reid, only the last category of persons was entitled to procedural fairness in relation to their dismissal since both contractual employees and office holders employed "at pleasure" could be dismissed without reason.
-The principles established by Ridge v. Baldwin were followed by the Canadian Courts in Nicholson.
-Nicholson, like its U.K. predecessor, marked the return to a less rigid approach to natural justice in Canada.
THE MODERN COMMON LAW DOCTRINE: DIMENSIONS AND LIMITATIONS OF PROCEDURAL FAIRNESS:
Nicholson (1979) 1 SCR 311 (Ont.)
PRINCIPLE: The more serious the consequences of the dismissal, the more need for greater fairness. AND. The existence of a duty of fairness no longer depends on classifying the power involved as “administrative” or “quasi-judicial”.
Facts: Nicholson served as a constable for 15 months and was discharged by the board without being given an opportunity to make submissions. s.27 Police Act (1970) required an officer to be employed for 18 months before being entitled to a hearing and final disposition.
SCC Held: Appeal allowed (5-4 decision). Laskin declared the dismissal void on the ground that the officer fell into Lord Reid's third category and was therefore entitled to the same procedural protections as in Ridge v. Baldwin. The SCC says that the Board should have told him why his services were no longer required and given him an opportunity whether orally or written to be heard. In doing this, the court is trying to be deferential to allow Board to function how they wish, but wants to ensure procedural fairness.
Distinctions between judicial and administrative functions:
Martineau v Matsqui (1980) 1 SCR (Can.)
PRINCIPLE: courts need not distinguish between a duty to act fairly, and a duty to act in accordance with the rules of natural justice when applying to Administrative or Judicial/quasi-judicial decisions. Sliding scale with natural justice at the top (greater protection/rights) and duty to act fairly (less protection/rights).
(Pre-Nicholson, the SC had shown little or no sympathy to the procedural claims of inmates).
Facts: Martineau and Butters, inmates in a federal jail who committed a disciplinary offence, were disciplined, and alleged that they were not given a hearing. They made an application for certiorari (quash or set aside). The application was essentially based on the fairness requirement. They were met with the argument that certiorari can be used to review only judicial or quasi-judicial functions. This argument was rejected by the SC, which appeared to expand the limits of certiorari to include enforcement of procedural requirements generally.
SCC Held:
(1) SCC expanded the limits of certiorari to include enforcement of procedural requirements generally (not just judicial and quasi-judicial).
· “The order may go to any public body with power to decide any matter affecting the rights, interests, privileges or liberty of any person. The reason for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers”
(2) The courts should not treat natural justice and procedural fairness as two different standards dependent for their respective application on whether the function in issue was judicial or quasi-judicial on the one hand, or administrative on the other. Rather, procedural entitlements are on a spectrum or sliding scale.
-Canadian procedural fairness case law following Nicholson was marked by the gradual expansion of the duty of fairness to areas of administrative decision making, including decisions of correctional authorities affecting the rights, privileges, and interests of inmates (Cardinal) that had previously escaped jurisdictional scrutiny for compliance with the rules of natural justice.
NOTE: Cardinal v Director of Kent Institution (1985)
Principle: a duty of fairness (right to be heard and receive reasons) was required to prisoners who were denied release from segregation. AND any admin decision which is not legislative and effects rights of individuals, attracts fairness AND even if it is predicated that a certain result would incur, a fair hearing must still occur.
-In Knight, a majority of the SCC recognized that in dismissing its director, who helped this office at pleasure, a school board was bound by the duty of fairness.
-The four-judge majority embraced the conception of procedural fairness as a free-standing common law right, thus eschewing the need to find in the decision-maker’s enabling statute any provisions that expressly or impliedly conferred on the office-holder a right to be heard.
Knight v. Indian head School Division (1990) SCR (Sask)
Facts: The appellant board of education dismissed the respondent director of education when he refused to accept a renewal of his contract for a shorter term than the original. The respondent brought an action against the appellant alleging wrongful dismissal. The SCC held that the board did not need to show cause for the dismissal either under the contract of employment or under The Education Act. The respondent then argued that he was entitled to procedural fairness before being dismissed and that he had not been fairly treated. The court had to decide whether procedural fairness was due to an officeholder at pleasure.
Held: procedural fairness was due, but the requirements of procedural fairness had been satisfied. The appellant owed NO duty of fairness to the respondent. The board of education’s appeal was therefore allowed.
Held: it did attract such a duty on the ground that the director's position had a "strong statutory flavour'" and could thus be qualified as a public office. In doing so, she specifically recognized that, contrary to Lord Reid's holding in Ridge v. Baldwin, holders of an office "at pleasure", were also entitled to procedural fairness before being dismissed. The fact that the director's written contract of employment specifically provided that he could be dismissed with three months' notice was held not to be enough to displace a public law duty to act fairly (quoted from Dunsmuir – check).
-OVERRULED on:
(1) office holders at pleasure were also entitled to a public law duty of procedural fairness before being dismissed, contrary to Ridge v Baldwin (Dunsmuir: office holders at pleasure are not).
(2) Employees under an employment contract are subject to a public law duty to act fairly before being dismissed (Dunsmuir: the law of contract governs employment contracts, not subject to the public law duty to act fairly).
“Neither the statute nor the contract accords a right to procedural fairness. The duty to act fairly does not form part of employment law but stems from the fact that the employer is a public body whose powers are derived from statute and must be exercised according to the rules of administrative law.”
A. General Duty of Fairness
-The existence of a general duty of fairness depends on:
(i) The nature of the decision to be made by the administrative body;
· A decision of preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such effect
o In this case the decision was final therefore need to act fairly
(ii) The relationship existing between that body and the individual (employer and employer); and
· The classifications of the nature of the employment is no longer necessary (between at pleasure or employee that must be removed with cause) because the administrative body is required to act fairly in both cases
o In this case the office was held at pleasure and this implied a duty to act fairly
o NOTE: this is NO LONGER true after Dunsmuir
(iii) The effect/impact of that decision on the individual’s rights (effect on the employee)
· There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual
o In this case, the loss of employment is a significant decision that justifies imposing a duty to act fairly
Let’s look at the most recent case:
Dunsmuir v New Brunswick (2008) SCC 9
PRINCIPLE: where a public employee is employed under a contract or employment, regardless of his or her status as a public office holder, the law of contract (pay in lieu of notice) is invoked, not public law AND office holders at pleasure are not entitled to a public law duty of procedural fairness (confirming Ridge v Baldwin).
--In Knight it was held that the holder of an office “at pleasure” was entitled to be given the reasons for his or her dismissal and an opportunity to be heard before being dismissed – OVERRULED BY DUNSMUIR:
“We are of the view that the principles established in Knight relating to the applicability of a duty of fairness in the context of public employment merit reconsideration. ... Where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law”.
“In our view, the existence of a contract of employment, not the public’s employee’s status as an office holder, is the crucial consideration”.
“... he was also a civil servant and, pursuant to s. 20 of the Civil Service Act, his dismissal was governed by the ordinary rules of contract. If his employer had dismissed him without notice and without cause he would have been entitled to claim damages for breach of contract. Even if he was dismissed with notice, it was open to him to challenge the length of notice or amount of pay in lieu of notice given. On the facts, the respondent gave the appellant four months' worth of pay in lieu of notice, which he was successful in having increased to eight months before the grievance adjudicator”.
“It is true that the remedy of reinstatement is not available for breach of contract at
common law”.
“In our view, the distinction between office holder and contractual employee for the purposes of a public law duty of fairness is problematic and should be done away with. The distinction is difficult to apply in practice and does not correspond with the justifications for imposing public law procedural fairness requirements. What is important in assessing the actions of a public employer in relation to its employees is the nature of the employment relationship. Where the relationship is contractual, it should be viewed as any other private law employment relationship regardless of an employee's status as an office holder”.
“The starting point, therefore, in any analysis, should be to determine the nature of the employment relationship with the public authority. Following Wells, it is assumed that most public employment relationships are contractual. A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness. Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies”.
“However, there may be occasions where a public law duty of fairness will still apply. We can envision two such situations at present. The first occurs where a public employee is not, in fact, protected by a contract of employment. This will be the case with judges, ministers of the Crown and others who "fulfill constitutionally defined state roles”.
THE BAKER SYNTHESIS:
-By the time the SCC rendered its judgement in Baker, the leading Canadian case on procedural fairness, the basic features of the duty had been set.
-Whether the duty of fairness applies to a particular decision depended on a variety of contextual factors.
-The “degree” of fairness required for a particular decision and the specific procedural content of the duty also hinge on an assessment of these and other factors, including deference to the procedural choices made by the decision-maker.
CONSTITUTIONAL AND QUASI-CONSTITUTIONAL SOURCES OF PROCEDURES
-Procedural rights also receive constitutional protection under the Canadian Charter of Rights and Freedoms.
-Under quasi-constitutional instruments, protection is given under the Canadian Bill of Rights and the Quebec Charter of Human Rights and Freedoms.
THRESHOLDS
-The previous section mapped out a veritable web of sources of procedural protections. The procedures conferred by the decision-maker’s enabling legislation and related delegated legislation will protect affected parties as a matter of course.
-Whether general procedural codes, common law procedural fairness and constitutional and quasi-constitutional sources are available to supplement these procedures, on the other hand, will depend on whether the THRESHOLD for their application has been met.
-The judge-made THRESHOLDS for the application of the duty of fairness have been incorporated into the THRESHOLDS for some general procedural codes, like Ontario’s SPPA and for the quasi-constitutional Canadian Bill of Rights.
DECISIONS OF A LEGISLATIVE AND A GENERAL NATURE
-In Knight the legislative functions were excluded from the ambit of any implied procedural requirements.
-Indeed, this notion of the exclusion of legislative functions had earlier found acceptance in the judgement of Dickson in:
Martineau v. Matsqui Institution 1980 1 SCR 60
“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards”.
· review by certiorari was available whenever a public body has power to decide "any matter affecting the rights, interests, property, privileges, or liberties of any person".
-There is considerable ambiguity with the SCC judgments.
-In particular, about whether hearing rights are denied because of the character of the decision-maker, the nature of the decision, or both.
-It concerns a decision made normally by the governor in council but on the basis of recommendations made by a Cabinet committee.
-Among many decisions that cabinets make are those that invite demands for some form of participation – for example, decisions on appeal from agencies that have held hearings, or decisions that affect particular individuals or groups.
CABINET AND CABINET APPEALS
-What counts as a legislative decision?
-Does a purely ministerial decision have to be taken by a Minister?
Canada (Attorney General) v. Inuit Tapirisat of Canada (1980) 2 SCR 735
PRINCIPLE: Generally, the rules of natural justice are not applicable to Cabinet (legislative) or policy decisions (since greater deference and to Cabinet).
Facts: Bell Canada seeking approval for a rate increase, CRTC approves the new rate structure for Bell. Tapirisat appeal the CRTC decision to the Governor in Council b/c they believed that an increase in rates should be accompanied by better service to the Inuit communities. There are two paths that Tapirisat could have taken to appeal the decision, 64(1) which is a Cabinet petition, or 64(2) which is an appeal with leave to the Federal Court of Appeal on a question of law or jurisdiction (National Transportation Act). The Cabinet ruled against Tapirisat, they then made a fairness claim (not treated fairly, written submissions not presented, nothing shared with Tapirisat) at the Federal Court trial division because it is a question of judicial review. They couldn’t go through 64(2) in the first place b/c there was no question of law before.
SCC Held: “...The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond review. If that body has failed to observe a condition precedent to the exercise of that power, the court can declare that such purported exercise is a nullity”. BUT, “I am unable to conclude that the issue of fairness arises in these proceedings on a proper construction of s. 64(1)”.
· when a body is taking on delegated legislative functions and the subject matter is not an individual concern or right specific to the petitioner, it is most likely legislative decision making.
· “where the decision is directed at a specific individual and is based on factors particular to that individual, the function in issue will not be classified as legislative despite the political nature of the decision maker”.
Policy reasoning for allowing Cabinet to occupy this role à this provides govt with a quick and easy way to respond to changing public policies.
How do we know it’s a legislative decision?
· If it is a function performed in the past by government and legislature itself.
· Historically, this was a function determined by government.
· If it isn't of interest specifically to the petitioner, but affects a broad range of people (i.e. everyone with a phone), thus it looks like a policy decision.
BYLAW AND RULEMAKING:
Homex Realty and Development Co. Ltd. v. Wyoming (Village) (1980) SCC
PRINICPLE: if a decision affects a private individual in particular, it will not be considered legislative and the duty of fairness will apply (if the decision affected many people as do legislative decisions of general significance, then the duty of fairness would be less likely to be required since it has the potential of applying to a large amount of individuals).
Facts: Homex owns a subdivision and municipality wants Homex to service the new lots. Homex refuses to pay and the municipality introduces a bylaw which has the effect of deregistering the plan for the subdivision without giving prior notice to Homex. To have it registered, you need to go to the committee of adjustment for each individual lot, and this committee is able to impose conditions (such as making Homex pay). Homex claims they didn’t have the opportunity to be heard when council pass the bylaw which was a breach of the DOF.
SCC Held: Because the bylaw was aimed at limiting the rights of one individual (and not overwhelmingly in the public interest), there is a duty of fairness which would have been satisfied had the municipality given Homex the opportunity to be heard.
Legislative ——————————————————————————— Judicial
Broad range of interest Individual Rights
“Polycentric” Full Duty of Fairness
No Duty of Fairness (DoF)
POLICY MAKING
-Once we move away from decision making that can be classified in any formal sense as legislative, the question that still remains is where the exclusion of decisions of a “general” as well as a “legislative” nature has its bite.
-It seems clear that this will have the effect of denying claims to procedural protections in relation to certain species of broadly based policy decisions.
-Where the impact of the decision being made is scattered, affecting a broad spectrum of the public in a generally undifferentiated manner, claims to participatory rights will be hard to justify (unless the legislation contains some indication of public participation or obligations of consultation).
Canadian Association of Regulated Importers v. Canada (Attorney General) (1993) Federal Court and CA
PRINCIPLE: The rules of natural justice are not applicable to legislative or policy decisions. Parliament could have inserted the duty to give notice and consult with the public, but it did not. The Minister could consult to be considerate, but has no obligation to. Facts: A ministerial decision changed the quota distribution system for the importation of hatching eggs and chicks and based the decision on a company’s market share instead of historical data. Certain importers were to be disadvantaged from the new scheme and brought a challenge saying that they should have been consulted before the decision was made. Federal Court decision (Reed) Held: · although the Minister was exercising a statutory power which had been delegated to him, the general decision that he was making was applicable only to a very small segment of the population. · Thus, some form of notice to the respondents was required as well as an effective opportunity to be heard. o just a general notice b/c it was such a small group in one industry. Federal Court of Appeal (Linden) Held: principles of natural justice are not applicable to the setting of a quota policy although they may be to individual decisions respecting grants of quotas.
INDIVIDUALIZED DECISION MAKING BASED ON EXERCISE OF BROAD DISCRETIONARY POWERS
-Looking at Suresh v Canada (Minister of Citizenship and Immigration) [2002], concerns have to be raised about whether the individual interest at stake in cases like this should be subservient to broader public and political interests.
-Indeed, what this judgement highlights is that it presumably should not be enough for the government agency to assert broader policy considerations in defence to a procedural fairness argument.
-Part of the role of the courts in cases like this is that of evaluating the legitimacy and weight of those claims against the individual interests that is at stage with a view to determining whether there are any reasons of principle or utility for allowing that interest to be trumped at the procedural fairness level.
DECISIONS AFFECTING RIGHTS, PRIVILEGES, OR INTERESTS
-In Cardinal, the existence of a duty of fairness was that, whenever “rights, privileges or interests” were at stake.
-There have been many interpretations to this. If any of the interpretations to this was correct, there would be no need to treat “rights, privileges or interests” as a possible source for the exclusion or denial of claims.
-Thus, we do not start with the case of Cardinal. We start with the decision made by the Ontario CA which was decided almost immediately after Nicholson, but before Cardinal.
-The Re Webb judgement is important for a number of reasons, including its treatment of the intersection between procedural fairness claims and the Ontario SPPA and the sliding scale in procedural claims depending on the nature of the interests at stake.
-Even if the THRESHOLD no longer depends on a distinction between rights, on the one hand, and privileges and mere interests, on the other...the extent of the procedures to be accorded clearly CAN depend on the distinction between right on the one hand, and privileges and mere interests on the other hand.
Re Webb and Ontario Housing Corporation (1978) Ont. CA
PRINCIPLE: a privilege holder is entitled to a DOF (duty of fairness), like a holder of a right, however, to a lesser degree than a right holder.
Facts: Ontario Housing Corporation (OHC) owned an apt building rented for low market rent and was managed by Meridian. Webb and kids were tenants. In 1973, Meridian recommended to OHC that they should terminate Webb’s lease on the basis that her children were causing problems. Webb was provided with 2 letters that detailed the complaints against her and children, and although she could not read, someone came to her apartment to discuss the letters with her. The OHC brought an application to terminate lease under Landlord and Tenant Act and Webb applied for review of the OHC decision.
Held: Webb was treated fairly because she was advised of the case against her and was permitted to give an answer or remedy. The removal of such benefits did not attract the ‘full panoply’ of natural justice protections, only more limited procedural fairness obligations.
· Webb was granted a benefit when she became a tenant due to her being on welfare and the OHC, “in exercising its power of termination and thereby depriving the appellant of the benefit of the lease, was required, under the circumstances, to treat the appellant fairly by telling her of the complaints or case against her and giving her an opportunity, if she wished to make an answer to those complaints”
o If no notice is given, procedural fairness would not be met.
· “If no notice is given to a person who, as a result of an investigation by a public corporation in carrying out a public obligation, is in danger of losing an important benefit, and no opportunity is afforded to answer the "case" against him, such a procedure, in my view, would be unfair. Beyond that factual situation it may be that what constitutes fairness is, like beauty, to be found in the eye of the beholder”.
· “Once the appellant became a tenant she acquired a very real and substantial benefit because of her reliance on and eligibility for welfare. The determination to grant her this benefit was made when she was accepted as a tenant. That decision was one which, in my view, could be made by O.H.C. without any intervention of a rule or principle of procedural "fairness". However, once she became a tenant and thus "qualified" for and received the very real benefit of a reduced and subsidized rent, the situation changed”.
o Distinction that still stands is between the HOLDER of privilege, and APPLCIANT of privilege. The procedural entitlements in this case is restricted to people who already have the privilege to housing, NOT to those who are still applying for public housing.
· Once the threshold for DOF is crossed, still need to characterize if it is a right, privilege or interest in order to determine the type of DOF. A privilege will get less DOF than a professional license. There is also a distinction between the holders of the benefits and the applicants for the benefits (applicant may not have the same DOF protection). Privilege can be looked at in three situations: 1) applicant for privilege, 2) expectation of the privilege, and 3) forfeiture of the privilege (these have right to hearing b/c they will be stripped of benefit they already hold).
o NOTE: Hutfield modifies this by holding that even a privilege seeker can have DOF attached to decision.
o NOTE: Nicholson and Re Webb – reaffirmed and perhaps extended that the duty of fairness required of all persons or bodies exercising power even though the exercise of that power might be classed as administrative rather than judicial or quasi-judicial.
Importance: This case involved a decision about a privilege, but this is as big a deal that a decision affecting a right would have.
Hutfield v. Board of Fort Saskatchewan General Hospital District No.98 (1986) AB QB
PRINCIPLE: a minimal DOF (duty of fairness) may be owed to an applicant for privilege if the decision affects the applicant’s reputation.
Facts: Doctor applies to be appointed to medical staff at hospital so that he can obtain hospital privileges. An application for appointment is sent to the Board and is reviewed by the College of physicians, who make a recommendation and then a committee is set up which includes the Chief of Staff. The committee investigates the doctor and they make a recommendation to the Board. The first time the doctor applied the process was followed and the college recommended him but the committee denied him. In the second application, it went straight to the committee. Hutfield asked to appear before the board when it considered the application, but he was refused, and again the board rejected him and refused to give reasons. He sought certiorari to quash its decision and mandamus to compel consideration (Doctor is trying to get ‘hospital privileges’, i.e. he wants to work there).
Held: the decision was invalid because the second application was not sent to the college and the Board should have provided reasons for the denial of application. Even though the doctor was seeking to obtain a privilege, it was determined that a duty of fairness was owed to him.
-Factors contributing to the finding/situations in which DOF will be found:
(1) where a refusal of a licence casts a slur on the applicants reputation or financial stability the duty to act fairly may well require that the body should offer an opportunity for a hearing.
· i.e. it is an inference that Hutfield does not possess the credentials – slur on his reputation
· i.e. to be called to the bar you have to be person of good character, if you don’t get called to the bar that can be seen as slur on reputation
(2) the general interests of the public may be, and in the present case, are affected by the decision of the Board to grant or not to grant hospital privileges to the doctor.
· This process isn't in the public interest because it’s not transparent.
· In this case, at minimum you have to provide him with reasons – thus he could know what the deficiency in his application was and address it next time.
o Don’t have to go as far as having a hearing, but you have to give reason for his rejection.
INSPECTIONS AND RECOMMENDATIONS
-In the traditional doctrine, 2 functions were distinctive: investigating and recommending.
-Until the 1970s, the doctrine was clear: no hearings were required, and this proposition was a product of the general doctrine about the THRESHOLD – the functions were not judicial.
-We also see the lingering effects of this jurisprudence as recently as Knight, where L’Heureux-Dube stated that “a decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have that effect”.
-The doctrine changed in England during the 1970s in In re Pergamon Press [1971].
-Very shortly after Nicholson and Webb were decided, the issue came to be re-examined in a Canadian context in Abel
Re Abel and Advisory Review Board (1979) Ont Div Ct affirmed (1981) Ont CA
PRINCIPLE: if a non-dispositive decision or recommendation vitally affects/influences the final decision (rubber stamp decision) then a DOF applies.
-The key in determining whether a DOF applies:
(1) the degree of proximity between the investigation and the decision.
(2) the exposure of the person investigated to harm are matters of paramount concern.
Facts: Advisory Review Board is set up to annually review detentions of people who are found to be not guilty by reason of insanity. Process as per 29(1): Chair receives application, ARB conducts inquiry or can hold hearing to receive testimony, patient/representative may attend hearing, patient may call witnesses and cross examine, ARB may receive reports, and can interview people. In this case, lawyers requested disclosure from the ARB – wanted to see reports and other info on which ARB was going to make its decision. The ARB refused. Question – can the duty of fairness apply to these non-dispositive, recommendation type hearings? ARB doesn’t have final say in this – they make recommendation to the Lieutenant Gov. Council is saying that this is a rubber stamp situation, and the LG is not going to disagree with the ARB. Held: theBoard failed to meet the legal test of fairness. Not giving the applicant a chance to meet the case against him goes against the DOF, needed to give some form of disclosure. Although the chairman is not bound to follow the recommendations, it is most unlikely that he would go against the recommendation, therefore, the court says that the only chance to have the application granted is through the officer performing investigation.
-Test whether natural justice will apply: (1) degree of proximity (2) exposure of the person being investigated to the harm.
· “this application is virtually the only chance (albeit an annual chance) that the applicants have of avoiding a lifetime of incarceration. The effect of the recommendation of the ARB is for the applicants of the most vital concern”.
-The key in determining whether a DOF applies:
(1) the degree of proximity between the investigation and the decision.
(2) the exposure of the person investigated to harm are matters of paramount concern.
(1) the degree of proximity between the investigation and the decision.
· here the proximity is great.
· How many things could potentially intervene between the investigation and the decision?
o In this case, they said there was close proximity – not very many things could intervene to change the decision.
o If there were various things that the LG could take into acct when making their decision, then that would be a different case.
o Test of proximity – need to look at the connection between the decisions, if it is simply rubberstamping the courts will not disregard this, who has the practical authority to make the decision.
o It is important for counsel to look and see where the decision making power lies:
(i) if you are in front of the decision maker who has the power to make the decision to take away rights, privileges or interest, the DOF applies, and
(ii) if you are not in front of the decision maker, but you are in front of a body that has the practical ability to make the determination, the DOF also applies.
(2) the exposure of the person investigated to harm are matters of paramount concern”
· here there is significant harm to the person investigated.
-In practice, where is the actual determination being made?
· If you can argue that most of the decision is being made at the investigation stage then you can make an argument that DoF should apply.
Therefore
-What is apparent from Abel is that, even in the wake of Nicholson, not all recommendatory and investigative functions will attract an obligation of procedural fairness and this is reaffirmed in the Knight judgement, that a “decision of a preliminary nature will not in general trigger the duty to act fairly”
-While Abel DOES provide us with a useful functional test for discerning the “exceptional” cases in which that duty will be triggered, it is nonetheless not a bright line standard as the jurisprudence relating to those whose functions is primarily investigative illustrates graphically.
Dairy Producers’ Co-operative Ltd. v Saskatchewan (Human Rights Commission) [1994]
FACTS: following a complaint of workplace sexual harassment, the commission had appointed an officer to investigate and provide the commission with a report on whether there was a sufficient basis for recommending the appointment of a board of inquiry to adjudicate of the complaints. This was provided for in detail in regulations under the Act. The company was informed of the complaint and the investigating procedures. However, the company sought unsuccessfully to secure further and better particular of the complaint. Ultimately, the investigator reported that there was probable cause to believe that there had been an infringement of the Act. As a consequence, the commission, acting under its mandate, attempted to settle the matter. The company was provided with full details of the complaints and the evidence supporting them.
When the settlement failed, a board inquiry was established. Here, the company applied to the court for orders quashing the establishing of the board of inquiry and the investigator’s report that there was “probable cause” to believe that there had been an infringement of the Act. This application was based on allegations of breach of the rules of procedural fairness during the process leading up to the striking of the board of inquiry.
ISSUE: a) Did the investigating officer have a duty to act fairly? b) What is the effect of the “without prejudice” letter and addendum? c) What is the effect, if any, of the settlement negotiations?
HELD: Application dismissed. The investigator and the Commission acted appropriately throughout. There has been no breach of procedural fairness by either. If the applicant has any doubts as to the complaints, it must be met BEFORE the Board of Inquiry. It may confirm that the case is to meet is that set out in the addendum.
a) The investigating officer had NO power to affect the rights of the applicant. The Commission decided that if the matter were to proceed, it was decided by the Commission. So, if the complaint was not dismissed, there were to be settlement negotiations of the rights of the applicant. But this was not successfully completed and the Commission acted to set up the Board of Inquiry (even though it was not bound to do so). Thus, if the Commission decided to establish a Board of Inquiry, which it did, it had a duty to provide the applicant with the substance of the evidence against it before any hearing. Commission had a duty to act fairly!
b) Even though the applicant was provided with a highly detailed letter with a list of particulars prior to the negotiations, that was not acceptable. That objection was NOT renewable in argument and council.
c) If the applicant wished to impugn the conduct of the investigator in not giving the substance of the evidence to the applicant before her report and recommendation, and assuming the duty of procedural fairness existed, which I have found did not, it could have acted. Rather, the applicant chose to proceed with the negotiations, thus, waiving their right to object if it had one.
Therefore, the investigator and the Commission acted appropriately throughout. There has been no breach of procedural fairness by either. If the applicant has any doubts as to the complaints, it must be met BEFORE the Board of Inquiry. It may confirm that the case is to meet is that set out in the addendum.
NOTE: Irvine v Canada (Restrictive Trade Practices Commission) (1987)
3 factors to consider if fairness is required
(1) Character proceeding
(2) Nature of report and whether it is made public
(3) Penalty that will result when report is received.
Basically, what degree of procedural fairness needs to be done in order to render the rest of the decision fair.
EMERGENCIES
-On occasion, despite the fact that the basis for action will be the conduct of an individual and the consequences of that action, the imposition of sanctions or diminution in property rights, there will be no requirement of a prior hearing.
-That is in the case of emergencies.
-The leading SCC authority is:
R v Randolph (1966) SCR 260 (Can.)
Held: an interim order withdrawing the provision of mail services to an individual could be made without hearing when the statutory basis for making that decision was a belief that the mails were being used for criminal purposes.
“Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision”.
“... it is likely that the court will pay considerable deference to the relevant authority’s judgment as to the urgency of the situation”.
-NOTE: It is highly likely that the court will pay considerable deference to the relevant authority’s judgement as to the urgency of the situation.
LEGITIMATE EXPECTATION
-In certain circumstances, procedures will be required by reasons of expectations generated in an affected person and not be entirely contingent on a detached analysis of the statutory power in question.
-Legitimate expectation arises in situations where “an expectation of a hearing arising out of express representations, a practice of holding such hearings or a combination of the two”.
-Legitimate expectation is important because it reflects the need for a regular, predictable and certain government dealings with the public (Mount Sinai Hospital).
l Doctrine has been affirmed by SCC but arguments made under it are very rarely successful.
R v. Liverpool Corporation (1972) QB CA (UK)
Facts: municipal officials had given express undertakings to the association that the number of taxi licences would not be increased without a hearing, and, subsequently, following a hearing, that there would be no increase unless a private Act of Parliament was procured.
Held: Denning was prepared to make promises of the officials binding but did not do so because it was a policy decision to mandate public participation. Denning did ground an entitlement on the factual situation which laid the groundwork for legitimate expectation.
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990) 3 SCR 1170 (Man.)
PRINCIPLE: Doctrine of LE is an “extension of the rules of natural justice and procedural fairness”. Not required in this case. Ruling gave recognition of the doctrine.
Facts: residents were told that no new developments would be allowed without consulting the residents
Held: “The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation”.
“The planning and zoning process is an elaborate structure designed to enable all those affected not only to be consulted but to be heard. The appellant availed itself of this process by making representations before the Community Committee. Even if the conduct of this Committee raised expectations on the part of the appellant, I am of the opinion that this would not justify this Court in mounting onto the elaborate statutory scheme yet another process of consultation”.
-St. Bonifacegave the hope that fairness could be used in a legislative decision making case, however Canada Assistance Plan draws a distinction between these decisions and legislative decisions:
Reference re Canada Assistance Plan (1991) 2 SCR 525 (BC)
PRINCIPLE: no procedural or substantial LE applied to Parliament implementing legislation. Government should not be bound (i.e. by its predecessor).
Facts: A cost sharing program was entered into by Federal and provincial governments to share costs of provincial social assistance and welfare programs. Section 8 said the agreement would continue in force so long as provincial law was in effect subject to the termination by consent or unilaterally by either party on one year’s notice. The federal govt capped their level of funding through the passage of bill due to deficit policy decisions. BC sues them on the grounds that they had a LE. Issue – whether provinces can expect a legitimate expectation from the government?
Held: Legitimate expectation does not extend to such agreements.
l “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”. ... “A restraint on the executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself”.
l Federal govt power is held in check by the political and democratic devices and not the courts
Baker
PRINCIPLE: Legitimate expectation never generates a claim to a substantive outcome, only to hearing entitlements.
l In Canada substantive expectations can generate an entitlement not to substantive outcomes but procedural protections if the decision maker is of a mind to defeat those substantive expectations.
l This is where we diverge from UK authorities. Legitimate expectations can only guarantee more fairness, it cannot guarantee a particular result.
l Post Baker, it has been confirmed that legitimate expectations will not create substantive rights but will create procedural rights when certain outcomes are expected.
If a certain outcome is expected, then you may have a greater guarantee of procedure.
Furey v. Roman Catholic School Board for Conception Bay Centre (1991) NF court
PRINCIPLE: LE will apply to an administrative decision (i.e. school board) affecting procedure. Where an official guarantees an outcome rather than a procedure, legitimate expectation would not apply. “Legitimate expectation creates procedural, not substantive rights”. AND There must be actual reliance, i.e. must have knowledge to rely on it. Facts: In 1989, the school Board notified parents and discussed with parents changes to schools in the area and followed a set of guidelines for those interactions and the parents voted at the end of the discussions. The end result of the discussion was to leave open the school currently in consideration in this case. In 1991 a board member brought a motion to close the school based on discussions that the parents were not involved in. The guidelines were not observed in this case, opposed to the 1989 discussions, and the parents were not notified. Held: this was an administrative decision and attracted a duty of fairness which was not satisfied. Court granted certiorari and the matter to be reconsidered.
l “... the decision of the school board in closing Assumption Elementary was an administrative decision, and not in any sense legislative. My understanding of the authorities is that legislative decisions are usually general decisions of broad application. Administrative decisions usually deal with specifics, as was the case here”.
l “The 1989 procedure, and subsequent communications, could not do otherwise than raise in the minds of the parents the expectation that there would be procedural fairness in future decision making with respect to school closure”.
-On Appeal (parents not represented): court reversed the judgment on the basis that they did not find any evidence that the parents had believed that past practices would be followed in this instance (no affidavit was submitted).
-Example of SCC making effort to limit the doctrine of legitimate expectation and public law estoppels:
Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) (2001) SCC
PRINCIPLE: a new Minister not abiding by what the old Minister had promised does not give rise to LE, but the original guarantee must be abided by the new Minister (court trying to avoid LE terminology).
Facts: A hospital had been functioning in violation of its license. It was operating under permit for long term care beds, but was providing short term care beds. Discussions took place with the minister and it was agreed that, if the hospital relocated to Montreal, its licence would be regularized. The hospital engaged in extensive fund-raising efforts and relocated. When it sought to have its licence updated, a different minister in a different government refused, primarily on the basis that he did not want to commit the government financially to this. Hospital sought mandamus to compel the minister to issue the revised licence.
Quebec Superior Court: refused to make such an order on the basis that the doctrine of legitimate expectation could not be used to achieve substantive outcomes.
Quebec Court of Appeal: accepted this, but ruled that the hospital was entitled to a revised licence on the basis of the doctrine of public law estoppels.
SCC Held: (Bastarache J) it is not necessary to deal with public law estoppels and legitimate expectation. The case turned on the fact that earlier ministers had already made a decision conditional on the hospital relocating and this was a decision that the current minister did not have any basis for overturning. As a consequence, the hospital had an entitlement to the formal issuance of a licence in terms of that initial decision.
Per McLachlin C.J. and Binnie J.: The current minister had made a patently unreasonable decision and failed to act in a procedurally fair manner in refusing the licence.
l “In this case, as stated earlier, the Minister's decision will be set aside through the application of the ordinary rules of procedural fairness. There is no need to expand either the availability or content of procedural fairness because of the conduct of successive Ministers which amounts, in this respect, only to an aggravating circumstance. There is, in short, no need to resort to the doctrine of legitimate expectations to achieve procedural relief and, as explained, substantive relief is not available under this doctrine”.
-Summary – court tried to manoeuvre around the doctrine of legitimate expectation and estoppel. Council argued for LE to be extended to this case, the court refused (trying to limit it). The court also refused to allow an estoppels argument, it appeared because it would enable one government to bind the next.
CONSTITUTIONAL AND QUASI-CONSTITUTIONAL ENACTMENTS
-We turn now to a consideration of the THRESHOLDS to the invocation of the procedural rights contained in the Charter and the Canadian Bill of Rights.
-There are 2 dimensions to the identification of these THRESHOLDS
a. there is the matter of the general reach of both these statutes.
-what areas of administrative decision making do they affect?
b. there are the thresholds established in each statute by the specific provisions containing procedural guarantees.
- We will only look at b.
BILL OF RIGHTS: SPECIFIC PROCEDURAL THRESHOLDS
-The Bill of Rights is a federal statute, applicable only to federal law.
-Although the Bill of Rights remains in force, it has received little judicial notice since its passage in 1960.
-This is so in spite of the fact that it has been referred to as quasi-constitutional.
Differences between the Bill of Rights and the Charter:
(1) The use of the terms “individual” and “person” in the Bill of Rights as opposed to “everyone in the Charter
Irwin Toy v Quebec (1989) – SCC held that “life, liberty and security of the person” in section 7 are attributes possessed only by natural persons, hence ‘everyone’ does not include corporations.
(2) The inclusion of “enjoyment of property” in s.1(a) of Bill of Rights.
-Deliberately, section 7 did not include protection for “property” rights.
(3) The attachment to s.2(e) of procedural guarantees to the “determination of rights and obligations”.
-While the Canadian Bill of Rights does not contain an equivalent to section 1 of the Charter, it was held in Air Canada c. Canada that, in determining the demands of the principles of fundamental justice for the purposes of section 2(e), the court should engage in a section 1 style, balancing process akin to that set out in R v Oakesto determine whether such a reading is justifiable, and if it is, does that mean that the inclusion of s.1 of Charter was unnecessary?
NOTE: While initially, the terms “rights and obligations” in s.2(e) was interpreted narrowly by the courts and restricted to the taking away of “strict, legal rights”, all that changed with the resurrection of the Bill of Rights in Singh.
Bill of Rights s.1(a) and s.2(e)
-s.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 1(a) protects the enjoyment of property, the deprivation of which must occur through the due process of law.
-s.2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(e) 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;
· Section 2(e) guarantees a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations.
NOTE: The question of whether the procedural protections in ss.1(a) and s.2(e) of the Bill of Rights could apply to legislative proceedings, or whether they were subject to a threshold similar to that established for common law procedural fairness, was only definitely answered by the SCC decision in:
Authorson v Canada (Attorney General) (2003) 2 S.C.R. 40
PRINCIPLE: NO procedural rights (specifically notice and hearing) are guaranteed by s.2(e), Bill of Rights regarding the passage of an Act of Parliament (all that is guaranteed is that the Bill is read three times) AND s.1(a), Bill of Rights does NOT guarantee any substantive right’s to property (money).
(although this decision affected a specific group, veterans, it was considered a legislative decisions and thus no duty of fairness is owed (Wells) and (Canada Assistance Plan)).
Facts: In 1990, the DVA began paying interest on the veteran accounts, which it had been authorized to do for decades, pursuant to the Financial Administration Act, however, only began to do so post-1990. However, Parliament chose to try and limit the Crown's liability for past interest by enacting s. 5.1(4) of the Department of Veterans Affairs Act:
5.1(4) No claim shall be made after this subsection comes into force for or on account of interest on moneys held or administered by the Minister during any period prior to January 1, 1990 pursuant to subsection 41(1) of the Pension Act, subsection 15(2) of the War Veterans Allowance Act or any regulations made under section 5 of this Act. While the DVA had administered the funds, they had not been invested, nor had they accrued interest. Authorson, on behalf of the class action, sued the federal Crown alleging breach of fiduciary duty and sought the interest lost on the funds. He also claimed procedural rights (notice and hearing) to contest the passage of s.5.1(4).
Issue: The respondent claimed a right to notice and hearing to contest the passage of s. 5.1(4) of the Department of Veterans Affairs Act.
Answer: In 1960, and today, no such rights of notice and hearing to legislative action exists. Long-standing parliamentary tradition makes it clear that the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislation within Parliament's competence is unassailable.
· “A taxpayer could not claim procedural protections against a change in income tax rates that adversely affected him”.
· Wells v. Newfoundland (1999) – “... legislative 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.
· Reference re Canada Assistance Plan – “the rules governing procedural fairness do not apply to a body exercising purely legislative functions”.
-The submission that a court can compel Parliament to change its legislative procedures based on
the Bill of Rights must fail.
Procedural Rights :
-Section 2(3), Bill of Rights – s.2(3) does not impose upon Parliament the duty to provide a hearing before the enactment of legislation.
-Its protections are operative only in the application of law to individual circumstances in a proceeding before a court, tribunal or similar body.
· applies only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determines individual rights and obligations.
Substantive Due Process Rights in Property:
-Section 1(a), Bill of Rights - Parliament has the right to expropriate property if it made its intention clear.
-Here, to the disadvantage of the respondent, Parliament's expropriative intent was indeed clear and unambiguous.
-The provision, s. 5.1(4) leaves no doubt that the respondent has no claim for interest. Since he would have had no substantive right against a clear and unambiguous expropriation in 1960, the Bill of Rights can offer him no such protection today.
· Manitoba Fisheries Ltd. v. The Queen (1979) – Although the Court ordered compensation in that case, Ritchie J. made clear that Parliament could effect a taking without just compensation if it did so specifically.
o Thus, no guarantee of substantive due process.
Held: The respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights do not grant procedural rights in the process of legislative enactment. They do confer certain rights to notice and an opportunity to make submissions in the adjudication of individual rights and obligations, but no such rights are at issue in this appeal.
· s.5.1(4) of the Department of Veterans Affairs Act is not inconsistent with s.1(a) or s.2(3) of the Bill of Rights.
SECTION 7 OF CHARTER: SPECIFIC PROCEDURAL THRESHOLDS:
-Section 7 is the principal source of procedural protections.
-s.7 = 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 impact of section 7 of Charter on administrative proceedings was first considered by the SCC in Singh:
Singh v. Canada (Minister of Employment and Immigration) (1985) SCC
PRINCIPLE: s.7 applies to “everyone” in Canada (claimant refugees) AND s.7 does not always require an oral hearing.
Facts: The appellants were all convention refugee claimants who were landed in Canada (do not yet have Convention refugee status). Under the procedure then in place, the minister, acting on the advice of the Refugee Status Advisory Committee, had determined that they were not convention refugees. They all then applied to the Immigration Appeal Board for a redetermination of their status. However, their applications were not referred to an oral hearing because the board determined on the strength of the material submitted by the applicants that there were no reasonable grounds for believing that they could establish their claims at a hearing. The appellants then applied to the Federal Court of Appeal for review of the board’s decision alleging that the statutory scheme infringed section 7 of the Charter. The applications failed and the appellants secured leave to appeal to the SCC.
Issues:
(a) The appellants are not at this stage entitled to assert rights as Convention refugees; their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not.
(b) The appellants claim they did not have a fair opportunity to present their refugee status claims or to know the case they had to meet.
SCC Held: The adjudication procedures of the Immigration Act were inconsistent with s.7 of the Charter. A case with such a serious consequence should have an oral hearing and give claimants reasons for denial in order for them to respond appropriately on appeal. Utilitarian reasons (economic or time constraints) will not justify s.7 to be limited by s.1 on this occasion. Decision of the Immigration Appeal Board set aside and application remanded to the Board.
Wilson J –The Application of the Charter
Are the Appellants entitled to the protection of s.7?:
“…I am of the view that the rights which the appellants are seeking to assert are ones which entitle them to the protection of s. 7 of the Charter. It is necessary therefore to consider whether the procedures for the determination of refugee status as set out in the Act accord with fundamental justice”.
· “everyone” in s.7 includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.
· For purposes of the present appeal it is not necessary, in my opinion, to consider whether such an expansive approach to "security of the person" in s. 7 of the Charter should be taken. It seems to me that even if one adopts the narrow approach advocated by counsel for the Minister, "security of the person" must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. … In my view, the denial of such a right must amount to a deprivation of security of the person within the meaning of s. 7.
Do the procedures set out in the Immigration Act for the adjudication of refugee status claims meet the test of procedural fairness (test in Duke v The Queen (1972) SCR)?:
-Concept of judicial fairness set out in Duke v The Queen – “without attempting to formulate any final definitions of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case”.
· “… procedural fairness may demand different things in different contexts. Thus it is possible that an oral hearing before the decision-maker is not required in every case in which s. 7 of the Charter is called into play. However, I must confess to some difficulty in reconciling Mr. Bowie's argument that an oral hearing is not required in the context of this case with the interpretation he seeks to put on s. 7. If "the right to life, liberty and security of the person" is properly construed as relating only to matters such as death, physical liberty and physical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairness would invariably require an oral hearing. I am prepared, nevertheless, to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances”.
· “In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing”.
· As I have suggested, the absence of an oral hearing need not be inconsistent with fundamental justice in every case. My greatest concern about the procedural scheme envisaged by ss. 45 to 48 and 70 and 71 of the Immigration Act, 1976 is not, therefore, with the absence of an oral hearing in and of itself, but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet.
o problem in this statutory scheme is that applicant does not have a chance to state their case and does not know the case he has to meet.
o it is an adversarial proceeding and applicant is in unfair position because he must establish on balance of probabilities that Minister was wrong without having knowledge of Minister’s case.
Opportunity to know the case they had to meet?:
· The applicant is entitled to submit whatever relevant material he wishes to the Board but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister's case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of "fundamental justice" as set out in s. 7 of the Charter.
· Under the Act as it presently stands, however, a refugee claimant may never have the opportunity to make an effective challenge to the information or policies which underlie the Minister's decision to reject his claim. Because s. 71(1) requires the Immigration Appeal Board to reject an application for redetermination unless it is of the view that it is more likely than not that the applicant will be able to succeed.
· I am accordingly of the view that the procedures for determination of refugee status claims as set out in the Immigration Act, 1976 do not accord refugee claimants fundamental justice in the adjudication of those claims and are thus incompatible with s. 7 of the Charter. It is therefore necessary to go forward to the third stage of the inquiry and determine whether the shortcomings of these procedures in relation to the standards set out by s. 7 constitute reasonable limits which can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter.
Can the procedures by saved under s.1 of the Charter?:
Council for the Minister argued that the Immigration Appeal Board was already subjected to a considerable strain in terms of the volume of cases which it was required to hear and that a requirement of an oral hearing in every case where an application for redetermination of a refugee claim has been made would constitute an unreasonable burden on the Board's resources.
· Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr. Bowie can constitute a justification for a limitation on the rights set out in the Charter. Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1.
· Even if the cost of compliance with fundamental justice is a factor to which the courts world give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1.
o Balancing of interests – individual’s interests and the governments.
Beetz J – Canadian Bill of Rights:
-Like my colleague Madame Justice Wilson, whose reasons for judgment I have had the advantage of reading, I conclude that these appeals ought to be allowed.
-But I do so on the basis of the Canadian Bill of Rights … more particularly with s.2(e).
· What remains to be decided is whether in the cases at bar, the appellants were afforded "a fair hearing in accordance with the principles of fundamental justice". … I have no doubt that they were not.
· What the appellants are mainly justified of complaining about in my view is that their claims to refugee status have been finally denied without their having been afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claim on the merits. They have actually been heard by the one official who has nothing to say in the matter, a senior immigration officer.
· I do not wish to suggest that the principles of fundamental justice will impose an oral hearing in all cases.
· 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.
Notes:
· one consequence of Singh was that it rendered the system of refugee claim determinations immensely expensive and unworkable.
o Is this the kind of consideration one that should at all affect courts in their judgments as to the protections afforded by section 7?
· Now, Canada will no longer accept as refugee claimants those who arrived here by way of a “third safe country”.
o Does Singh provide any basis for a claim that this provision is a violation of the Charter? Can Canada turn away a refugee claimant without a hearing in such circumstances?
· Wilson J emphasized that “life, liberty and security of the person” are three distinct interests, and that it is incumbent on the Court to give meaning to each of these elements.
Chiarelli v. Canada (Minister of Justice) (1992) 1 SCR 711 (Can)
PRINCIPLE: Balance of interest under section 7 – an individual has an interest in a fair procedure, however, the state also has an interest in conducting national security and criminal intelligence investigations and in protecting police sources.
Facts: Chiarelli, a permanent resident of Canada, was deported because of a conviction for an offence that carried with it the possibility of a term of imprisonment for five or more years. In such cases, a deportation order was automatic, however there was a right of appeal to the Immigration Appeal Board. C commenced an appeal, but before it could be heard a report was made to the Security Intelligence Review Committee (SIRC) that if C is allowed to remain in Canada, he would be involved in serious organized crime. Part of the Security Intelligence Service Act provided that, while persons were entitled to a hearing, they were not entitled “to be present during, to have access to or to comment on the representations of any person”.
SCC Held: section 7 rights not violated on a balance of interests calculation under section 7. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire the information (interest in protecting how the police received information to base their decision on).
· “Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure followed by the Review Committee in this case did not violate principles of fundamental justice.
NOTE: Would it have been more appropriate to have dealt with the issue of access to relevant information in the context of a section 1 justification exercise rather than as part of a balancing of interests calculation under section 7?
Wilson v British Columbia (Medical Services Commission) (1988) (BC CA)
PRINCIPLE: Liberty, in s.7, is not confined to mere freedom of bodily harm. Section 7 does not protect property or pure economic rights, however, will cover … livelihood which may have an incidental economic component.
Facts: BC wanted to limit the total number of practicing doctors and places where they could work. The practitioners were assigned a number in order to bill for services under the health care plan. New doctors had to apply to commission in order to receive a number and paid for services. The plaintiff’s were doctors whose personal circumstances presented different elements of the claim; for example, some sought to come from outside the province and had been denied ‘practitioner numbers”, while others had been granted numbers subject to geographic restrictions. “The appellants’ case is that the government has deprived them of the opportunity to pursue their profession, or has restricted their mobility in such a way as to deprive them of “liberty” in the broad sense in which that freedom is to be interpreted under the Charter.
Issue: The question then arises whether “liberty” in s.7 is broad enough to encompass the opportunity of a qualified and licensed doctor to practice medicine in BC without restraint as to place, time or purpose, even though there is an incidental economic component to the right being asserted (i.e. the doctors bill the government for each patient).
Held: the scheme is so procedurally flawed that it cannot stand.
“Liberty” within the meaning of s.7 is not confined to mere freedom from bodily restraint. It does not, however, extend to protect property or pure economic rights. It may embrace individual freedom of movement, including the right to choose one’s occupation and where to pursue it, subject to the right of the state to impose, in accordance with the principles of fundamental justice, legitimate and reasonable restrictions on the activities of individuals.
Reason why this issue is not ‘economical’:
· “In considering the economic interests involved we must not overlook the fact that the plan does not guarantee an income to doctors. It ensures that a percentage of the bills submitted by physicians for medical services performed for insured patients will be paid”.
· “Furthermore, we are not persuaded that the appellants are pursuing a mere economic interest in the nature of an income guaranteed by the government. The impugned enactments go beyond mere economic concerns or regulation within the profession”.
Section 6 Mobility rights or section 7?:
· “It may be argued that if movement within the province is a protected freedom that such right must be found in s.6. We do not agree. The Charter is not a statute containing a number of watertight compartments. It is not a document which is to be given a narrow and legalistic interpretation”.
· “We are of the opinion, therefore, that the geographic restrictions imposed by government on the right to practice medicine in BC constitute a violation of the right to liberty protected by s.7 unless that right has been removed in accordance with the principles of fundamental justice, or unless the deprivation can be demonstrably justified under s.1 of the Charter”.
o Therefore there is a right to practice ones chosen profession.
o the court says that the govt needs to provide reasons for denying applications and needs to distribute information about other doctors locations in the province à cannot be arbitrary deprivation which is what court was upset about.
Critique à this decision is coming from another self-regulated profession therefore the courts could be protecting them.
New Brunswick (Minister of Health and Community Services) v. G(J.) (1999) SCC
PRINCIPLE: security of the person under s.7 is protects physical and psychological interference (i.e. separation of child from parent).
Facts: Administrative proceeding in which mother was at risk of losing custody of children for another 6 months. The question is whether fundamental justice requires her to be provided with legal aid? However for this to be determined, it had to be found that custody affected her security of the person.
SCC Held: The threshold for violation of security of person had been crossed because separation of parent and child has profound effects on both. A hearing which may allow a parent to lose their child is serious. Right to security of person protects both the physical and psychological integrity of the individual (Morgentaler). Thus, she is entitled to state funded council.
· Removing children from parent would constitute a serious interference with the psychological integrity of the parent.
SCC found she should be provided with state funded council. 3 factors to be considered:
(1) Seriousness of interests at stake
o Here they say 6 months is long time to be separated from parents
o This is definitely a serious issue at stake
(2) Complexity of the proceedings
o She wouldn’t be able to represent herself
(3) Parents’ capabilities
o Would they be able to put the case together on their own?
o This case was adversarial and complicated – everyone else was represented by council and interveners were also involved
-Minority: agreed that security threshold had been breached, and argued that liberty as well had been breached b/c it denied the parent the right to make decisions on behalf of children and guide their upbringing.
NOTE Remedy ultimately leaves this as a discretionary choice of the trial judge.
· They don’t have to give council if the costs are too extreme.
Blencoe v. British Columbia (Human Rights Commission) (2000) 2 SCR 307 BC
Facts: Blencoe was minister in BC govt and accused of sexually harassing women. He was removed from Cabinet and women filed complaint with BC Council of Human Rights. The investigation into claims didn’t conclude for 30 months, and Blencoe applied for judicial review to have the complaints stayed because he claimed the Commission had lost jurisdiction due to unreasonable delay in processing the complaints. The respondent alleged that the unreasonable delay caused serious prejudice to him and his family that amounted to an abuse of process and a denial of natural justice. He argued that there was unreasonable delay and their process prejudiced him and his family, and was therefore a violation of s.7 rights
Held: Appeal allowed. The respondent’s s.7 rights were not violated nor did the conduct of the Commission amount to an abuse of process.
(A)Does the Charter apply to the actions of the British Columbia Human Rights Commission?
The Charter applies to the actions of the commission.
· The mere fact that a body is independent of government is not determinative of the Charter's application nor is the fact that a statutory provision is not impugned.
· Bodies exercising statutory authority are bound by the Charter even though they may be independent of government (confirmed in Eldridge - hospital).
· With respect to the claim that the Commission exercises judicial functions and is thereby not subject to the Charter – rejected. Slaight Communications Inc. held that the Charter applies to the orders of a statutorily appointed labour arbitrator. The facts in Slaight and the case at bar share at least one salient feature: the labour arbitrator (in Slaight) and the Commission (in the case at bar) each exercise governmental powers conferred upon them by a legislative body.
(B) Have the respondent's s. 7 rights to liberty and security of the person been violated by state-caused delay in the human rights proceedings?
-The court treats ‘life, liberty and security of the person’ as three different rights.
-The protection of security of the person extends beyond the criminal law (New Brunswick (Minister of Health and Community Services) v G(J)). Section 7 can extend beyond the sphere of criminal law, at least where there is “state action which directly engages the justice system and its administration”.
-Liberty interest – “the autonomy protected by section 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence”
· The state in this case has not prevented Blencoe from making any fundamental personal choices.
· Thus, the interests sought to be protected do not fall within the ‘liberty’ interest protected.
· Thus, liberty argument fails, government is not preventing him from making life choices.
-Security of the person - “security of the person has been held to protect both the physical and psychological integrity of the individual” and where psychological integrity of person is at issue “security of the person is restricted to serious state imposed psychological stress (R v Morgentaler)”.
· Stress, anxiety and stigma may arise from any criminal trial, human rights allegation, or even civil action, regardless of whether the trial or process occurs within a reasonable time.
· While it is incontrovertible that the respondent has suffered serious prejudice in connection with the allegations of sexual harassment against him, there must be a sufficient causal connection between the state-caused delay and the prejudice suffered by the respondent for s. 7 to be triggered. à doesn’t really matter what is found here b/c of next finding.
· Thus, publicity is what caused his prejudice which is NOT a state action.
o Bastarache J detailed the impact of the complaints and proceedings on Blencoe’s life and that of his family but noted that these were mostly consequences that had occurred before there was any delay.
· Serious psychological stress – the stress, stigma and anxiety suffered by Blencoe did not deprive his right to security of the person. The framers of the Charter chose to use LLS which limits s. 7 to these interests.
-Summary of Liberty/Security interest:
“Few interests are as compelling as, and basic to individual autonomy than, a woman's choice to terminate her pregnancy, an individual's decision to terminate his or her life, the right to raise one's children, and the ability of sexual assault victims to seek therapy without fear of their private records being disclosed. Such interests are indeed basic to individual dignity (note: these are all individual choices which the government is restricting). But the alleged right to be free from stigma associated with a human rights complaint does not fall within this narrow sphere. The state has not interfered with the respondent's right to make decisions that affect his fundamental being. The prejudice to the respondent in this case, as recognized by Lowry J., at para. 10, is essentially confined to his personal hardship. He is not "employable" as a politician, he and his family have moved residences twice, his financial resources are depleted, and he has suffered physically and psychologically. However, the state has not interfered with the respondent and his family's ability to make essential life choices. To accept that the prejudice suffered by the respondent in this case amounts to state interference with his security of the person would be to stretch the meaning of this right”.
(C) If the respondent's s. 7 rights were not engaged, or if the state's actions were in accordance with the principles of fundamental justice, was the respondent entitled to a remedy pursuant to administrative law principles where the delay did not interfere with the right to a fair hearing?
· In admin law, there must be proof of significant prejudice which results from an unacceptable delay and in this case, proof of prejudice has not be demonstrated to be of sufficient magnitude to impact on the fairness of the hearing (does not impact getting a fair hearing).
· Need to balance the personal claim and the general public interest à not fair to the original complainants to cease the proceeding, there is a public interest in having the claims heard and adjudicated.
(D) If the respondent is entitled to Charter or admin law remedy, was the stay of proceedings an appropriate remedy for this case? / Was the delay unacceptable?
· The Commission handled this complaint in the same way that it handles other complaints. B had to show that delay was unacceptable to the point of being so oppressive as to taint the proceedings à he did not do this.
o The basic finding was that there was continuous movement on the file
CONCLUSION
-It cannot be said that the respondent’s s.7 rights were violated nor that the conduct of the Commission amounted to an abuse of process.
-However, I emphasize that nothing in these reasons had any bearing on the merits of the case before the Tribunal.
-The fact that most human rights commissions experience serious delays will not justify breaches of the principles of natural justice.
-I would allow the appeal. The CA decision is set aside and the Tribunal should proceed with the hearing of the Complaints on their merits.
-Due to the lack of diligence displayed by the Commission, under the court’s discretion under s.47 of Supreme Court Act to award costs against the Commission in favour of Blencoe, Willis, and Schell.
Dissent:
· should have first looked to admin law delay as opposed to Charter but agree that stay of proceedings was not warranted.
· Wanted to come up with a remedy, but ran into the same problem as majority.
o Wanted to grant him stay of proceeding but this would be unfair to the plaintiffs bringing the claim.
· The delay affected the procedural fairness, however even if this was found, what type of remedy could have been awarded b/c it is not fair to stay the proceeding.
o delay affected not only the proceeding, but B’s life which is wrong.
· An expedited hearing is the most that they could have ordered.
GENERAL PROCEDURAL STATUTES
-Like the other sources of procedures considered in this chapter, general procedural statutes comprise THRESSHOLDS governing the application of their specific procedural protections.
-These Thresholds are:
Ontario Statutory Powers Procedure Act (SPPA) (p251)
Alberta Administrative Procedures and Jurisdiction Act
British Columbia Administrative Tribunals Act
Quebec Act Respecting Administrative Justice
The Level and Choice of Procedures
LEVEL OF PROCEDURES
-Review:
àWhereas the rules of natural justice had previously required procedural safeguards only where decision makers exercised judicial or quasi-judicial functions, common law procedural fairness requirements extended beyond these to administrative decisions (Nicholson)
àNicholson also made clear that what constitutes sufficient procedural fairness protections –the level or content of procedural fairness required by the common law – depends on the context in which a specific decision is made.
àIndeed, the procedural fairness obligations of decision makers lie on the spectrum between the trial-type procedures (in-person hearing, full disclosure rights) appropriate for decision-makers exercising judicial functions and more informal procedures (written notice and opportunity to comment) as in Webb.
àIn the cases since Nicholson, the courts have incrementally identified factors or considerations to assist in their assessment of how full the procedural obligations of specific decision-makers must be – where they fall on the procedural fairness spectrum. Unsurprisingly, many of these factors are discussed in ch3 on the common law threshold because both threshold and content analysis relate to a decision-maker’s position on the spectrum.
àIn Baker, the SCC sought, for the first time, to law out a methodology to determine the appropriate content of procedural fairness by setting out a non-exhaustive list of 5 factors or considerations to guide lower courts and decision-makers confronting this question.
-We move now to a consideration of the content of procedural entitlements once the threshold to the assertion of any procedural claims has been crossed.
· At this stage we have covered threshold analyses and are now looking at “how much” fairness is due in any situation.
-As described in Knight, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.
-The requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration.
-Generally, the legislature decides the content of the duty of fairness in setting up the tribunals and their governing statutes, and the tribunals then further decide the specific contents of the duty of fairness in setting up the specific rules.
Baker
5 Factors to look at when deciding how much fairness is needed (i.e. what procedure is needed):
(1) Nature of decision being made
· The more the procedure and the more it looks like a judicial type-decision/closer to trial model, the more a DoF will be required.
(2) Nature of the statutory scheme
· If it’s the final decision it requires more fairness than a preliminary decision.
o When the decision is determinative of the issue and further requests cannot be submitted.
· If there is right to appeal, there will be less fairness owed.
o Greater procedural protections when no appeal procedure is provided within the statute.
(3) Importance of decision to individual affected
· More important = more fairness required.
o The more important the decision is to the lives of those affected and the greater its impact on that person the more stringent the procedural protection that will be mandated.
· Tricky thing is figuring out what is important in the context.
(4) Legitimate expectations
· Can only give more procedure – doesn’t guarantee substantive outcomes.
· if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness, as well if a claimant has a legitimate expectation that a certain result will be reached in their case, fairness may require more extensive procedural rights than would otherwise be accorded.
(5) Take into account the decisions made by the tribunal (choices of procedure)
· 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.
· Some attention to consequences of requiring more procedure can also impact fairness for other claimants.
o Think of Singh – if oral hearing is required for every refugee claimant, how would this impact the rights of other future refugees? Maybe longer waits?
o Might allowing more procedure actually undermine fairness in the future?
A PERSPECTIVE
-The framework articulated by the SCC in Baker enables courts and tribunals to assess, in a coherent and systematic manner, where on the spectrum of procedures required by the common law duty of fairness – from notice and comment procedures to trial-type hearings – a particular decision should fall.
-As a bridge to understanding pre-hearing, hearing, and post-hearing procedures (including notice); in-person hearings; discovery; disclosure; representation; and reasons, consider the following perspectives regarding: what are the justifications for giving hearings?
-The meaning of “due process of law” has varied over time and so has the approach of the courts.
THE CHOICE OF PROCEDURES
-We now move to a consideration of the content of procedural entitlements once the threshold to the assertion of any procedural claims has been crossed.
-The nature and extent of procedural claims that are made by applicants for JR does not emerge fully from the discussion of sources and thresholds from ch3.
-Further elaboration is required that focuses on particular issues of contemporary currency – anticipatory rights in rulemaking and, more generally, the procedural dimensions arising out from pressures generated within certain tribunals for institutional responsibility for and influence on decisions in particular matters.
-Indeed, as the threshold for the assertion of procedural claims has been lowered, the issue of procedural content has become that much more prominent and perhaps controversial.
-The lowering of the threshold also coincided with an escalating crisis of confidence in the adversarial model as reflected in the processes of the ordinary courts of the land (increased costs of litigation). There has also been greater openness or transparency in the way in which administrative agencies and tribunals do business (access to info, and more timely access to all material to upcoming hearings and reasons for decision)...
-Accommodations had to be made to reflect all these realities. As a consequence, courts engaged in JR of administrative action on procedural grounds were expected to be much more creative and expansive in their thinking about issues of procedural design.
-The Charter added further complexity to this domain. The difficult question is: do principles of fundamental justice call for greater or different procedures than the common law rules of natural justice or procedural fairness?
-Faced with all of the uncertainties generated by the common, the Canadian Bill of Rights, and the Charter as to the detail of procedural obligations, decision-makers themselves have more and more come to realize the importance of procedural design.
-Indeed, even prior to the emergence of the procedural fairness doctrine, there was much debate about the desirability of legislated general procedural codes (the SPPA)
-Q – what are the general principles or ways of thinking that should govern choice of procedures?
-The U.S.A cases illustrate this: Goldberg v Kelly [1970]; Matthews v Eldridge [1976]
Suresh v. Canada (Minister of Citizenship and Immigration) (2002) 1 SCR 3 (Can)
PRINCIPLE: case follows the 5 Baker factors to conclude that s.7 required procedural protections, but not to the extent of a full oral hearing where torture upon deportation was possible.
Facts: S was granted refugee status in 1991; then applied for permanent residence status. He was refused and a security certificate under section 53(1) of the Immigration Act was issued to the effect that S was a danger to the security of Canada. Issuance of a security certificate is based on info. from Canadian Security Intelligence Service (CSIS). The info which the certificate is based on is secret and not disclosed to the “accused” – the judge sees evidence and assesses whether it is reasonable. In this case the judge says it is reasonable. If S was returned to Sri Lanka there is potential for him to face torture. Minister sent notification to S that she is considering issuing a “Danger Opinion” – this essentially constitutes notice. She would have to find that he is a danger to the security of Canada – if she finds that he is, she could send him back to Sri Lanka notwithstanding the possibility of torture. S sends in documents to be considered, indicating the torture of Tamil Tigers by the government, and also sent in written arguments. An immigration officer also submitted a memo based on CSIS intelligence to which S has no access. Said he would not face torture on his return, and that he would be a danger to the security of Canada if he were to stay. NOTE that the primary question for the Minister at this stage is whether S is a danger to security of Canada. Minister issues the Danger Opinion – s.53(1). This is when he appeals for JR. Fed Crt – dismissed. FCA – Dismissed. Now it’s before SCC.
Issue: Question of procedural fairness and s.7 fundamental justice. Was the Danger Opinion made in accordance with principles of Fundamental Justice?
Held: Based on the 5 Baker factors below, the court was of the opinion that the procedural protections required by s. 7 in this case do not extend to the level of requiring the Minister to conduct a full oral hearing or a complete judicial process. However, they require more than the procedure required by the Act under s. 53(1)(b), that is, none, and they require more than Suresh received.
· Held – NO the decision was NOT made in accordance to principles of fundamental justice.
· Decisions sent back to Minster for redetermination.
· The problem was that there were not adequate procedural safeguards.
o S didn't have access to the case that was against him that he had to meet.
o Principle of natural justice includes an opportunity to know and meet the case against you – i.e. an opportunity to be heard.
o He does not have to have an oral hearing, but does have to have an opportunity to make submissions to argue the case against him.
-Section 7 protects substantive as well as procedural rights, therefore it is appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of section 7.
- The factors determining the content of DoF:
1) Nature of decision (i.e. administrative or judicial type) – nature of decision doesn’t indicate weak or strong procedural safe guards.
· “The nature of the decision to deport bears some resemblance to judicial proceedings. While the decision is of a serious nature and made by an individual on the basis of evaluating and weighing risks, it is also a decision to which discretion must attach. The Minister must evaluate not only the past actions of and present dangers to an individual under her consideration pursuant to s. 53, but also the future behaviour of that individual. We conclude that the nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards”.
2) Nature of the statutory scheme – suggests the need for strong procedural safeguards.
· “Under s. 53(1)(b) ... there is no provision for a hearing, no requirement of written or oral reasons, no right of appeal -- no procedures at all, in fact. As L'Heureux-Dubé J. stated in Baker, supra, "[g]reater procedural protections ... 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) Importance of decision to individuals – this factor militates in favour of heightened procedural protections under s.53(1)(b).
· “... the appellant's interest in remaining in Canada is highly significant, not only because of his status as a Convention refugee, but also because of the risk of torture he may face on return to Sri Lanka as a member of the LTTE. The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter. Deportation from Canada engages serious personal, financial and emotional consequences. It follows that this factor militates in favour of heightened procedural protections under s. 53(1)(b). Where, as here, a person subject to a s. 53(1)(b) opinion may be subjected to torture, this factor requires even more substantial protections”.
4) Legitimate expectation – this is not taken into account, Baker says that this is not always a relevant factor.
5) Choice of procedures – minister is allowed a lot of discretion in this case therefore a lot of deference must be provided, the legislature knew that these types of decisions would be very serious and as such left it to minister to determine.
· “In this case, the Minister is free under the terms of the statute to choose whatever procedures she wishes in making a s. 53(1)(b) decision. As noted above, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. This factor also suggests a degree of deference to the Minister's choice of procedures since Parliament has signaled the difficulty of the decision by leaving to the Minister the choice of how best to make it. At the same time, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like Suresh, who if deported may face torture and violations of human rights in which Canada can neither constitutionally, nor under its international treaty obligations, be complicit”.
-Suresh had to make a prima facie case that he would face torture if deported which Suresh did and then the Minister has to provide him with the case to be met and opportunity to make submissions against them before order is given.
-In this case, no procedures were required by the Act, and the following is what must be given to a person facing deportation under s. 53(1)(b) in the similar circumstance:
· Individual must be informed of the case to be met.
· Individual must be given opportunity to respond to the case presented by Minister and challenge the information of the Minister where issues of validity arise by presenting facts.
· Minister must provide written reasons for their decision that must find that there are no substantial grounds to believe that the individual who is subject to s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment.
-These procedural protections may not be the ones required in every s. 53(1) challenge as the content of procedural protections vary depending on the facts of the situation.
Ahani v. Canada (Minister of Citizenship and Immigration) (2002) SCC
PRINCIPLE: informing one of the case and giving an opportunity to respond satisfied the procedural fairness of a deportation case where torture was not proven.
Facts: Ahani gained refugee status in 1991, and shortly after this it was discovered that Ahani was a trained assassin for Iranian Minister of Intelligence and Security. Following this was the fear that Ahani was a danger to other Canadians lives. The minister issued a s.41(1) security certificate alleging Ahani was a member of an inadmissible class.
Held: Ahani could not make out a prima facie case that he would face torture upon deportation. Ahani was informed of what he had to do in terms of making out a case and making written submissions and was even provided with the case that he had to meet. Ahani faced minimal danger of torture and he had been fully informed of the case and had the opportunity to respond and as such, the content of procedural fairness was not violated
These two cases confirm that belief that the common law analysis of what is the content of the procedural fairness underpins the constitutional analysis.
GENERAL STATUTES ABOUT PROCEDURES RELEVANT STATUTES:
-Statutory Powers Procedure Act (Ontario)(SPPA)(p.279)
-In each statute that establishes a tribunal, it is necessary to include what fairness individuals are entitled to.
-A criticism of this practice is that all statutes carry the same provisions.
-Therefore in 1971 the legislature enacted the SPPA which sets out a minimum procedural code that brings consistency across administrative proceedings.
-It dictates what a hearing should look like if you are going to have a trial.
-The act was created as a response to the McRuer commission which rejected leaving development of the law to the courts in this area because “that development will not be systematic, and it will inevitably be a slow process attended by much uncertainty”.
-The main problem with the SPPA is that it was enacted prior to Nicholson which means that it is premised on assumptions of common law that are no longer accurate such as the distinction between judicial and administrative proceedings which is no longer a relevant distinction.
-Therefore the SPPA is now in a state where it is difficult to know if it applies or not.
-s. 3 – Application of the act:
-This section gives the application of the act and states that it applies to statutory power of decisions where a tribunal is required by or under the Act or otherwise by law to hold a hearing.
SPECIFIC CONTENT ISSUES
-We have divided our consideration into 2 issues
1. We look at pre-hearing content issues, which include
- issues of notice,
- claims to pre-hearing disclosure or discovery of evidence to be relied on, and
- delay in the processing of administrative proceedings.
2. Involves a study of the nature of the actual hearing itself:
-Should it be oral or written or a mixture of both?
-Are the parties entitled to representation by counsel, an agency, or a friend?
-If there is an oral hearing, is there a right to cross-examine the other witness?
-Then, we approach the issue of evidence in the administrative process where our main concerns will be the types of evidence that a decision-maker may rely on and the extent of the decision-maker’s obligation to reveal that evidence in a variety of situations.
-We will examine confidentiality claims as advanced in a variety of situations.
-Finally, we tease out the detail of the duty to provide reasons, a topic already encountered in our consideration of Baker.
Summary:
a. PRE-HEARING CONTENT ISSUES:
-Notice – what notice must be given to parties that a change is about to take place and how individuals can take part in process
-Discovery – what information will be given to the other side. What information that is before the board or tribunal is going to the applicant, is it the full information or just a summary.
-Delay – in the processing of administrative proceedings.
b. NATURE OF THE ACTUAL HEARING:
-Oral hearings – a right to oral or written hearing or a mixture of both.
-Open hearings – assuming that there is to be an oral hearing.
-The right to counsel – are the parties entitled to representation by counsel, an agent or friend
-Disclosure – info. shown to both parties.
-Official notice – external information which a tribunal feels is relevant.
-Admissibility of evidence – what procedures may and should agencies use for fact finding.
-Cross-examination – If there is an oral hearing, is there a right to cross-examine the other witnesses.
c. POST-HEARING ISSUES:
-Duty to give reasons – is there a right to written or oral reasons.
-Effect of breach of the duty to give reasons – the decision may be set aside.
PRE-HEARING CONTENT ISSUES:
NOTICE
-Two forms of notice are common – written and oral.
-Written is the more usual.
-The SPPA seems to assume the notice it requires will be written or electronic.
-Personal service – that is, notice handed to or told to the party in some personal way – is another norm that the courts will probably require, unless the context permits giving notice in some other way.
-Some agencies, i.e. environmental assessment board – make decisions that affect large and indefinite numbers of persons which usually requires some form of public notice (i.e. advertisements in newspapers, libraries, radio, tv, etc.).
-If no legislative specification is made, presumably the courts will permit notice to be given in some public way – ads in newspapers – although recent Canadian authority is sparse.
-It was held in Re Central Ontario Coalition, that notice must be reasonable, in the sense that it conveys the real intentions of the giver and enables the person to whom it is directed to know what he must meet.
-SPPA – s.6(1); s.24(1); s.7(1)
NOTE:
SPPA
-Notice of hearing - s.6(1) – the parties to a proceeding must be given reasonable notice of the hearing by the tribunal
-Notice, etc. - s.24(1) Where a tribunal is of the opinion that because the parties to any proceeding before it are so numerous or for any reason, it is impracticable,
(a) to give notice of the hearing; or
(b) to send its decision and the material mentioned in section 18,
To all or any parties ... by public advertisement or otherwise as the tribunal may direct.
-Effect of non-attendance at hearing after due notice - s.7(1) ... the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.
NOTE: the following case law are of ‘Public notice’
Re Hardy and Minister of Education (1985) 22 DLR (4th) 394 (BC SC)
PRINCIPLE: if a decision (school closing) affects a large amount of people, notice will be satisfied by letting it be known throughout the general district. Unreasonable to inform everyone individually.
“It would be unreasonable to suggest that every resident in the school district must be personally apprised of the intention to close the school. What is required, it seems to me, is that the proposed closure be made known throughout the district generally so that it can reasonably be expected to come to the attention of interested persons, and that they be accorded sufficient time and opportunity to fairly present their side of the case before a final decision is taken”.
Re Central Ontario Coalition and Ontario Hydro (1984) 10 DLR (4th) 341 (Ont.Div.Ct.)
PRINCIPLE: There must be reasonable notice, based on a reasonable person. Public notice must be clear in relation to its subject matter judged by a reasonable person test.
Facts: Concerned the notice requirements for decisions about the location of electrical transmission lines, particularly large high-voltage lines. The board made an order of notice that included personal service on some municipalities and individuals, and for publication in newspapers. The electrical lines were described simply as being in “southwestern Ontario”, and no maps were included. The board then decided the line should go east. A group of people living/owning properties in this path sought judicial review on the ground that the phrase “southwestern Ontario” did not denote the alternative route.
Held: claimant succeeded.
“... would a reasonable person have understood it, in all the circumstances, notwithstanding its inadequacy?”
Remedy: the effect of the failure to give adequate notice was to set aside the decisions made at the hearing.
Re City of Winnipeg and Torchinsky (1981) 129 DLR (3d) 170 (Man.QB)
PRINCIPLE: a late response of a notice will not be given an exception.
Facts: A new assessment was made of Torchinsky’s property and on April 10, 1981 the assessor mailed her notice, which described the right of appeal and gave May 12 as the date for beginning the hearings. This notice did not arrive until May 12. Torchinsky gave notice within a few days, and the city sought to prohibit the board from hearing the appeal on the ground that her notice of appeal was late.
Held: claim dismissed.
· “The choice of messenger was an unfortunate one ... If the specified date is not subject to extension or variation ... the situation is as if notice has not been given. The purpose of s.183 is to preserve the validity of an assessment affected by technical or procedural error or defect ... it does not affect the right to complain”. ... the 10-day period was directory and not mandatory.
...Contrast Torchinsky this with Re Rymal...
Re Rymal and Niagara Escarpment Commission (1981) 129 (3d) 363 (Ont. CA)
PRINCIPLE: a late response to a notice will be accepted if not enough time was given to respond to the notice.
Facts: The act gave landowners affected by decisions of the commission a right to appeal to the minister of housing. Notices of appeal must be received by the ministry within 14 days of the date of mailing by the commission. Commission mailed out notices of a decision to permit a residence to be built on Sept. 8. Spencer received this notice on Sept.17 and immediately mailed a notice of appeal that did not arrive until Sept. 23 – one day late. The owner who had sought the decision made an application to prohibit the minister from considering the appeal.
Held: owner failed. “The disruption of the mail at this critical time ... are aspects of this case that could properly be taken into account by the Court in refusing to exercise its discretion and grant the judicial relief sought.
· The notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to participate and to prepare.
o Clearly, the length of time needed will depend on the nature of the interests and the issues.
· The notice must also give enough information about the issues to enable the party to prepare to respond.
-Issues about notice are in fact NOT confined to pre-hearing notice, but can also arise in the course of the hearing itself.
-This is more evident than in the case of commissions of inquiry – which are under statutory duty to provide notice and an opportunity to respond to those they are of mind to name adversely in their final report.
-When should that notice be given? and What are the limits on its contents and wording?
-Both issues are raised in the following extract from the judgement of the SCC in the challenge to the authority of Krever Commissions of Inquiry into the operations of the blood system:
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada – Krever Commission) (1997) SCC
PRINCIPLE: procedural fairness is required in an inquiry due to the possible damage to reputation AND there is NO duty to issue the notices immediately, only to give a reasonable time AND the SPPA does NOT apply to inquiries as per s.3.
FACTS: The Krever Commission was set up to look at various peoples roles in the blood scandal. The hearings were governed by rules of procedure and practice that were adopted by all 25 parties to the inquiry. On the final day of the scheduled hearings, the commissioner sent out confidential notices to individual parties and the notices indicated that the commission may raise certain conclusions that would allege misconduct. The letter stated that the recipients had the right to respond as to whether or not the commissioner should make these findings. Several applicants brought application for judicial review that the commissioner was acting outside of the jurisdiction set out in section 13 of the Inquiries Act.
Note: In a public inquiry, purpose is not to make anyone liable to civil liability or criminal liability and further to this, evidence given cannot be used in other proceedings against the parties.
· “Broad inquiries are not focussed on individuals or whether they committed a crime; rather they are concerned with institutions and systems and how to improve them. It follows that in such inquiries there is no need to present individuals taking part in the inquiry with the particulars of a "case to meet" or notice of the charges against them, as there would be in criminal proceedings”.
· Commissioner is walking a fine line because he has to get to the bottom of the issue – find out who is at fault and what happened. BUT on the other side, you can’t go as far as making a conclusion which would make someone subject to civil or criminal liability.
· The Inquiries Act specifically protects participants from civil and criminal prosecution.
o The parties that received the notices alleged they would find harm as a result of the findings – harm to reputation.
ISSUES:
· (i) Did the court exceed jurisdiction by making allegations of misconduct?
· (ii) What procedural protections should be attached to the issuance of these notices?
· (iii) The timing of the release of notices. The appellants submit that because the Commissioner waited until the last day of hearings to issue notices identifying potential findings of misconduct which might be made against them, their ability to cross-examine witnesses effectively and present evidence was compromised.
HELD: The commissioner did not exceed his jurisdiction as the principles of procedural fairness were followed in the issuing of notices. Even though there will be no criminal or civil liability, the principles of procedural fairness apply because the possible damage to reputation is significant. But, the DofF was not breached by issuing the notices. The amount of time given to respond to the notice was enough time.
(i) The commissioner did not exceed his jurisdiction as the principles of procedural fairness were followed in the issuing of notices.
(ii) “In fairness the witnesses or parties who may be the subject of findings of conduct, the notices should be as detailed as possible”. Procedural protections that should be attached to the issuance of these notices:
-So, the notices were issued in confidence to the parties receiving them – confidentially.
· The parties are given a chance to respond before a public finding against the parties was made.
o Therefore the only way that the notices could have an adverse effect was if the parties themselves made the notices public.
· As well as giving the parties a chance to respond, the rules of practice and procedure gave the parties the right to cross-examine and call their own witnesses.
· Furthermore, the commissioner did not exceed jurisdiction because his findings did not have anything to do with criminal or civil liability.
(iii) There is no statutory requirement that the commissioner give notice as soon as he or she foresees the possibility of an allegation of misconduct.
· It cannot be said that the timing of the delivery of the notices amounted to a violation of procedural fairness. The time given was adequate.
· “Although the notices should be given as soon as it is feasible, it is unreasonable to insist that the notice of misconduct must always be given early. There will be some inquiries, such as this one, where the Commissioner cannot know what the findings may be until the end or very late in the process. So long as adequate time is given to the recipients of the notices to allow them to call the evidence and make the submissions they deem necessary, the late delivery of notices will not constitute unfair procedure”.
· “The timing of notices will always depend upon the circumstances. Where the evidence is extensive and complex, it may be impossible to give the notices before the end of the hearings. In other situations, where the issue is more straightforward, it may be possible to give notice of potential findings of misconduct early in the process. In this case, where there was an enormous amount of information gathered over the course of the hearings, it was within the discretion of the Commissioner to issue notices when he did”.
o In this case, the evidence was extensive and complex and it was impossible to give earlier notice and furthermore, the recipients were given the chance to make further arguments.
· Conduct of inquiry as a whole has to go along with purpose of improving institutions – at the end they can look toward fairness.
-Question:
Why couldn’t the parties have relied on section 8 of the SPPA which discusses ‘Where character, etc., of a party is in issue’ – reputation?
· First = because this is an inquiry and s.8 SPPA does not apply as per s.3(1) (“... this Act applies to a proceeding by a tribunal in the exercise of a statutory power ...”). Only applies to tribunals (and provincial boards).
· Second = the SPPA only applies to provincial statutes and the inquiry is set up under federal statute.
· Thirdly = s.3(2)(f) specifically excludes the application of the SPPA to the Public Inquiries Act.
DISCOVERY
-Big case on discovery in criminal law (facts are not important) is Stinchcombe
-SPPA – s.8; s.12(1)
Stinchcombe (1991) 3 SCR 326 (Alta.)
PRINCIPLE: Stinchcombe is important because it emphasized the required degree of disclosure; one must know the case one must meet. Disclosure must not be perfunctory (indifference, showing little interest); it must be complete, subject only to privilege or relevance.
Canadian Pacific Airlines Ltd. v Canadian Air Line Pilots Association (1993) 3 SCR 724
PRINCIPLE: Tribunals have the power to order discovery only in situations where such a power is rooted firmly in the empowering statute. It is not likely that a presumption of this power will be drawn in the absence of express authority to make such orders.
NOTE:
SPPA: Discovery related provisions:
-Where character, etc. of a party is in issue - s.8: Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.
-Summonses - s.12:(1) A tribunal may require any person, including a party, by summons,
(a) to give evidence on oath or affirmation at an oral or electronic hearing; and
(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceeding and admissible at a hearing.
-In the judgement that follows, the court apparently found such an authority in the provisions of Ontario’s SPPA:
Ontario (Human Rights Commission) v. Ontario (Board of Inquiry
into Northwestern General Hospital)
PRINCIPLE: if a serious allegation is made (i.e. affecting reputation), a board of inquiry (pre-trial) could order full disclosure as per s.12 SPPA. “Justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address the issue on the basis of complete information of the case to be met”.
Facts: A board of inquiry was set up under the Ontario Human Rights Code to hear a complaint of racial discrimination made by ten nurses employed by the hospital. The respondent’s, NGH, prior to the hearing, requested disclosure of statements made in the course of the Commission’s investigation. The Commission said the comments were privileged because they were prepared for litigation purposes. The Board disagreed. It said the investigation documents are NOT documents made in preparation for litigation. The board ordered disclosure:
“I order the Commission to provide the Respondents all statements made by the Complainants to the Commission and its investigators at the investigation stage, whether reduced to writing or copied by mechanical means. I further order the Commission to provide the Respondents with the statement and identity of any witness interviewed by the Commission or its agents who the Commission does not propose to call and whose statements might reasonably aid the Respondents in answering the Commission's case”.
The Commission applied for judicial review of this order of disclosure.
Held: Full disclosure was ordered. Common law does in certain situations impose pre-hearing discovery obligations on tribunals. In this context, the serious ramifications (reputation) of a finding of discrimination cause the court to express the view that justice will be better served ‘where there is complete information available to the respondents’.
· Section 12 of the SPPAclearly recognizes the authority of a board of inquiry to order the production of all the documents which are the subject of the order in this case, subject to claims of privilege.
o The exception to disclosure is privileged documents – Court said that documents are NOT privileged, there was no evidentiary basis to support a claim of privilege on the basis of “an expectation of confidentiality”.
o The allegations of racial discrimination are major and can be harmful to those it is made against – when you make these allegations you can’t expect to be shielded.
o Full disclosure is ordered.
-Stinchcombe – “Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. ... in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met”
-Appling Stinchcombe to this case:
· The important principle enunciated by Sopinka J. is that ‘justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address the issue on the basis of complete information of the case to be met”.
· It does not take a quantum leap to come to the conclusion that in the appropriate case, justice will be better served in proceedings under the Human Rights Code when there is complete information available to respondents.”
-Stichcombe recognized that the “fruits of the investigation” in the passions of the Crown “are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice be done.”
-We are of the opinion that this point applies with equal force to the proceedings before a board of inquiry and that the fruits of the investigation are not the property of the commission.
CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board (1994) FC CA
PRINCIPLE: the obligations concerning disclosure imposed by the doctrine of fairness in administrative matters (opposed to matters affecting reputation as in NGH) are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the documents that will be relied on.
Facts: Hearing held as to whether or not a drug was being sold at an excessive price and in the course of the hearing, the drug company asks for disclosure of all of the documents in the Board’s possession. The Board denies but offers to give them the content of the documents and the case that the appellants have to meet.
Held:
The Board is set up in the statutory context as a board or tribunal and “there is no point in the legislature creating a regulatory tribunal if the tribunal is treated as a criminal court. The obligations concerning disclosure imposed by the doctrine of fairness and natural justice are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the documents that will be relied on”.
· to require a Board to disclose all possibly relevant information gathered while fulfilling its regulatory obligations would unduly impede its work from an administrative viewpoint.
· distinguished from Northwestern General Hospital (NGH) à the administrative tribunal here has economic regulatory functions and has no power to affect human rights in a way akin to criminal proceedings (thus, do not need to disclose everything possible).
o “There are admittedly extremely serious economic consequences for an unsuccessful patentee at a s.83 hearing, and a possible effect on a corporation’s reputation in the market place. But as McKeown J found, the administrative tribunal here has economic regulatory functions and has no power to affect human rights in a way akin to criminal proceedings.
o This decision backs away a bit from NGH and says that in administrative matters the court cannot be held to the same standard for discovery as in criminal matters as there is less at stake and economic/efficiency considerations.
· We are all agreed with McKeown (trial judge) that “law and policy require that some leeway be given an administrative tribunal with economic regulatory functions, if, in pursuing its mandate, the tribunal is required by necessity to receive confidential information. It is not intended that proceedings before these tribunals be as adversarial as proceedings before a court….”.
DELAY
-In recent years, the notion that undue delay in the conduct of administrative proceedings could amount to a breach of the rules of natural justice or procedural fairness achieved a measure of acceptance.
-Consider the following case involving delay prejudicing the presentation of a response.
-Consider also the extent to which the court should take into account the decision- maker’s institutional limitations or resources in cases like this.
Kodellas v Saskatchewan (Human Rights Commission) (1989) 60 DLR (4th) 143 (Sask.CA)
PRINCIPLE: Established 3 factors to determine an “unreasonable delay” in the context of s.7 of the Charter.
(1) If it is prima facie unreasonable
(2) The reason or responsibility for the delay, conduct of the parties (what the reason for the delay?)
(3) What is the prejudice or impairment caused by the delay?
THE ACTUAL HEARING:
ORAL HEARINGS
-What is an oral hearing and when should it be provided?
-Generally means a ‘face to face encounter with actual Decision maker. As opposed to a hearing that occurs in writing or which is based on interviews done by an investigator.
o Phrase “oral hearing” can have different meanings; audi alteram partem rule: right to be heard but rule does not imply that there must always be a hearing.
o Traditionally, oral hearings considered requirement of natural justice. But, in Komo Construction Inc. (1968) – “Turning now to the audi alteram partem rule, it is important to note that the rule does not imply that there must always be a hearing”.
-As doctrine of procedural fairness has expanded, courts have relaxed requirement for oral hearings.
-In Nicholson (first case on fairness), Laskin CJ said that although police constable was entitled to fairness, it was up to police board as to whether they wanted to proceed by oral or written hearing.
-Evolving sense of adequate form of hearing in amended SPPA – explicitly recognizes possibility of ‘written or electronic’ hearings.
-Knight (director of education fired by board), court took flexible approach to procedural fairness – all meetings between him (w/ lawyer) and board allowed him to get enough info about situation, these casual meetings and negotiations allowed him to learn case against him and have a chance to respond.
-In Charter cases, courts are showing flexibility as well.
-Singh: The absence of an oral hearing need not be inconsistent with fundamental justice in every case….But “In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.”
-Hundal - section 7 of the Charter does not always require an oral hearing - there is a variable standard that depends on the context.
-In Hundal, where individual has an opportunity to have a hearing before or after decision and there are no issues of credibility, an oral hearing is not required by principles of fundamental justice.
-Thus, the arguments are made that it is preferable to gather evidence in certain kinds of cases by inquisitorial methods and to neither allow other to be present nor expose those interviewed to cross-examination.
-Of course, the issues at stake are more than simply those normally associated with debates over oral as opposed to written hearings. In addition, they also involve questions about open hearings, cross-examination rights, and access to and the opportunity to meet adverse evidence.
-While the difficulties are not confronted as directly as they might have been, the following judgement provides an example of where a sexual harassment complaint was dealt with by methods of inquiry other than a regular hearing:
Masters v. Ontario (1994) Ont. Div. Ct.
PRINCIPLE: employment relationship (based on Minister’s discretion) will be a determining factor when deciding DOF even when one’s credibility/reputation is at issue AND investigations require less fairness than trial AND SPPA does NOT apply to investigations under Minister’s discretion (not a tribunal).
Facts: Masters had been appointed by the premier in exercising his prerogative powers as Ontario agent General in N.Y. Complaints of sexual harassment were made against him by 7 women. The premier ordered an external investigation which produced a report confirming P had harassed 7 women. Masters responded to those allegations several times. The premier took all positions into account and decided to remove Masters from the position. Masters applied for judicial review of the investigator’s report alleging various breaches of natural justice in the conduct of the investigation; witnesses had been interviewed by the investigators without Masters or his counsel being present; he had been refused access to the list of questions that were asked, the copies of any notes, transcripts or tapes made during the interviews; and that while Masters was allowed to interview the witnesses himself, few agreed to meet with him.
Issue: Masters contends that where credibility will determine the main issue before a government decision maker, the general duty of fairness and the rules of natural justice require that an impartial decision maker determine credibility by way of a full trial-type hearing permitting witnesses to be subjected to cross-examination.
Held: the duty to act fairly was met without recourse to an oral hearing. Credibility is an issue, but no oral hearing is required.
“I find that Masters was aware of all the material allegations against him and was provided with an adequate opportunity to be heard. The investigation was neither unfair nor biased by reason of any of the grounds alleged. The requirements of the duty to act fairly in the scope of the employer-employee relationship in the case at bar were met”.
Nature of employer-employee relationship:
· Masters understood that his continued employment was at the discretion of the Premier and was specifically subject to the continuing confidence of the Premier.
o The “at pleasure” doctrine recognizes the discretionary nature of the appointment.
o The nature, thus, requires pure ministerial discretion.
· Since Masters held the employment at the discretion of the Premier, the Premier was not acting pursuant to a statute but rather was exercising a prerogative to consider revoking one of his earlier appointments.
o Masters’ position was more politically accountable and more senior that those positions in Nicholson and Knight.
o These features of the decision places Masters more towards the discretionary or legislative end of the spectrum referred to in Martineau.
Investigation, not a trial:
· The investigation followed standard procedures and the process was only investigatory therefore the duty of fairness did not require Masters to have direct access to the witnesses à therefore duty of fairness was met.
o The Premier was NOT conducting a trial.
· “Clearly, an adversary trial is much more likely to produce ‘truth’ and the perception of ‘fairness’ than a mere investigation. ... In comparison to a trial, therefore, there is a much greater margin for error in the ‘findings’ of any investigation”.
· He also was given a meaningful opportunity to respond to allegations against him.
SPPA 1990:
· The SPPA was not relevant and had no application because it was a decision that was within the Premier’s discretion and not about statutory decision making.
Remedies à b/c his withdrawal was a prerogative power injunction and declaration were not open to him, only the prerogative writs.
Comments àCase is significant because of the particular nature of the decision-making. Also, it was key that the decision was investigative.
-The final case in this section provides an illustration of how claims to an oral hearing (procedural claims generally) are affected by the way the courts characterize the issue before the decision-maker and the nature of the interests that is at stake.
Khan v. University of Ottawa (197) Ont. CA
PRINCIPLE: credibility and severe impact of decision requires an oral hearing.
Facts: The appellant was a student at law school and for a final exam, claims to have written in 4 booklets, however, only the first three were found and marked by professor. Miss Khan received a failing grade. She First appealed to the Faculty of Law Examinations Committee; then to the Senate Committee; then sought judicial review under SPPA; appealed Div Crt decision to CA. According to the Faculty of Law Regs., a student is entitled to have a grade reviewed “where it appears that the grade assigned to a student’s work may be the result of a significant error or injustice.” Committee decides she made up 4th booklet story, but never gives her an open hearing.
Issue:to what extent do credibility issues within a case warrant an oral hearing?
Held: oral hearing was required due to credibility and importance of issue (she was only allowed to make written submissions). The Committee disbelieved Ms. Khan's explanation for the fourth booklet without hearing from her. This amounted to a denial of procedural fairness, which by itself fatally flawed the proceedings before the Committee.
Importance of issue affecting student:
· “In my view, a university student threatened with the loss of an academic year by a failing grade is also entitled to a high standard of justice. The effect of a failed year may be very serious for a university student. It will certainly delay if not end the career for which the student was studying. ...”.
Credibility:
· Ms. Khan’s credibility was the central issue before the Committee. How else could she have demonstrated that she handed in a fourth booklet except by pledging her word that she did?
· “In my opinion procedural fairness before the Examinations Committee in this case required the following: first, and most important, the Committee should have given Ms. Khan an oral hearing because her credibility was a critical issue on her appeal”.
· “In many academic appeals, procedural fairness will not demand an oral hearing. An opportunity to make a written submission may suffice. For example, I doubt that students appealing their grades because they believe they should have received a higher mark would ordinarily be entitled to an oral hearing. What distinguishes this case is that the determining issue before the Examinations Committee was Ms. Khan's credibility. In denying Ms. Khan relief the Committee judged her credibility adversely.
-Ms. Khan need not show actual prejudice to prove that she has been denied procedural fairness. She need only show that the Committee’s breach of its duty of fairness may reasonably have prejudiced her, Kane, she has met that burden.
Dissent: this was not a matter which turned on credibility. There were no allegations made against the appellant and the proceedings were not adversarial in nature. The appellant had not been charged with cheating on an examination or with any other disreputable conduct as a member of the student body. The consequence to her was not expulsion from the faculty or even loss of a full academic year of study.
-Komo Construction Inc. – an oral hearing is not required to satisfy the demands of natural justice.
-Singh– the Supreme Court's conclusion that an oral hearing to determine issues of credibility was required was inextricably linked to the serious nature of the rights at stake.
Here, Charter rights are not in issue. The appellant, at most, will be required to prolong the completion of her education by one semester, until she has satisfied the requirements for graduation.
-Kane- A decision affecting the right to continue in one’s profession or employment may demand a higher standard of justice, however, that is not the case here.
OPEN HEARINGS
-Interests at stake:
(1) Privacy of victims, complainants; prejudice to individual’s reputation.
(2) Public interest in access to the hearing and Charter s. 2(b) rights (freedom of expression, of the press).
(3) Potential harm to the individual (threats to security), national security, or commercial competitiveness.
-SPPA – s.9(1)
-Charter – s.2(b)
NOTE:
-SPPA (Open hearings are default) – s. 9(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public.
-s.2(b), Charter – allows freedom of the press to include the ability to review decision-making processes in the quasi-judicial sphere (Pacific Press).
THE RIGHT TO COUNSEL
-Arguments in favour of a having counsel:
· They have specialized knowledge to deal with complicated legal issues.
· Assures a level of preparedness; Protects the client from the greater resources of the state.
-Arguments against counsel in administrative setting:
· Greater cost; delay.
· Makes it more adversarial/Complicates the issues and proceedings.
-SPPA – s.10; s.11(1)
NOTE:
SPPA - Right to counsel - s. 10 A party to a proceeding may be represented by counsel or agent
SPPA - Rights of witnesses to counsel - s. 11(1) A witness at an oral or electronic hearing is entitled to be advised by counsel or an agent as to his or her rights but such counsel or agent may take no other part in the hearing without leave of the tribunal.
-A statute excluding the right to counsel is NOT final on the matter:
Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board, Amalgamated Clothing and Textile Worke’s Union (1979)
PRINCIPLE: If statute prevents right to counsel, must still consider the vital importance and the complexity in fact and law which may require legal counsel.
Facts: Dispute in men’s clothing industry resolved by arbitration, process conducted for decades without lawyers. After this particular grievance, association made a general statement that it wished to change this practice and use lawyers for some disputes. Arbitrator rules that no absolute right to counsel, discretionary; should not be used to allow counsel in this case.
Issues: (1) Right to counsel absolute or discretionary? (2) If discretionary should it be allowed here?
Held: right of counsel granted.
1. There was no right to counsel in statute in this instance: Court looks at the collective agreement and agrees with the arbitrator that there’s no right to counsel; no absolute right to counsel but still have to look to the demands of procedural fairness.
· s.10 SPPA 1971 – provides that a party to “proceedings” may be represented at a hearing by counsel or an agent. However, the relevant part of the statute does not apply to “proceedings”. Thus, the draftsmen could not have intended the SPPA to apply.
2. Court looks to the complexity of the issues and competency of those involved.
“In view of the vital importance of the controversy to the applicant company, and the apparent complexity of the matter both in fact and in law, natural justice, in my view, requires that the applicants be represented by legal counsel at the arbitration hearing without any limitation, even if the applicants had no absolute right thereto.”
-Where the instrument doesn’t give a right to counsel, tribunals MUST consider:
(1) Nature of the issues (not easy for a layperson to understand?);
(2) Consequences of the decision;
(3) Ability of the particular parties before them to make out a case.
Re Parrish (1993) 2 FC 60 (TD)
PRINCIPLE: lists situations where right to counsel is required (below).
Facts: The captain of a ship that had been involved in a collision with another ship was summoned to appear before an investigator appointed by the board. He appeared with two counsel, but he was refused to allow counsel at the hearing.
Issue: could the captain be required to attend and give evidence under oath without his counsel.
Held: procedural fairness requires him to be permitted to be accompanied by counsel at the inquiry. Expediency is not a relevant rebuttal here.
-The duty to act fairly implies the presence of counsel when some or all are found in the enabling legislation or implied from the practical application of the statute governing the tribunal:
àWhere an individual or a witness is subpoenaed, required to attend and testify under oath with a threat of penalty;
àWhere absolute privacy is not assured and the attendance of others is not prohibited;
àWhere reports are made public;
àWhere an individual can be deprived of his rights of his livelihood;
àOr where some other irreparable harm can ensue.
(Non-exhaustive list.)
Board’s argument à The presence of counsel would cause unwarranted delay and perhaps frustrate the immediate gathering of facts.
Court’s response à I cannot accept the Board’s argument that the need for administrative expediency in the proceedings outweighs the necessity for the protection of a witness through the presence of counsel.
Dehghani v Canada (Minister of Employment and Immigration) (1993) 1 SCR 1053 (Can.)
PRINCIPLE: NO counsel is necessary at a point of entry interview since it would constitute unnecessary duplication.
Facts: At stake here was the procedure employed at ports of entry to Canada when the initial immigration officer has concerns about the admissibility of a person. In such cases, the person seeking entry was referred to a secondary examination at which there was no entitlement to representation by counsel.
Held: To allow counsel at port of entry interviews would, ‘entail another “mini-inquiry” or “initial inquiry” possibly just as complex and prolonged as the inquiry provided for under the Act and Regulations. This would constitute unnecessary duplication. The purpose of the port of entry interview was, as I have already observed, to aid in the processing of the appellant's application for entry and to determine the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. The principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering”.
-In my opinion, all these matter which a board should take into account in deciding whether to allow legal representation, or the assistance of a friend or adviser, bearing in mind the overriding obligation to ensure that a prisoner “be given a full opportunity of hearing what is alleged against him and of presenting his own case”
Howard v. Stony Mountain Institution (1985) 19 DLR (4th) 502 FAC
PRINCIPLE: greater loss of liberty and complexity of issues = need for counsel.
Facts: Inmate in prison, earned right of early release then charged with assaulting guard and possessing contraband. Disciplinary hearing for charges held.P retained counsel but denied right to have counsel appear during hearing.Asked Federal Court to intervene and stop hearing.
Issue:whether Howard had an undeniable right to counsel and, whether s.7 of the Charter guaranteed him that right.
Held:counsel is required because of the severity of the consequences (loss of liberty) and the complex legal issues (the vague charge).
Relevant factors to consider when deciding if counsel applies:
“I am of the opinion that the enactment of s.7 has not created any absolute right to counsel in all such proceedings. ... whether or not the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence”.
Impact/gravity/severity of decision on individual:
-The appellant’s 267 days of earned remission was in jeopardy – loss of liberty. “In my view, that alone suggests his need to counsel”.
Capacity to understand/represent himself:
-One of the three charges is an act calculated to prejudice discipline and good order, a notoriously vague and difficult charge for anyone to defend. This feature suggests the need for counsel.
Also, recognition that even those facing min charges are allowed counsel in courts, so it would be incongruous to not allow counsel here to someone who is facing a loss of liberty
-The following case raises the issue whether s.7 and/or s.15 of Charter will ever create an entitlement to state-provided counsel.
New Brunswick (Minister of Health and Community Services) v. G.(J.) (1999) 3 SCR 46 (NB)
PRINCIPLE: requirement for counsel is based on (1) the seriousness of the interest at stake, (2) the complexity of the proceedings, and (3) the capacities of the appellant.
Facts: At stake was whether s.7 of the Charter required that a mother be provided with counsel (counsel provided by the state) for the purposes of resisting an application by the Child Welfare authorities for renewal of an order placing her three children in the custody of the state. A policy under the Legal Aid plan prohibited the granting of legal aid certificates in custody-order renewal proceedings.
Held: a fair hearing required that she be represented by counsel based on (1) the seriousness of the interest at stake, (2) the complexity of the proceedings, and (3) the capacities of the appellant. Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests and thereby threatening to violate both the appellant’s and her children’s s.7 right to security of the person.
(1) seriousness of the interest at stake:
The state was seeking to extend a previous custody order by six months. A six-month separation of a parent from three young children is a significant period of time.
(2) complexity of the proceedings:
Child custody proceedings are effectively adversarial proceedings which occur in a court of law. The parties are responsible for planning and presenting their cases. The parent must adduce evidence, cross-examine witnesses ... under significant emotional strain.
(3) capacities of the appellant:
In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education ... and familiarity with the legal system in order to effectively present his or her case.
Limit on right to counsel in child custody cases:
“I would like to make it clear that the right to a fair hearing will not always require an individual to be represented by counsel when a decision is made affecting that individual's right to life, liberty, or security of the person. In particular, a parent need not always be represented by counsel in order to ensure a fair custody hearing. The seriousness and complexity of a hearing and the capacities of the parent will vary from case to case. Whether it is necessary for the parent to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent”.
Was the violation of s.7 justified under s.1?
“... the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings”.
· s.1 is does NOT save the violation based on budgetary savings.
Re B.C. Motor Vehicle Act – “Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like”.
· This is so for two reasons:
-First, the rights protected by s. 7 -- life, liberty, and security of the person -- are very significant and cannot ordinarily be overridden by competing social interests. -Second, rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society.
Summary of a Right to Council:
DISCLOSURE AND OFFICIAL NOTICE:
-The general principle is: a party is entitled to know what evidence and representations have been given and is entitled to an adequate opportunity to respond.
-Disclosure is the disclosure to parties of information that the agency has about the decision to be made.
-It is a basic element of common law of natural justice and is usually required unless some competing interest prevails.
-The justification for the requirement is simply to enable a party to know and respond to information that the agency has and that may influence its decision.
-SPPA - s.5.4(1):
Access to Information Statutes:
-Many jurisdictions in Canada now have “freedom of information” and privacy laws.
-However, what should be realized is that just because information is exempted from disclosure under freedom of information legislation, does not necessarily mean that its disclosure will also be denied in proceedings to which the rules of natural justice or procedural fairness apply.
-Thus, under the federal freedom of information legislation, it is provided that the Act is without prejudice to other laws governing access to information.
Crown or Executive Privilege:
-At the federal level in Canada, the common law of Crown or executive privilege has been codified in provisions in the Canadian Evidence Act, 1985, C-5, ss.37-39.
-As opposed to the situation with the Access to Information Act, these privileges are applicable to proceedings before administrative agencies.
Canada Evidence Act
-A minister of the Crown or a person with executive privilege has certain rights with respect to disclosure and under the Canada Evidence Act they can “certify to the court, the person or body that the information should not be disclosed on the grounds of a specified public interest” (section 37(1)). Section 39 takes this one step further (page 362)
In favour of disclosure:
· access to as much of the case against as is possible is better for promotion of fairness, improves participation of the individual affected in decision-making (all of our cases).
· disclosure promotes transparency and accountability – promotes caution on part of experts or informants making statements (Ontario (Human Rights Commission), Napoli).
Against disclosure:
· concerns for ability to collect evidence – ability for informants or experts to be frank
(Re Napoli, Gallant, Gough).
· concerns for harm done by release of evidence – national security concerns (Suresh), or potential harm to informants (Chiarelli,Gallant, Gough); harm to individual that is subject of the admin process (e.g. Abel), including harm to reputation, harm to commercial advantage.
NOTE:
SPPA - Disclosure - s.5.4(1): If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,
(a) the exchange of documents;
(b) the oral or written examination of a party;
(c) the exchange of witness statements and reports of expert witnesses;
(d) the provision of particulars;
(e) any other form of disclosure.
Kane v Board of Governors of the University of British Columbia (1980) 1 SCR 1105 (BC)
PRINCIPLE: CANNOT deliberate without giving other party opportunity to respond. AND court is NOT concerned with proof of actual prejudice, but the possibility in the eyes of reasonable people AND a high standard of employment is required when ones’ profession is at risk.
Facts: Kane was a professor at UBC and was suspended by the president for improper use of computer facilities. He appealed to the board of governors, of which the president was a member. The board held a hearing, attended by Kane, his counsel and the president. After the hearing, the board had dinner and met, without Kane, to discuss the case. According to the findings of the Chambers judge, “Dr. Kenny did not participate in the discussions. Nor did he vote upon the resolution. He did, however, answer questions directed to him by Board members”. Kane sought JR.
Held: The Board was under an obligation to postpone further consideration of the matter until such time as K might be present and hear the additional facts adduced; at the very least the Board should have made K aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made. In the event, the Board followed neither course. The Board heard the further facts, deliberated, and ruled against K. In doing so, it made a fundamental error. The danger against which the Courts must be on guard is the possibility that further information could have been put before the Board for its consideration which affected the disposition of the appeal.
Disclosure:
· “It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellant authority must not hold private interviews with witnesses or hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such party must, in the words of Lord Denning in Kanda v. Government of the Federation of Malaya (1962) "... know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. ... Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other."
Pfizer Company Ltd. – It is clearly contrary to those rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.
‘judge in his own cause’/bias/prejudice:
· “The main thrust of the case advanced on behalf of Dr. Kane was that no man could be a judge in his own cause, and although no actual bias on the part of the President was alleged, his presence during the deliberations of the Board violated the principles of natural justice”.
· “We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons”.
Severity of decision:
· “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”.
Re Napoli and Workers’ Compensation Board (1981) BC CA
PRINCIPLE: another example of court saying that accused persons have the right to know the case against them so they respond adequately. Balances competing interests and still comes to this conclusion AND rejects argument that doctors will be less frank in their reports.
Facts: WCB BC was willing to provide P (injured worker) summaries of report but not actual report. Summaries suggested (w/out attribution of names) Napoli was faking injury and was a timewaster. Without access to actual reports and their authors, there was no way that P could effectively counter the claims against her. Doctors argued that disclosure would cause doctors to sanitize the reports, they would be less frank if they knew they would have to disclose.
Held: the rules of natural justice apply to the hearings and therefore the file contents must be disclosed. Without access to reports and authors of the reports, Napoli could not effectively counter the claims against him.
· Rammell v WBC (1961) – “If the claimant is not told the precise statement made against him, and when, where and by whom made, how can he effectively answer it?”
· In these circumstances, “a high standard of justice” is required (Kane), particularly since Napoli’s future will be largely shaped by the decision of the final domestic tribunal.
-Board’s/Doctor’s argument: concern about the loss of accuracy and frankness that would be likely to result. ... a doctor may feel under considerable restraints if he felt that anything said might be disclosed to the claimant, his employer or his union. The likely result could be reports that are vague and unreliable to the point of being worthless”
-Court’s response: rejected these arguments. This reasoning glosses over the valid contrary view that persons preparing reports which they know will be amenable to scrutiny will prepare them with greater care and diligence, and more important, that fairness requires that the original reports be disclosed in order that the claimant can effectively answer the case against him.
NOTE: The difficult issue of informants in a penitentiary setting is covered in the 2 cases that follow. These cases raise again the issue of the impact of the Charter on traditional common law justifications for withholding information:
Charkaoui v Canada (Citizenship and Immigration) [2008] (Charkaoui II)
Facts: The respondent ministers signed a security certificate against C under s. 77(1) of the Immigration and Refugee Protection Act. C was then arrested and detained. Before the scheduled date of the fourth review of C’s detention, counsel for the ministers informed the judge at an in camera hearing that they had recently taken cognizance of a document that should have been disclosed to C at the outset of the proceedings but had not been disclosed because of an oversight. The document consisted of a summary of two interviews C had had with CSIS officers. The judge ordered that the summary be disclosed to C’s counsel forthwith. At this same hearing, counsel for the ministers filed fresh allegations about C that were based on information that was not in his file when the ministers signed the security certificate. The next day, the judge disclosed a summary of this new information to C. The detention review hearing was adjourned and C was granted a postponement. C then filed a motion to exclude the new evidence. He also requested that the complete notes of the two interviews conducted by CSIS be disclosed to him together with the recordings of the interviews. But the ministers informed the judge that there were no recordings in the file and that notes of interviews are, in accordance with an internal policy of CSIS, systematically destroyed once the officers have completed their reports. Alleging that his right to procedural fairness had been violated, C filed a motion for a stay of proceedings, in which he asked that the certificate be quashed and that he be released. In the alternative, he asked that the new evidence be excluded. The Federal Court and the Federal Court of Appeal dismissed the applications.
HELD: The appeal should be allowed in part and the application for a stay of proceedings should be dismissed.
The court determined that, by adjourning the detention review to allow Mr. C time to prepare his testimony and defence, the designated judge had averted any prejudice that might have resulted from the delay in disclosing the interview summaries, particularly given the fact that Mr. C had himself participated in the interviews and doubtless knew what he had said on these occasions. It refused to order a stay of proceedings, holding that the designated judge, if he ultimately upheld the certificate’s reasonableness, would be in a position to determine whether the destruction of the interview notes had a prejudicial effect on Mr. C, and the appropriate remedy.
-The SCC decision in Charkaoui II was essentially an interim decision in which the court set out the scope of the ministers’ disclosure obligations in security certificate proceedings.
-Accordingly, there was no s.7 breach and the court was not called on to determine whether a failure to disclose, in breach of s.7, was justified under s.1.
-Each of the next 2 cases DO consider the issue of s.1 justification.
Individual’s right to know vs. informer’s Right to Protection:
Gallant v Canada (Deputy Commissioner, Correctional Service Canada) (1989) 36 Admin.
PRINCIPLE: not disclosing enough info IS a violation of s.7 in prison setting since result would be loss of liberty. However, it is saved by s.1 because of the wide discretion Parliament gave to the Commissioner in the Penitentiary Act.
Facts: Prisoner at a max security institution suspected of involvement in extortion and the import of drugs into the prison. As a result, Gallant was to be transferred to a more restrictive maximum-security facility. Authorities provided him with some details of alleged offences, but refused to reveal the names of the six informants, because of fear of reprisals. Gallant applied and was granted certiorari on the ground that the notice given was insufficient to satisfy the requirements of procedural fairness.
Issue:Does Gallant have a right to know accusers and address their accusations directly? Does s. 7 guarantee him this right?
Held: should have disclosed more info. to prisoner due to effect on liberty, however, the provision was saved by s.1.
-Three different judgments, 2 agree that he didn’t have a right to know accusers, 1 dissent.
Pratte (Majority) – this was a breach of s.7 of the Charter, since more restrictions in the new prison, it amounted to a deprivation of liberty, and this would not be in accordance with the principles of fundamental justice. Gallant had not been given a real opportunity to answer the allegations against him because he did not know the names of the informants. BUT, the decision was saved by s.1 because of the exigencies of penitentiary discipline; needed to confer wide discretion on penitentiary authorities. Cannot expect perfect procedural fairness in prison environment.
Marceau (Majority) – did not deal with Charter issue. Because this is a prison case, he imposed a lower standard for meeting the requirements for natural justice, given the nature of the decision, procedural demands would not be as high as they might otherwise be. Standards for natural justice lower in prisons. All that is needed is sufficient grounds to justify the transfer and ‘meaningful participation’.
Desjardins (Dissent) – Problem here is that the authorities failed to justify the reliability of the information they were using: “[T]he burden is on these authorities, when a disciplinary measure is taken, to demonstrate that the circumstances are such that they cannot inform the respondent of the facts on which the charge is based. This burden is not a light one since the protection of the law and of the Constitution does not stop at the prison gate….Before a claim, such as the one made here by the prison authorities, can succeed, measures ought to be taken so as to minimize errors.”
Gough v Canada (National Parole Board) (1990) 45 Admin. LR 304
PRINCIPLE: An individual’s liberty (even one on parole) is weighed heavily against competing interests not to have full disclosure.
Facts: Prison case, with more serious consequences. Former inmate out on parole for many years. He had exemplary record and was almost finished parole when allegations of sexual assault and drug use made against him. Board refused to release details of incidents or names of alleged victims.
Held: court reluctant to accept undisclosed information when a person is facing revocation of parole. Prisoner was already in a situation of ‘conditional liberty’; parole board had failed to justify its belief that disclosure would endanger the informants. Gough’s s.7 Charter rights have been infringed by the refusal to provide him with the confidential information upon which the Board is relying and it is not saved by s.1.
· An individual’s liberty (even the conditional liberty which a parolee enjoys) weighs very heavily in the scales when compared to competing interests.
1. Public Interest in fair procedures for everyone: “[T]here is also a public interest in employing procedures which are fair, for dealing with all members of society including paroled inmates. Procedures which have the appearance of being arbitrary and capricious are by their very nature not in the public interest”.
2. Accused must have enough information to answer the allegations: “Whether the requirement be described as one requiring that the “gist” of the allegations be provided or as one requiring that “an outline of the allegations” be provided is not important. [W]hat is required is enough detail to allow the individual to answer the allegations.
3. Not enough to claim the information is accurate: “The respondent claims that the accuracy of the information in question has been carefully vetted. That may be true but I do not think it justifies refusing to provide the applicant with the information he seeks. The assertion, that the information is accurate, is self-serving and it is no answer to the applicant’s perception that he is being dealt with arbitrarily and capriciously.”
4. s. 7 violation not saved under s. 1: “I am not convinced that a system which puts in the hands of the same body both the decision on the merits… and the decision as to how much of the information with is before it will be disclosed to the applicant, is one which can meet the requirements of s. 1 of the Charter”.
Counsel for the applicant’s argument – that his client would be much better off if he had been charged with criminal offences in relation to the incidents which are alleged.
(Gallant vs Gough)
Ø Balancing of interests
Ø Concern also that if info is not contested, we have no way of knowing if reliable, But Reprisals are a real possibility, and if you don’t protect your sources, they will not come forward with information in the first place.
Ø Reid (Gough) and Desjardins (Gallant) carve out compromise, i.e. can rely on info if court is convinced that source of info is reliable.
Ø Other safeguard is ‘limited release’ give to lawyer and not to client.
Disclosure where concerns for confidentiality of informants - summary:
· Informant identity can be protected (Gallant; Gough)
· Steps to ensure reliability of the information should be taken, decision to not release information should be justified to ensure that duties of procedural fairness/fundamental justice are not violated (Gallant- Desjardins, Gough)
· Compromises may be found in court supervision of discretion to withhold information (allows counsel access to the information), or through release enough information without revealing identity of source (where possible)
· Where section 7 rights are engaged, is concern for confidentiality part of the analysis of fundamental justice in s. 7 (Gallant – Marceau, Desjardins) or is it better dealt with under s.1 (Gallant – Pratte, Gough)?
OFFICIAL NOTICE
-Official notice is the extent and manner in which an agency may, in making its decisions, use material that is not introduced in evidence.
-SPPA - s.16
Davis – Administrative Law (article) “The basic principle is that extra-record facts should be assumed whenever it is convenient to assume them, except that convenience should always yield to the requirement of procedural fairness that parties should have opportunity to meet in the appropriate fashion all facts that influence the disposition of the case”.
NOTE:
SPPA - Notice of Facts and Opinions - s.16 - A tribunal may, in making its decision in any proceeding, (a) take notice of facts that may be judicially noticed; and
(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.
Q: when can an agency properly go beyond the record for a material fact?
-(MUST look to case law to answer this)
Township of Innisfil v. Township of Vespra (1981) SCC
PRINCIPLE: If a tribunal uses any prior decision as a precedent to give parties, proper notice must be given so that they may comment on it.
Facts: Case involved an annexation application; Barrie wanted to annex parts of Innisfil and Vespra to accommodate a growing population
Issue: whether it should accept in evidence a letter written by a government authority which purported to state the provincial govt’s position; before reaching the SCC, this issue had been settled and the letter was admissible.
Held: the board decision was correct, “the Board made its decision on the vacancy factor on the basis of general principles which it had accepted in previous cases and on other evidence which had been presented to it and used its previous experience in Barrie, not as a compelling precedent, but only as an example”. With respect to judicial notice, they held that “it is a sound rule for a tribunal intending to use any prior decision as a precedent to give parties to the hearing proper notice so that they may comment on it”.
ADMISSIBILITY OF EVIDENCE
-It is well settled that agencies are not governed by the rules of evidence used by courts unless some statutory provision requires them, and such provisions are rare.
-For example, Lord Denning in Miller v. Minister of Housing and Local Governmentsaid that “tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law”.
- SPPA - s.15(1)
NOTE:
SPPA – Evidence - What is admissible in evidence at a hearing - s.15(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
Relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
Bond v New Brunswick (Management Board) (1992)
PRINCIPLE: Hearsay evidence is NOT sufficient when a serious allegation has been made.
Facts: Sexual assault case. The victim did not testify; rather the arbitrator relied simply on hearsay evidence of what the victim had told others as well as opinion evidence.
Held: given the sanction and the seriousness of the allegations, this was not sufficient to meet the requirements of natural justice.
Re Clarke and Superintendent of Brokers, Insurance and Real Estate (1985)
Facts: Clarke surrendered her real estate licence when she was charged with theft and fraud. She was acquitted and applied for reissue of her licence. This application was made to the superintendent, who held a hearing. Clarke was sick and unable to attend, counsel for the superintendent introduced transcripts of the evidence from her criminal trial. The transcripts were admitted and the superintendent decided not to reissue her licence, although he said that he did not give much weight to the transcript evidence from the criminal trial. Clarke appealed based on evidence.
Held: the transcript evidence was admissible and the superintendent in admitting the evidence and giving it little weight made no error in law or in fact.
CROSS-EXAMINATION
-SPPA - s.10
SPPA -Examination of witnesses - s.10 A party to a proceeding may, at an oral or electronic hearing,
(a) call and examine witnesses and present evidence and submissions; and
(b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceedings.
Innisfil (Township) v Vespra (Township) (1981) 2 SCR 145 (Ont.)
PRINCIPLE: If the SPPA applies, and unless the relevant statute states otherwise, the right to cross-examination applies.
Facts: Case involved an annexation application; Barrie wanted to annex parts of Innisfil and Vespra; the issue before the board of whether it should accept in evidence a letter written by a government authority which purported to state the provincial govt’s position; before reaching the SCC, this issue had been settled and the letter was admissible.
Issue: The issue before the SCC was whether or not the opposing municipalities were entitled to cross-examine the provincial government official who had presented the letter.
Held: there should have been a right to cross-examine on the letter.
· SPPA applies; no out for government officials; no executive exclusion; if an individual’s rights are in issue and the statute contemplates a full oral hearing, there must be real clear language to support a denial of cross-examination rights.
Re County of Strathcoma No.20 and MacLab Enterprises (1971)
PRINCIPLE: Cross-examination will vary with the nature of the case being heard. Other means such as written answer may be sufficient to correct or contradict any prejudicial statements in their view in order to satisfy procedural fairness.
Facts: The provincial planning Board directed that lands owned by a developer be rezoned from “agricultural general reserve” to “general urban”. A group appealed this who believed the area was unsuitable for residential housing due to odours by nearby industries. The group succeeded on the ground that they had not been given an opportunity to test all evidence by cross-examination. The developer appealed.
Held: appeal allowed, cross-examination is not necessary when other means, written answer, are sufficient to correct or contradict evidence. No lack of procedural fairness.
· “In the process of presenting his own case he is entitled to weaken and destroy the case that is made against him. In trials in Court this is often effectively done by cross-examination. A party is often able to advance his own case from the mouths of his opponent's witnesses. It does not follow that the refusal of or the placing of limitations upon the right of cross-examination will always require that the Court quash an order made in proceedings in which these restrictions are enforced. If he is afforded an equally effective method of answering the case made against him, in other words is given "a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice" the requirements of natural justice will be met. The importance of cross-examination will vary with the nature of the case being heard”.
· “Have the respondents been afforded "a fair opportunity" to "correct or contradict" the contents of the report of Dr. Bernhart? They have been deprived of doing so by cross-examination because its author was not present, but cross-examination is but one method by which this can be done. In the present case, the Board invited written answers to the matters contained in the report. To one who reads the critique of Dr. Turk and the shorter one by Dr. Kleppinger, it is impossible to say the respondents have not taken full advantage of the opportunity afforded to them to "correct or contradict" any "statement prejudicial to their view" in the Bernhart report”.
Re B and Catholic Children’s Aid Society of Metropolitan Toronto (1987)
PRINCIPLE: cross-examination necessary where serious allegation to reputation and if case is decided solely on hearsay evidence.
Facts: The Child Welfare Act (1980) enabled a ‘child abuse register’. If an individual was included on the list, s/he was entitled to notice and to make an application to be removed from the list. Appellant allegedly sexually assaulted a 12 year old girl. Appellant is appealing his name on register. The victim was not called as a witness and thus, unable to be cross-examined. The social worker gave hearsay evidence based on out-of-court conversation with the victim.
Held: It is our view that in the circumstances mentioned, where the appellant was denied the right to cross-examine the alleged victim, the admission of the hearsay evidence did amount to a denial of natural justice; the hearing in this case fell below the minimum requirement of fairness. The appellant was not convicted of sexual molestation but nevertheless it is a grievous stigma to have one’s name in the Child Abuse Register where it may remain for 25 years.
· Hearsay evidence is admissible because of s.15(1) of the SPPA.
o Evidence – What is admissible in evidence at a hearing
115.(1) ... a tribunal may admit as evidence at a hearing ...
(a) any oral testimony
THE LIMITS OF THE TRIAL-TYPE HEARING:
-An important and general problem for lawyers is the appropriate uses and limits of the trial type hearing.
-This problem can most usefully be examined at this point, after a study of its characteristic element, cross-examination.
-Consider a proposal and assume that the decision about the proposal generally. What kind of hearing is appropriate, and what kind of hearing is required?
i.e. consider the issue of environmental tailoring and assume the decision has been make to have a large plant on the shore of a lake and to use water from the lake for cooling...should the pipe be extended far out into the lake, at the cost of millions of dollars,? Or will the lake currents simply push the warm water back to shore?
-We suggest that the decision has 2 characteristics that can usefully be separated into: Fact and Choice.
-Fact Finding – a determination of the current knowledge about the nature and the cost and effectiveness of longer and shorter outlet pipes. One of the elements of the determination will be the extent and risks of uncertainty.
-Choice – given the determination about ‘facts’, the board must make a choice that is ultimately between money and an (uncertain) harm to the fish. In other context, the choice might be more complex and might now involve any element that could be easily expressed in money.
NOTE: A trial process may often disguise choice as fact finding or the application of general standards.
POST-HEARING ISSUES
REASONS:
-We have seen that:
both SPPA s.17(1) and Alberta’s APJA s.7, require decision makers coming within their purview to give reasons for this decisions (in the case of SPPA, only on request). And Quebec’s s.8 QARAJ, and British Columbia’s s.51 ATA, each have a similar provision.
-We have also seem that, until recently, the common law was reluctant to impose on statutory and prerogative decision-makers, an obligation to give reasons for their decisions.
-ALL OF THAT CHANGED IN 1999 WITH THE JUDGEMENT OF THE SCC IN BAKER V CANADA.
-Clearly, the SCC did NOT hold that all exercises of statutory or prerogative power now involve the giving of reasons.
-In Baker itself, it was obviously the importance of the interest at stake that triggered the obligation. The judgement also seems to accept that the existence of a statutory right of appeal from the decision will normally generate an entitlement to reasons.
-It was in1997, in CUPE, where L’Heureux-Dube held that the absence of a transcript of a tribunal’s proceedings could be a fatal error if that led to an inability to make out a case for JR on the grounds alleged.
-It is therefore puzzling why there is no explicit reference in Baker to the facilitation of JR. Of course, there is still a vague residual category: “other circumstances”.
-SPPA - 17(1)
NOTE: The tendency of the courts since Baker has been to require the provision of reasons.
-But this has not universally been the case (Service Corp. International (Canada) Inc. V Burnaby (City) (1999) where municipal corporations were not obliged even after Baker to provide reasons for decisions in planning maters).
DUTY TO GIVE REASONS
Reasons for requiring reasons:
1. Enhance quality of decision making by forcing DM to articulate the relevant issues, and how the evidence and arguments justify the decisions s/he has reached.
2. Written decisions improve standards of agency b/c members of agency can consult reasons.
3. Jurisprudence allows parties to address agency more effectively by having an understanding.
4. Reason allow losing party to know whether DM has understood and fairly supplied the decision.
5. Without reasons, very difficult for effected party to request similar things in future. Must know what went wrong first time to know if you have ground to appeal (or apply for JR).
Arguments for NOT giving reasons:
1. Time consuming and expensive (use a lot of resources that could be spent better elsewhere).
2. Too onerous for members of tribunals who have little adjudicative experience.
3. In many cases, actual decision written by staff of agency members.
4. Requirement of reasons formalizes what was intended to be informal processes different from courts.
Case law: obligation to give reasons:
· General rule - barring statutory directives, common law does not require reasons.
· Exceptions
o Cases where subject matter is of very high interest to individual.
o Charter cases involving s.7.
o Cases involving successive applications.
o Cases where there is a right of appeal (can’t appeal unless you know reason for defeat).
· Baker = duty to give reasons in certain circumstances; two indicia:
1. The importance of the decision to the individual and
2. Whether or not there was a right of appeal (to make a right of appeal effective, you need reasons for the reviewing court to probe).
o “Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision”.
· Since Baker, the tendency of the courts has been to require the provision of reasons.
· Suresh – court supported the provision of substantial reasons in such “danger to the public or the security of Canada” deportation cases at least in risk of torture and related situations. AND, the reasons must emanate from the person making the decision (unlike Baker).
“The Minister must provide written reasons for her decision. These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier's report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor's brief than a statement of reasons for a decision”.
NOTE:
SPPA - Decision: interest - Decision - 17(1) - A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefore if requested by a party.
· THUS, THE PARTY MUST REQUEST REASONS.
-The following judgement of the Federal Court of Appeal is further evidence that courts are giving the Baker reasons requirement a substantive reading, although in a setting far removed from Baker and Suresh.
-Via Rail is a watershed case which states what the content of the reasons must contain:
VIA Rail Canada Inc. V National Transportation Agency (2001) 2 FC 25 (CA)
PRINCIPLE: reasons MUST provide enough insight into the reasoning process.
Facts: Complaint from wheelchair basketball team regarding the tariff for those that needed help on and off the train. Agency determined that the tariff constituted an undue obstacle in the mobility of the disabled persons (undue defined as improper, inordinate, excessive, oppressive by SCC)
Held: reasons given by agency were inadequate, the duty to give reasons is only fulfilled if the reasons provided are adequate. Reasons were inadequate because they did not provide enough insight into the reasoning process followed. Moreover, they were not sufficiently clear with respect to the conclusion that is
· what is adequate depends on each particular case, however, in general adequate reasons are those that serve the functions for which the duty to provide them was imposed.
· The decision-maker must set out its finding of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out and must reflect consideration of the main relevant factors.
· in the case of a regulated industry, the regulator’s reasons for making a particular decision provide guidance to others who are subject to the regulator’s jurisdiction.
· To comply with the duty to give reasons, the decision-maker must set out the finding of facts and the principal evidence upon which those findings were based; reasons must address the major points in issue.
Effect of breach of the duty to give reasons
· If you fail to give reasons or if you fail to give sufficient reasons, this can give rise to a court’s discretion to set aside the decision.
· You can seek certiorari (quash the decision), prohibition, or mandamus.
· In judicial review applications, the right to a remedy is always discretionary; even if you make out your case, the decision-maker is not bound to give you the relief you seek, even though there is a right underlying the request.
I N T R O D U C T I O N
The Administrative State and the Rule of Law
COURTS AND ADMINISTRATIVE AGENCIES(skip to p23)
JUDICIAL REMEDIES OF ADMINISTRATIVE LAW: (p25)
-The courts exercised this supervisory jurisdiction through remedies that were available only in respect of public duties or powers.
-They were known as the prerogative writs.
-Three prerogative writs:
Certiorari – to quash or set aside a decision.
- A writ of certiorari is a form of judicial review whereby a court is asked to consider a legal decision of an administrative tribunal, judicial office or organization (eg. government) and to decide if the decision has been regular and complete or if there has been an error of law.
Mandamus – to order the performance of a public duty.
- means "we command" in Latin, is a writ which commands an individual, organization (eg. government), administrative tribunal or court to perform a certain action, usually to correct a prior illegal action or a failure to act in the first place.
- Because of its specialized nature, habeas corpus stands somewhat out of the main stream of administrative law.
-When the legislature has not provided a statutory right of appeal, in what circumstances may a court intervene in the administrative process at the instance of a person who has invoked its supervisory jurisdiction?
-There are 4 principle grounds of JR (which may overlap):
1. Procedural impropriety: before taking action that may adversely affect the interests of individuals, administrators are generally under a legal duty to act in a manner that is procedurally fair. Judges have developed much of what is defined as fair. Legislation may prescribe the procedures to be followed.
- This requires them to give prior notice to those likely to be affected and a reasonable opportunity to respond.
- Impartiality in the decision maker is an attribute of procedural fairness.
- The courts must determine the scope of the legal powers and duties of the agency by interpreting the relevant legislation.
- There must be some evidence to support material findings of fact on which an agency bases its decision.
- NOTE, when administrative action infringes a Charter right, it may be justified under section 1 as a reasonable limit prescribed by law.
- i.e. a refusal by the Immigration and Refugee Board of a claim to refugee status might be impugned both on the ground that it was made in breach of the common law duty of fairness and amounted to a denial of liberty or security of the person, other than in accordance with the principles of fundamental justice, contrary to section 7 on the Charter (p.26).
- regardless of whether it is authorized by statute, administrative action may always be impugned in court on the ground that it breaches either the division of powers or the individual rights provisions of the Constitution.
The Role of Judicial Review
Baker (1999)
Baker v Canada (Minister of Citizenship and Immigration) (1999) 2 SCR 817 (Can.)
Facts: Mavis Baker, Jamaican who entered Canada as a visitor in 1981 and has remained since. She never received permanent resident status, but supported herself illegally as a domestic worker for 11 years. She has 4 children in Canada and 4 in Jamaica. She was ordered to be deported in 1992. In 1993 she applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate (H & C) considerations, pursuant to s.114(2) of the Immigration Act. In 1994 she was denied stating in the letter that there were insufficient H & C grounds. This letter contained no reasons for the decision.
Held: the appropriate standard of review is reasonableness simpliciter. Both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the humanitarian and compassionate (H&C) discretion was unreasonable. The matter was returned to the Minister for redetermination by a different immigration officer.
-Relevant Statutory Provisions and Provisions of International Treaties
Immigration Act, R.S.C., 1985, c. I-2
82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court -- Trial Division.
83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court
Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
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.
Immigration Regulations, 1978, SOR/78-172, as amended by SOR/93-44
2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada 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.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
Also see:
Article 9; Article 12
Issues (raised by this appeal):
(1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review?
(2) Were the principles of procedural fairness violated in this case?
(i) Were the participatory rights accorded consistent with the duty of procedural fairness?
(ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?
(iii) Was there a reasonable apprehension of bias in the making of this decision?
(3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker's children?
NOTE: In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration
Analysis:
B. The Statutory Scheme and the Nature of the Decision
-Immigration officers who make H&C decisions are provided with a set of guidelines, contained in Chapter 9 of the Immigration Manual. The Guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them.
-Officers have a duty to ask themselves what a reasonable person would do in such a situation (Guideline 9.05)
-Officers also have a duty to assure themselves, first, whether a public policy consideration is present, and if there is none, ask whether humanitarian and compassionate circumstances exist.
-Humanitarian and compassionate grounds will exist if unusual, underserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada (Guideline 9.07).
-The Guidelines also address situations involving family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a Canadian resident.
-Also to be considered is the reasons why the person did not apply from abroad and the existence of family or other support in the person’s home country.
C. Procedural Fairness
Ms Baker argued that she was accorded insufficient participatory rights, that a duty to give reasons existed, and that there was a reasonable apprehension of bias.
(1) FACTORS AFFECTING THE CONTENT OF THE DUTY OF FAIRNESS:
The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances – “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness (Knight).
Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances (non-exhaustive list):
(i) The nature of the decision being made and the process followed in making it.
· “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making” (Knight).
o The more the process is 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 to 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.
o i.e. if there is a ‘right of appeal’ this is a factor illustrating that the procedure was designed to be more judicial, thus a factor is favour of greater procedural protections. Thus, the more rights for the appellant usually.
(ii) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.
· Greater procedural protections 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.
o i.e. if there are no procedural protections in the statute, this is a factor illustrating that the procedure was designed to be more judicial, thus a factor in favour of greater procedural protections.
(iii) The importance of the decision to the individual(s) affected.
· 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.
· Kane – “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”.
· R v Higher Education ... Dental Surgery (1994)– The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.
(v) The legitimate expectations of the person challenging the decision.
· Old St. Boniface– this doctrine is part of the doctrine of fairness or natural justice, and it does not create substantive rights.
· Qi v Canada – if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.
· If a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights. Nevertheless, the doctrine of LE cannot lead to substantive rights outside the procedural domain.
(vi) Take into account and respect the choices of procedure made by the agency itself.
· This is particularly so 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.
(2) LEGITIMATE EXPECTATIONS:
-No legitimate expectation based upon the articles of the Convention. The Convention is not the equivalent for a government representation about how H&C applications will be decided.
(3) PATICIPATORY RIGHTS:
Was the failure to accord an oral hearing and give notice to Ms. Baker or her children inconsistent with the participatory rights required by the duty of fairness in these circumstances?
-Court evaluated this question based on the above 5 considerations of procedural fairness above.
Answer – Baker v Canada:
-It cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different way in different situations....
-I agree that an oral hearing is not a general requirement for H&C decisions. ...
-Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances.
-The opportunity which was afforded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
(4) THE PROVISION OF REASONS:
-The appellant submits that the duty of fairness, in these circumstances, requires that reasons be given by the decision-maker.
-She argues either that the notes of Officer Lorenz should be considered the reasons for the decision, or that it should be held that the failure of Officer Caden to give written reasons for his decision ... be taken to be a breach of the principles of fairness.
Shah – The Federal Court of Appeal held that reasons are unnecessary.
Tylo (1995) – the case history notes prepared by a subordinate officer are not to be considered the decision-maker’s reasons.
Gheorlan (1995) and Chan (1994) – the notes of the reviewing officer should not be taken to be the reasons for decision, but may help in determining whether a reviewable error exists.
Marques (1995) – an H&C decision was set aside because the decision-making officer failed to provide reasons or an affidavit explaining the reasons for his decision.
-Traditional position at common law: the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions – Northwestern Utilities [1979].
-Importance of giving reasons:
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3
· Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out.
· The process of writing reasons for decision by itself may be a guarantee of a better decision.
· Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review
· Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given.
-Concerns about giving reasons:
Osmond
· A reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers.
· That it may lead to increased cost and delay.
· It might induce a lack of candour (being frank and open) on the part of the administrative officers concerned.
-However, some Canadian courts have imposed, in certain circumstances, a common law obligation on administrative decision-makers to provide reasons, while others have been more reluctant
Orlowski v British Columbia (AG) (1992)– reasons would generally be required for decisions of a review board ...
RDR Construction (1982)– because of the existence of a statutory right of appeal, there was an implied duty to give reasons.
Boyle (1996) – Bastarache emphasized the importance of adequate reasons when appealing a decision.
Answer – Baker v Canada
- 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. ...
-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.
HOWEVER ... the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision.
(5) REASONABLE APPREHENSION OF BIAS:
-The duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision.
-The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner. ...
-the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.
Newfoundland Telephone Co and Old St. Boniface– the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness.
-Test for Reasonable Apprehension of Bias:
Committee for Justice and Liberty v National Energy Board (1978)
“...The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... That test is ‘what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
Answer – Baker v Canada
-The well-informed member of the community would perceive bias when reading Officer Loren’s comments.
-His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. ... the conclusion drawn was contrary to the psychiatrist’s letter. ...
-His use of capitals to highlight the number of Ms. Baker’s children may also suggest to a reader that this was a reason to deny her status.
-Reading his comments, I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer.
-I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias.
D. Review of the Exercise of the Minister’s Discretion
-Although the finding of reasonable apprehension of bias is sufficient to dispose of this appeal, it does NOT address the issues contained in the “serious question of general importance” which relates to the approach to be taken to children’s interests when reviewing the exercise of the discretion conferred by the Act and Regulations.
(a) The Approach to Review of Discretionary Decision-Making
-The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as:
the bad faith of decision-makers,
the exercise of discretion for an improper purpose, and
the use of irrelevant considerations.
-In my opinion, these doctrines incorporate two central ideas:
(i) That discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but
(ii) That considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker's jurisdiction.
-These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised.
-However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121) in line with the general principles of administrative law governing the exercise of discretion, and consistent with the Charter (Slaight Communications Inc. V Davidson [1989]) .
-Therefore, although discretionary decisions will generally be given considerable respect, that discretion MUST BE exercised in accordance with the boundaries imposed by:
àthe statute,
àthe principles of the rule of law,
àthe principles of administrative law,
àthe fundamental values of Canadian society, and
àthe principles of the Charter.
(2) The Standard of Review in Baker
-The "pragmatic and functional" approach recognizes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less deference.
-3 standards of review have been defined: patent unreasonableness,
reasonableness simpliciter, and
correctness:
-Applying the Pragmatic and Functional approach in Baker v Canada to determine the appropriate standard of review for decisions under s.114(2) of the Immigration Act and Regulation 2.1 of the Immigration Regulations, and the factors affecting the determination of that standard outlines in ...it has held that the decision, which related to the determination of a question of law was subject to a standard of review of correctness.
-However, this types of decision at issue was very different, as was the decision-maker.
-Thus, the appropriate standard of review must, therefore, be considered separately in Baker:
First factor – the presence or absence of a privative clause, and in appropriate cases, the wording of that clause.
· There is no privative clause contained in the Immigration Act.
Second factor – the expertise of the decision-maker.
· The fact that the formal decision-maker is the Minister is a factor militating in favour of deference.
· The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.
Third factor – the purpose of the provision in particular, and of the Act as a whole.
· This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act. The decision also involves applying relatively "open-textured" legal principles, a factor militating in favour of greater deference (Pushpanathan).
· The purpose of the provision in question is also to exempt applicants, in certain circumstances, from the requirements of the Act or its Regulations. This factor, too, is a signal that greater deference should be given to the Minister.
Fourth factor – considers the nature of the problem in question, especially whether it relates to the determination of law or facts.
· The decision about whether to grant an H&C exemption involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.
Answer – Baker v Canada
-I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language.
-Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness".
-I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
NOTE: The four above factors aid in determining what standard of review is required. Once determined, it must then be decided whether that standard was upheld.
(3) Was This Decision Unreasonable?
-Next, I will examine whether the decision in Baker, and the immigration officer’s interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in Southam: “An unreasonable decision is one that, is not supported by any reasons that can stand up to a somewhat probing examination”.
Answer - Baker v Canada
-The approach taken to the children’s interests shows that this decision was unreasonable in the sense contemplated in Southam.
-The officer was completely dismissive of the interests of Ms. Baker’s children. ...
-I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer. ...
-In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children.
NOTE: The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon "compassionate or humanitarian considerations". These words and their meaning must be central in determining whether an individual H&C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person's admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner.
-Thus, Baker has found that it is necessary for the Minister to consider an H&C request when an application is made. AND the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations.
-Children’s rights, and attention to their interest, are central H&C values in Canadian society. Indications of children’s interests as important considerations governing the manner in which H&C powers should be exercised may be found in the purposes of the Act, in international instruments, and in the guidelines for making H&C decisions by the Minister herself.
a. The Objectives of the Act:
-s.3(c)
-In my opinion, it is consistent to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada.
b. International law:
-Francis v The Queen (1956)– International treaties and conventions are not part of Canadian law unless they have been implemented by statute.
Answer – Baker v Canada
-I agree with the respondent and the CA that the Convention has not been implemented by Parliament.
- Its provisions therefore have no direct application within Canadian law (Francis and Capital Cities).
-Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
-Iacobucci (dissent): ... I do not share my colleague’s confidence that the Court’s precedent in Capital Cities, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.
c. The Ministerial Guidelines:
Baker v Canada
Held: Immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. ...
I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children ... it was an unreasonable exercise of the power conferred by the legislation and must be overturned.
E. Conclusions and Disposition
-Therefore, both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the H&C discretion was unreasonable, I would allow this appeal.
P R O C E D U R E
PR
Fairness: The Sources and Threshold
SOURCES
-The concept of procedural fairness, or “FAIRNESS” descends from the rules of “NATUAL JUSTICE”, which, historically, imposed on tribunals exercising juridical or quasi-judicial functions the trial-type procedures typical of courts.
-Today, however, it applies to a much broader spectrum of decisions, including the ministerial decision involved in Baker and its requirements vary accordingly, from notice of the decision and an opportunity to comment in writing to more elaborate in-person hearing requirements.
-To mark the development of the modern doctrine of procedural fairness, the first English case is Cooper.
-In Cooper, reliance is placed on one of the very oldest authorities:
Dr. Bentley’s Case (1723) – “not even God failed to provide Adam and Eve with a hearing before casting them out of the Garden of Eden”.
-This illustrates how appeals were made to conceptions of morality and natural law in the foundational jurisprudence.
THE TRADITIONAL COMMON LAW DOCTRINE:
Cooper v Wandsworth (1863)
Facts: Builder must give 7 days notice before starting construction of a house. If no application is made, the Board could demolish the house. But, nothing in statute that notice had to be given to the builder to demolish. Cooper sued for trespass. Board claimed it was ultravires. Board said they acted in accord with the statute.
Held: Board could not rely on lawful authority, Cooper should have had the opportunity to be heard, entitled to natural justice. No good reason why board could not give a hearing, it would have been no harm to the Board if they would have waited.
- “I cannot conceive any harm that could happen to the district board from hearing the party before they subjected him to a loss so serious as the demolition of his house; but I can conceive a great many disadvantages which might arise in the way of public order, in the doing of substantial justice, ...”
- “although there are no positive words in a statute requiring that the party shall be heard, the justice of the common law will supply the omission of the legislature”.
Facts: That case involved the dismissal of the chief constable of a borough police force. Under the relevant statute the watch committee was empowered to dismiss a borough constable "whom they think negligent in the discharge of his duty". The dismissal was made without informing the chief constable of the charges against him and without giving him an opportunity to be heard.
HL Held: the watch committee was bound to observe the principles of natural justice and that, in view of the failure to do so, the dismissal was a nullity. The chief constable's dismissal was a nullity on the grounds that the administrative body which had dismissed him had failed to provide the reasons for his dismissal or to accord him an opportunity to be heard in violation of the rules of natural justice.
· Central to the reasoning in the case was Lord Reid's distinction between (i) master-servant relationships (i.e. contractual employment), (ii) offices held "at pleasure", and (iii) offices where there must be cause for dismissal, which included the chief constable's position. According to Lord Reid, only the last category of persons was entitled to procedural fairness in relation to their dismissal since both contractual employees and office holders employed "at pleasure" could be dismissed without reason.
-The principles established by Ridge v. Baldwin were followed by the Canadian Courts in Nicholson.
-Nicholson, like its U.K. predecessor, marked the return to a less rigid approach to natural justice in Canada.
THE MODERN COMMON LAW DOCTRINE: DIMENSIONS AND LIMITATIONS OF PROCEDURAL FAIRNESS:
Nicholson (1979) 1 SCR 311 (Ont.)
PRINCIPLE: The more serious the consequences of the dismissal, the more need for greater fairness. AND. The existence of a duty of fairness no longer depends on classifying the power involved as “administrative” or “quasi-judicial”.
Facts: Nicholson served as a constable for 15 months and was discharged by the board without being given an opportunity to make submissions. s.27 Police Act (1970) required an officer to be employed for 18 months before being entitled to a hearing and final disposition.
SCC Held: Appeal allowed (5-4 decision). Laskin declared the dismissal void on the ground that the officer fell into Lord Reid's third category and was therefore entitled to the same procedural protections as in Ridge v. Baldwin. The SCC says that the Board should have told him why his services were no longer required and given him an opportunity whether orally or written to be heard. In doing this, the court is trying to be deferential to allow Board to function how they wish, but wants to ensure procedural fairness.
- “Although the appellant clearly cannot claim the procedural protections afforded to a constable with more than 18 months’ service, he cannot be denied any protection. He should be treated ‘fairly’ not arbitrarily”.
- The existence of a duty of fairness no longer depends on classifying the power involved as “administrative” or “quasi-judicial”.
- i.e. the nature of the Board who dismissed him, it did not matter whether it was acting in an administrative or quasi-judicial fashion.
- The present case is one where the consequences to the appellant are serious indeed in respect to his wish to continue in a public office, and yet the respondent Board has thought it fit and has asserted a legal right to dispense with his services without any indication to him of why he was deemed unsuitable to continue to hold it. In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to respond. The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination. ... Status in office deserves this minimal protection, however brief the period for which the office is held.
- Bates v Lord Hailsham (1972) (UK) – “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”.
- Judicial and quasi-judicial decisions are subject to natural justice, all admin decisions are subject to fairness.
- Fairness is a lower threshold to natural justice. Maybe not right to oral hearing, but maybe written.
- Pearlberg v Vaty (1972) (UK) – “Fairness, however, does not necessarily require plurality of hearings or representations and counter representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed....”
- Russel v Duke of Norforlk (1949) (UK) – “... the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration”.
- Selvarajan v. Race Relations Board (1976) (UK) – In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.
Distinctions between judicial and administrative functions:
Martineau v Matsqui (1980) 1 SCR (Can.)
PRINCIPLE: courts need not distinguish between a duty to act fairly, and a duty to act in accordance with the rules of natural justice when applying to Administrative or Judicial/quasi-judicial decisions. Sliding scale with natural justice at the top (greater protection/rights) and duty to act fairly (less protection/rights).
(Pre-Nicholson, the SC had shown little or no sympathy to the procedural claims of inmates).
Facts: Martineau and Butters, inmates in a federal jail who committed a disciplinary offence, were disciplined, and alleged that they were not given a hearing. They made an application for certiorari (quash or set aside). The application was essentially based on the fairness requirement. They were met with the argument that certiorari can be used to review only judicial or quasi-judicial functions. This argument was rejected by the SC, which appeared to expand the limits of certiorari to include enforcement of procedural requirements generally.
SCC Held:
(1) SCC expanded the limits of certiorari to include enforcement of procedural requirements generally (not just judicial and quasi-judicial).
· “The order may go to any public body with power to decide any matter affecting the rights, interests, privileges or liberty of any person. The reason for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers”
(2) The courts should not treat natural justice and procedural fairness as two different standards dependent for their respective application on whether the function in issue was judicial or quasi-judicial on the one hand, or administrative on the other. Rather, procedural entitlements are on a spectrum or sliding scale.
- “The fact that a decision maker does not have a duty to act judicially, with observance of formal procedure which that characterization entails, does not mean that there may not be a duty to act fairly which involves importing something less than the full panoply of conventional natural justice rules”. In general, courts ought not to seek to distinguish between the two concepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework. The Federal Court Act, however, compels classification for review of federal decision makers”.
- With the 1992 proclamation of the amendments to the Federal Court Act, that particular need to make distinctions between judicial and administrative functions disappeared.
- There is something special about the corrections setting – decisions may have to be made quickly for safety to be restored (Jess’ notes).
-Canadian procedural fairness case law following Nicholson was marked by the gradual expansion of the duty of fairness to areas of administrative decision making, including decisions of correctional authorities affecting the rights, privileges, and interests of inmates (Cardinal) that had previously escaped jurisdictional scrutiny for compliance with the rules of natural justice.
NOTE: Cardinal v Director of Kent Institution (1985)
Principle: a duty of fairness (right to be heard and receive reasons) was required to prisoners who were denied release from segregation. AND any admin decision which is not legislative and effects rights of individuals, attracts fairness AND even if it is predicated that a certain result would incur, a fair hearing must still occur.
-In Knight, a majority of the SCC recognized that in dismissing its director, who helped this office at pleasure, a school board was bound by the duty of fairness.
-The four-judge majority embraced the conception of procedural fairness as a free-standing common law right, thus eschewing the need to find in the decision-maker’s enabling statute any provisions that expressly or impliedly conferred on the office-holder a right to be heard.
Knight v. Indian head School Division (1990) SCR (Sask)
Facts: The appellant board of education dismissed the respondent director of education when he refused to accept a renewal of his contract for a shorter term than the original. The respondent brought an action against the appellant alleging wrongful dismissal. The SCC held that the board did not need to show cause for the dismissal either under the contract of employment or under The Education Act. The respondent then argued that he was entitled to procedural fairness before being dismissed and that he had not been fairly treated. The court had to decide whether procedural fairness was due to an officeholder at pleasure.
Held: procedural fairness was due, but the requirements of procedural fairness had been satisfied. The appellant owed NO duty of fairness to the respondent. The board of education’s appeal was therefore allowed.
- “In my view, the appellant Board has made itself sufficiently available for discussion through meetings with the respondent and his lawyer so that each party's concerns were made fully known to the other. This can only lead to the conclusion that the respondent knew the reasons for his dismissal and was provided with every opportunity to be heard. The requirements of the duty to act fairly in the scope of the employer-employee relationship in the case at bar have been met. I therefore conclude that the respondent was properly dismissed and that his action must fail”.
Held: it did attract such a duty on the ground that the director's position had a "strong statutory flavour'" and could thus be qualified as a public office. In doing so, she specifically recognized that, contrary to Lord Reid's holding in Ridge v. Baldwin, holders of an office "at pleasure", were also entitled to procedural fairness before being dismissed. The fact that the director's written contract of employment specifically provided that he could be dismissed with three months' notice was held not to be enough to displace a public law duty to act fairly (quoted from Dunsmuir – check).
-OVERRULED on:
(1) office holders at pleasure were also entitled to a public law duty of procedural fairness before being dismissed, contrary to Ridge v Baldwin (Dunsmuir: office holders at pleasure are not).
(2) Employees under an employment contract are subject to a public law duty to act fairly before being dismissed (Dunsmuir: the law of contract governs employment contracts, not subject to the public law duty to act fairly).
“Neither the statute nor the contract accords a right to procedural fairness. The duty to act fairly does not form part of employment law but stems from the fact that the employer is a public body whose powers are derived from statute and must be exercised according to the rules of administrative law.”
A. General Duty of Fairness
-The existence of a general duty of fairness depends on:
(i) The nature of the decision to be made by the administrative body;
· A decision of preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such effect
o In this case the decision was final therefore need to act fairly
(ii) The relationship existing between that body and the individual (employer and employer); and
· The classifications of the nature of the employment is no longer necessary (between at pleasure or employee that must be removed with cause) because the administrative body is required to act fairly in both cases
o In this case the office was held at pleasure and this implied a duty to act fairly
o NOTE: this is NO LONGER true after Dunsmuir
(iii) The effect/impact of that decision on the individual’s rights (effect on the employee)
· There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual
o In this case, the loss of employment is a significant decision that justifies imposing a duty to act fairly
Let’s look at the most recent case:
Dunsmuir v New Brunswick (2008) SCC 9
PRINCIPLE: where a public employee is employed under a contract or employment, regardless of his or her status as a public office holder, the law of contract (pay in lieu of notice) is invoked, not public law AND office holders at pleasure are not entitled to a public law duty of procedural fairness (confirming Ridge v Baldwin).
--In Knight it was held that the holder of an office “at pleasure” was entitled to be given the reasons for his or her dismissal and an opportunity to be heard before being dismissed – OVERRULED BY DUNSMUIR:
“We are of the view that the principles established in Knight relating to the applicability of a duty of fairness in the context of public employment merit reconsideration. ... Where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law”.
“In our view, the existence of a contract of employment, not the public’s employee’s status as an office holder, is the crucial consideration”.
“... he was also a civil servant and, pursuant to s. 20 of the Civil Service Act, his dismissal was governed by the ordinary rules of contract. If his employer had dismissed him without notice and without cause he would have been entitled to claim damages for breach of contract. Even if he was dismissed with notice, it was open to him to challenge the length of notice or amount of pay in lieu of notice given. On the facts, the respondent gave the appellant four months' worth of pay in lieu of notice, which he was successful in having increased to eight months before the grievance adjudicator”.
“It is true that the remedy of reinstatement is not available for breach of contract at
common law”.
“In our view, the distinction between office holder and contractual employee for the purposes of a public law duty of fairness is problematic and should be done away with. The distinction is difficult to apply in practice and does not correspond with the justifications for imposing public law procedural fairness requirements. What is important in assessing the actions of a public employer in relation to its employees is the nature of the employment relationship. Where the relationship is contractual, it should be viewed as any other private law employment relationship regardless of an employee's status as an office holder”.
“The starting point, therefore, in any analysis, should be to determine the nature of the employment relationship with the public authority. Following Wells, it is assumed that most public employment relationships are contractual. A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness. Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies”.
“However, there may be occasions where a public law duty of fairness will still apply. We can envision two such situations at present. The first occurs where a public employee is not, in fact, protected by a contract of employment. This will be the case with judges, ministers of the Crown and others who "fulfill constitutionally defined state roles”.
THE BAKER SYNTHESIS:
-By the time the SCC rendered its judgement in Baker, the leading Canadian case on procedural fairness, the basic features of the duty had been set.
-Whether the duty of fairness applies to a particular decision depended on a variety of contextual factors.
-The “degree” of fairness required for a particular decision and the specific procedural content of the duty also hinge on an assessment of these and other factors, including deference to the procedural choices made by the decision-maker.
CONSTITUTIONAL AND QUASI-CONSTITUTIONAL SOURCES OF PROCEDURES
-Procedural rights also receive constitutional protection under the Canadian Charter of Rights and Freedoms.
-Under quasi-constitutional instruments, protection is given under the Canadian Bill of Rights and the Quebec Charter of Human Rights and Freedoms.
THRESHOLDS
-The previous section mapped out a veritable web of sources of procedural protections. The procedures conferred by the decision-maker’s enabling legislation and related delegated legislation will protect affected parties as a matter of course.
-Whether general procedural codes, common law procedural fairness and constitutional and quasi-constitutional sources are available to supplement these procedures, on the other hand, will depend on whether the THRESHOLD for their application has been met.
-The judge-made THRESHOLDS for the application of the duty of fairness have been incorporated into the THRESHOLDS for some general procedural codes, like Ontario’s SPPA and for the quasi-constitutional Canadian Bill of Rights.
DECISIONS OF A LEGISLATIVE AND A GENERAL NATURE
-In Knight the legislative functions were excluded from the ambit of any implied procedural requirements.
-Indeed, this notion of the exclusion of legislative functions had earlier found acceptance in the judgement of Dickson in:
Martineau v. Matsqui Institution 1980 1 SCR 60
“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards”.
· review by certiorari was available whenever a public body has power to decide "any matter affecting the rights, interests, property, privileges, or liberties of any person".
-There is considerable ambiguity with the SCC judgments.
-In particular, about whether hearing rights are denied because of the character of the decision-maker, the nature of the decision, or both.
-It concerns a decision made normally by the governor in council but on the basis of recommendations made by a Cabinet committee.
-Among many decisions that cabinets make are those that invite demands for some form of participation – for example, decisions on appeal from agencies that have held hearings, or decisions that affect particular individuals or groups.
CABINET AND CABINET APPEALS
-What counts as a legislative decision?
-Does a purely ministerial decision have to be taken by a Minister?
Canada (Attorney General) v. Inuit Tapirisat of Canada (1980) 2 SCR 735
PRINCIPLE: Generally, the rules of natural justice are not applicable to Cabinet (legislative) or policy decisions (since greater deference and to Cabinet).
Facts: Bell Canada seeking approval for a rate increase, CRTC approves the new rate structure for Bell. Tapirisat appeal the CRTC decision to the Governor in Council b/c they believed that an increase in rates should be accompanied by better service to the Inuit communities. There are two paths that Tapirisat could have taken to appeal the decision, 64(1) which is a Cabinet petition, or 64(2) which is an appeal with leave to the Federal Court of Appeal on a question of law or jurisdiction (National Transportation Act). The Cabinet ruled against Tapirisat, they then made a fairness claim (not treated fairly, written submissions not presented, nothing shared with Tapirisat) at the Federal Court trial division because it is a question of judicial review. They couldn’t go through 64(2) in the first place b/c there was no question of law before.
SCC Held: “...The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond review. If that body has failed to observe a condition precedent to the exercise of that power, the court can declare that such purported exercise is a nullity”. BUT, “I am unable to conclude that the issue of fairness arises in these proceedings on a proper construction of s. 64(1)”.
- It is obvious that parliament intends Cabinet to act in a different way than an administrative board – there are no standards or guidelines imposed or implied – parliament does not want to restrict Cabinet.
- It is a very broad power that the Cabinet has, they can hear petitions, but can also review on their own motion which is a very pure form of legislative action.
- The CRTC has a whole bunch of constraints on how they do their work which come from the legislature. In contrast, there are no constraints on the cabinet in 64(1) – there are no standards or guidelines on how they have to make their decision. This illustrates the legislature giving the Governor in Council discretion. BUT court says there is some sort of minimum standard:
- If they didn’t consider the petition at all, then the court would have said that was not fair.
- HOWEVER, because they did consider it, they read submissions, etc... that was sufficient.
- There is no requirement to hold a “hearing” so that subscribers to Bell can be heard – this is obviously not practical b/c of the volume of people that subscribe and the fact that it was done in the past simply shows the growth of the Canadian community.
· when a body is taking on delegated legislative functions and the subject matter is not an individual concern or right specific to the petitioner, it is most likely legislative decision making.
· “where the decision is directed at a specific individual and is based on factors particular to that individual, the function in issue will not be classified as legislative despite the political nature of the decision maker”.
Policy reasoning for allowing Cabinet to occupy this role à this provides govt with a quick and easy way to respond to changing public policies.
How do we know it’s a legislative decision?
· If it is a function performed in the past by government and legislature itself.
· Historically, this was a function determined by government.
· If it isn't of interest specifically to the petitioner, but affects a broad range of people (i.e. everyone with a phone), thus it looks like a policy decision.
BYLAW AND RULEMAKING:
Homex Realty and Development Co. Ltd. v. Wyoming (Village) (1980) SCC
PRINICPLE: if a decision affects a private individual in particular, it will not be considered legislative and the duty of fairness will apply (if the decision affected many people as do legislative decisions of general significance, then the duty of fairness would be less likely to be required since it has the potential of applying to a large amount of individuals).
Facts: Homex owns a subdivision and municipality wants Homex to service the new lots. Homex refuses to pay and the municipality introduces a bylaw which has the effect of deregistering the plan for the subdivision without giving prior notice to Homex. To have it registered, you need to go to the committee of adjustment for each individual lot, and this committee is able to impose conditions (such as making Homex pay). Homex claims they didn’t have the opportunity to be heard when council pass the bylaw which was a breach of the DOF.
SCC Held: Because the bylaw was aimed at limiting the rights of one individual (and not overwhelmingly in the public interest), there is a duty of fairness which would have been satisfied had the municipality given Homex the opportunity to be heard.
- “the right to a hearing results from the fact that the by-law interferes with the private property rights of this one owner”.
- “one cannot label an act “legislative” for the purpose of dispensing with fairness. A bylaw may, in the public interest, operate to the detriment of particular individuals but not without giving those individuals a right of hearing”.
- A purely ministerial decision, on broad grounds of public policy, will typically afford the individual little or no procedural protection. ... On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards, particularly when personal or property rights are targetted, directly, adversely and specifically.
Legislative ——————————————————————————— Judicial
Broad range of interest Individual Rights
“Polycentric” Full Duty of Fairness
No Duty of Fairness (DoF)
POLICY MAKING
-Once we move away from decision making that can be classified in any formal sense as legislative, the question that still remains is where the exclusion of decisions of a “general” as well as a “legislative” nature has its bite.
-It seems clear that this will have the effect of denying claims to procedural protections in relation to certain species of broadly based policy decisions.
-Where the impact of the decision being made is scattered, affecting a broad spectrum of the public in a generally undifferentiated manner, claims to participatory rights will be hard to justify (unless the legislation contains some indication of public participation or obligations of consultation).
Canadian Association of Regulated Importers v. Canada (Attorney General) (1993) Federal Court and CA
PRINCIPLE: The rules of natural justice are not applicable to legislative or policy decisions. Parliament could have inserted the duty to give notice and consult with the public, but it did not. The Minister could consult to be considerate, but has no obligation to. Facts: A ministerial decision changed the quota distribution system for the importation of hatching eggs and chicks and based the decision on a company’s market share instead of historical data. Certain importers were to be disadvantaged from the new scheme and brought a challenge saying that they should have been consulted before the decision was made. Federal Court decision (Reed) Held: · although the Minister was exercising a statutory power which had been delegated to him, the general decision that he was making was applicable only to a very small segment of the population. · Thus, some form of notice to the respondents was required as well as an effective opportunity to be heard. o just a general notice b/c it was such a small group in one industry. Federal Court of Appeal (Linden) Held: principles of natural justice are not applicable to the setting of a quota policy although they may be to individual decisions respecting grants of quotas.
- “Generally, the rules of natural justice are not applicable to legislative or policy decisions (quoting Inuit and Martineau)”.
- “Some may be damaged while others may gain by such a quota, but the exercise is essentially a legislative or policy matter, with which courts do not normally interfere. Any remedy that may be available would be political, not legal.”
- although it bring harm to the group, it is a legislative or policy exercise and as such, courts will not interfere.
- “It might have been a considerate thing for the Minister to give the respondents notice and an opportunity to be heard, but he was not required to do so”.
- “In essence, what the respondents are seeking here is to impose a public consultation process on the Minister when no such thing has been contemplated by the legislation”.
- Parliament could have inserted the duty to give notice and consult with the public, but it did not.
INDIVIDUALIZED DECISION MAKING BASED ON EXERCISE OF BROAD DISCRETIONARY POWERS
-Looking at Suresh v Canada (Minister of Citizenship and Immigration) [2002], concerns have to be raised about whether the individual interest at stake in cases like this should be subservient to broader public and political interests.
-Indeed, what this judgement highlights is that it presumably should not be enough for the government agency to assert broader policy considerations in defence to a procedural fairness argument.
-Part of the role of the courts in cases like this is that of evaluating the legitimacy and weight of those claims against the individual interests that is at stage with a view to determining whether there are any reasons of principle or utility for allowing that interest to be trumped at the procedural fairness level.
DECISIONS AFFECTING RIGHTS, PRIVILEGES, OR INTERESTS
-In Cardinal, the existence of a duty of fairness was that, whenever “rights, privileges or interests” were at stake.
-There have been many interpretations to this. If any of the interpretations to this was correct, there would be no need to treat “rights, privileges or interests” as a possible source for the exclusion or denial of claims.
-Thus, we do not start with the case of Cardinal. We start with the decision made by the Ontario CA which was decided almost immediately after Nicholson, but before Cardinal.
-The Re Webb judgement is important for a number of reasons, including its treatment of the intersection between procedural fairness claims and the Ontario SPPA and the sliding scale in procedural claims depending on the nature of the interests at stake.
-Even if the THRESHOLD no longer depends on a distinction between rights, on the one hand, and privileges and mere interests, on the other...the extent of the procedures to be accorded clearly CAN depend on the distinction between right on the one hand, and privileges and mere interests on the other hand.
Re Webb and Ontario Housing Corporation (1978) Ont. CA
PRINCIPLE: a privilege holder is entitled to a DOF (duty of fairness), like a holder of a right, however, to a lesser degree than a right holder.
Facts: Ontario Housing Corporation (OHC) owned an apt building rented for low market rent and was managed by Meridian. Webb and kids were tenants. In 1973, Meridian recommended to OHC that they should terminate Webb’s lease on the basis that her children were causing problems. Webb was provided with 2 letters that detailed the complaints against her and children, and although she could not read, someone came to her apartment to discuss the letters with her. The OHC brought an application to terminate lease under Landlord and Tenant Act and Webb applied for review of the OHC decision.
Held: Webb was treated fairly because she was advised of the case against her and was permitted to give an answer or remedy. The removal of such benefits did not attract the ‘full panoply’ of natural justice protections, only more limited procedural fairness obligations.
· Webb was granted a benefit when she became a tenant due to her being on welfare and the OHC, “in exercising its power of termination and thereby depriving the appellant of the benefit of the lease, was required, under the circumstances, to treat the appellant fairly by telling her of the complaints or case against her and giving her an opportunity, if she wished to make an answer to those complaints”
o If no notice is given, procedural fairness would not be met.
· “If no notice is given to a person who, as a result of an investigation by a public corporation in carrying out a public obligation, is in danger of losing an important benefit, and no opportunity is afforded to answer the "case" against him, such a procedure, in my view, would be unfair. Beyond that factual situation it may be that what constitutes fairness is, like beauty, to be found in the eye of the beholder”.
· “Once the appellant became a tenant she acquired a very real and substantial benefit because of her reliance on and eligibility for welfare. The determination to grant her this benefit was made when she was accepted as a tenant. That decision was one which, in my view, could be made by O.H.C. without any intervention of a rule or principle of procedural "fairness". However, once she became a tenant and thus "qualified" for and received the very real benefit of a reduced and subsidized rent, the situation changed”.
o Distinction that still stands is between the HOLDER of privilege, and APPLCIANT of privilege. The procedural entitlements in this case is restricted to people who already have the privilege to housing, NOT to those who are still applying for public housing.
· Once the threshold for DOF is crossed, still need to characterize if it is a right, privilege or interest in order to determine the type of DOF. A privilege will get less DOF than a professional license. There is also a distinction between the holders of the benefits and the applicants for the benefits (applicant may not have the same DOF protection). Privilege can be looked at in three situations: 1) applicant for privilege, 2) expectation of the privilege, and 3) forfeiture of the privilege (these have right to hearing b/c they will be stripped of benefit they already hold).
o NOTE: Hutfield modifies this by holding that even a privilege seeker can have DOF attached to decision.
o NOTE: Nicholson and Re Webb – reaffirmed and perhaps extended that the duty of fairness required of all persons or bodies exercising power even though the exercise of that power might be classed as administrative rather than judicial or quasi-judicial.
Importance: This case involved a decision about a privilege, but this is as big a deal that a decision affecting a right would have.
Hutfield v. Board of Fort Saskatchewan General Hospital District No.98 (1986) AB QB
PRINCIPLE: a minimal DOF (duty of fairness) may be owed to an applicant for privilege if the decision affects the applicant’s reputation.
Facts: Doctor applies to be appointed to medical staff at hospital so that he can obtain hospital privileges. An application for appointment is sent to the Board and is reviewed by the College of physicians, who make a recommendation and then a committee is set up which includes the Chief of Staff. The committee investigates the doctor and they make a recommendation to the Board. The first time the doctor applied the process was followed and the college recommended him but the committee denied him. In the second application, it went straight to the committee. Hutfield asked to appear before the board when it considered the application, but he was refused, and again the board rejected him and refused to give reasons. He sought certiorari to quash its decision and mandamus to compel consideration (Doctor is trying to get ‘hospital privileges’, i.e. he wants to work there).
Held: the decision was invalid because the second application was not sent to the college and the Board should have provided reasons for the denial of application. Even though the doctor was seeking to obtain a privilege, it was determined that a duty of fairness was owed to him.
-Factors contributing to the finding/situations in which DOF will be found:
(1) where a refusal of a licence casts a slur on the applicants reputation or financial stability the duty to act fairly may well require that the body should offer an opportunity for a hearing.
· i.e. it is an inference that Hutfield does not possess the credentials – slur on his reputation
· i.e. to be called to the bar you have to be person of good character, if you don’t get called to the bar that can be seen as slur on reputation
(2) the general interests of the public may be, and in the present case, are affected by the decision of the Board to grant or not to grant hospital privileges to the doctor.
· This process isn't in the public interest because it’s not transparent.
· In this case, at minimum you have to provide him with reasons – thus he could know what the deficiency in his application was and address it next time.
o Don’t have to go as far as having a hearing, but you have to give reason for his rejection.
INSPECTIONS AND RECOMMENDATIONS
-In the traditional doctrine, 2 functions were distinctive: investigating and recommending.
-Until the 1970s, the doctrine was clear: no hearings were required, and this proposition was a product of the general doctrine about the THRESHOLD – the functions were not judicial.
-We also see the lingering effects of this jurisprudence as recently as Knight, where L’Heureux-Dube stated that “a decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have that effect”.
-The doctrine changed in England during the 1970s in In re Pergamon Press [1971].
-Very shortly after Nicholson and Webb were decided, the issue came to be re-examined in a Canadian context in Abel
Re Abel and Advisory Review Board (1979) Ont Div Ct affirmed (1981) Ont CA
PRINCIPLE: if a non-dispositive decision or recommendation vitally affects/influences the final decision (rubber stamp decision) then a DOF applies.
-The key in determining whether a DOF applies:
(1) the degree of proximity between the investigation and the decision.
(2) the exposure of the person investigated to harm are matters of paramount concern.
Facts: Advisory Review Board is set up to annually review detentions of people who are found to be not guilty by reason of insanity. Process as per 29(1): Chair receives application, ARB conducts inquiry or can hold hearing to receive testimony, patient/representative may attend hearing, patient may call witnesses and cross examine, ARB may receive reports, and can interview people. In this case, lawyers requested disclosure from the ARB – wanted to see reports and other info on which ARB was going to make its decision. The ARB refused. Question – can the duty of fairness apply to these non-dispositive, recommendation type hearings? ARB doesn’t have final say in this – they make recommendation to the Lieutenant Gov. Council is saying that this is a rubber stamp situation, and the LG is not going to disagree with the ARB. Held: theBoard failed to meet the legal test of fairness. Not giving the applicant a chance to meet the case against him goes against the DOF, needed to give some form of disclosure. Although the chairman is not bound to follow the recommendations, it is most unlikely that he would go against the recommendation, therefore, the court says that the only chance to have the application granted is through the officer performing investigation.
-Test whether natural justice will apply: (1) degree of proximity (2) exposure of the person being investigated to the harm.
· “this application is virtually the only chance (albeit an annual chance) that the applicants have of avoiding a lifetime of incarceration. The effect of the recommendation of the ARB is for the applicants of the most vital concern”.
-The key in determining whether a DOF applies:
(1) the degree of proximity between the investigation and the decision.
(2) the exposure of the person investigated to harm are matters of paramount concern.
(1) the degree of proximity between the investigation and the decision.
· here the proximity is great.
· How many things could potentially intervene between the investigation and the decision?
o In this case, they said there was close proximity – not very many things could intervene to change the decision.
o If there were various things that the LG could take into acct when making their decision, then that would be a different case.
o Test of proximity – need to look at the connection between the decisions, if it is simply rubberstamping the courts will not disregard this, who has the practical authority to make the decision.
o It is important for counsel to look and see where the decision making power lies:
(i) if you are in front of the decision maker who has the power to make the decision to take away rights, privileges or interest, the DOF applies, and
(ii) if you are not in front of the decision maker, but you are in front of a body that has the practical ability to make the determination, the DOF also applies.
(2) the exposure of the person investigated to harm are matters of paramount concern”
· here there is significant harm to the person investigated.
-In practice, where is the actual determination being made?
· If you can argue that most of the decision is being made at the investigation stage then you can make an argument that DoF should apply.
Therefore
-What is apparent from Abel is that, even in the wake of Nicholson, not all recommendatory and investigative functions will attract an obligation of procedural fairness and this is reaffirmed in the Knight judgement, that a “decision of a preliminary nature will not in general trigger the duty to act fairly”
-While Abel DOES provide us with a useful functional test for discerning the “exceptional” cases in which that duty will be triggered, it is nonetheless not a bright line standard as the jurisprudence relating to those whose functions is primarily investigative illustrates graphically.
Dairy Producers’ Co-operative Ltd. v Saskatchewan (Human Rights Commission) [1994]
FACTS: following a complaint of workplace sexual harassment, the commission had appointed an officer to investigate and provide the commission with a report on whether there was a sufficient basis for recommending the appointment of a board of inquiry to adjudicate of the complaints. This was provided for in detail in regulations under the Act. The company was informed of the complaint and the investigating procedures. However, the company sought unsuccessfully to secure further and better particular of the complaint. Ultimately, the investigator reported that there was probable cause to believe that there had been an infringement of the Act. As a consequence, the commission, acting under its mandate, attempted to settle the matter. The company was provided with full details of the complaints and the evidence supporting them.
When the settlement failed, a board inquiry was established. Here, the company applied to the court for orders quashing the establishing of the board of inquiry and the investigator’s report that there was “probable cause” to believe that there had been an infringement of the Act. This application was based on allegations of breach of the rules of procedural fairness during the process leading up to the striking of the board of inquiry.
ISSUE: a) Did the investigating officer have a duty to act fairly? b) What is the effect of the “without prejudice” letter and addendum? c) What is the effect, if any, of the settlement negotiations?
HELD: Application dismissed. The investigator and the Commission acted appropriately throughout. There has been no breach of procedural fairness by either. If the applicant has any doubts as to the complaints, it must be met BEFORE the Board of Inquiry. It may confirm that the case is to meet is that set out in the addendum.
a) The investigating officer had NO power to affect the rights of the applicant. The Commission decided that if the matter were to proceed, it was decided by the Commission. So, if the complaint was not dismissed, there were to be settlement negotiations of the rights of the applicant. But this was not successfully completed and the Commission acted to set up the Board of Inquiry (even though it was not bound to do so). Thus, if the Commission decided to establish a Board of Inquiry, which it did, it had a duty to provide the applicant with the substance of the evidence against it before any hearing. Commission had a duty to act fairly!
b) Even though the applicant was provided with a highly detailed letter with a list of particulars prior to the negotiations, that was not acceptable. That objection was NOT renewable in argument and council.
c) If the applicant wished to impugn the conduct of the investigator in not giving the substance of the evidence to the applicant before her report and recommendation, and assuming the duty of procedural fairness existed, which I have found did not, it could have acted. Rather, the applicant chose to proceed with the negotiations, thus, waiving their right to object if it had one.
Therefore, the investigator and the Commission acted appropriately throughout. There has been no breach of procedural fairness by either. If the applicant has any doubts as to the complaints, it must be met BEFORE the Board of Inquiry. It may confirm that the case is to meet is that set out in the addendum.
NOTE: Irvine v Canada (Restrictive Trade Practices Commission) (1987)
3 factors to consider if fairness is required
(1) Character proceeding
(2) Nature of report and whether it is made public
(3) Penalty that will result when report is received.
Basically, what degree of procedural fairness needs to be done in order to render the rest of the decision fair.
EMERGENCIES
-On occasion, despite the fact that the basis for action will be the conduct of an individual and the consequences of that action, the imposition of sanctions or diminution in property rights, there will be no requirement of a prior hearing.
-That is in the case of emergencies.
-The leading SCC authority is:
R v Randolph (1966) SCR 260 (Can.)
Held: an interim order withdrawing the provision of mail services to an individual could be made without hearing when the statutory basis for making that decision was a belief that the mails were being used for criminal purposes.
- The action is interim only and is open to reassessment in the context of a subsequent hearing.
“Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision”.
“... it is likely that the court will pay considerable deference to the relevant authority’s judgment as to the urgency of the situation”.
-NOTE: It is highly likely that the court will pay considerable deference to the relevant authority’s judgement as to the urgency of the situation.
LEGITIMATE EXPECTATION
-In certain circumstances, procedures will be required by reasons of expectations generated in an affected person and not be entirely contingent on a detached analysis of the statutory power in question.
-Legitimate expectation arises in situations where “an expectation of a hearing arising out of express representations, a practice of holding such hearings or a combination of the two”.
-Legitimate expectation is important because it reflects the need for a regular, predictable and certain government dealings with the public (Mount Sinai Hospital).
l Doctrine has been affirmed by SCC but arguments made under it are very rarely successful.
R v. Liverpool Corporation (1972) QB CA (UK)
Facts: municipal officials had given express undertakings to the association that the number of taxi licences would not be increased without a hearing, and, subsequently, following a hearing, that there would be no increase unless a private Act of Parliament was procured.
Held: Denning was prepared to make promises of the officials binding but did not do so because it was a policy decision to mandate public participation. Denning did ground an entitlement on the factual situation which laid the groundwork for legitimate expectation.
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990) 3 SCR 1170 (Man.)
PRINCIPLE: Doctrine of LE is an “extension of the rules of natural justice and procedural fairness”. Not required in this case. Ruling gave recognition of the doctrine.
Facts: residents were told that no new developments would be allowed without consulting the residents
Held: “The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation”.
“The planning and zoning process is an elaborate structure designed to enable all those affected not only to be consulted but to be heard. The appellant availed itself of this process by making representations before the Community Committee. Even if the conduct of this Committee raised expectations on the part of the appellant, I am of the opinion that this would not justify this Court in mounting onto the elaborate statutory scheme yet another process of consultation”.
-St. Bonifacegave the hope that fairness could be used in a legislative decision making case, however Canada Assistance Plan draws a distinction between these decisions and legislative decisions:
Reference re Canada Assistance Plan (1991) 2 SCR 525 (BC)
PRINCIPLE: no procedural or substantial LE applied to Parliament implementing legislation. Government should not be bound (i.e. by its predecessor).
Facts: A cost sharing program was entered into by Federal and provincial governments to share costs of provincial social assistance and welfare programs. Section 8 said the agreement would continue in force so long as provincial law was in effect subject to the termination by consent or unilaterally by either party on one year’s notice. The federal govt capped their level of funding through the passage of bill due to deficit policy decisions. BC sues them on the grounds that they had a LE. Issue – whether provinces can expect a legitimate expectation from the government?
Held: Legitimate expectation does not extend to such agreements.
l “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”. ... “A restraint on the executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself”.
l Federal govt power is held in check by the political and democratic devices and not the courts
Baker
PRINCIPLE: Legitimate expectation never generates a claim to a substantive outcome, only to hearing entitlements.
l In Canada substantive expectations can generate an entitlement not to substantive outcomes but procedural protections if the decision maker is of a mind to defeat those substantive expectations.
l This is where we diverge from UK authorities. Legitimate expectations can only guarantee more fairness, it cannot guarantee a particular result.
l Post Baker, it has been confirmed that legitimate expectations will not create substantive rights but will create procedural rights when certain outcomes are expected.
If a certain outcome is expected, then you may have a greater guarantee of procedure.
Furey v. Roman Catholic School Board for Conception Bay Centre (1991) NF court
PRINCIPLE: LE will apply to an administrative decision (i.e. school board) affecting procedure. Where an official guarantees an outcome rather than a procedure, legitimate expectation would not apply. “Legitimate expectation creates procedural, not substantive rights”. AND There must be actual reliance, i.e. must have knowledge to rely on it. Facts: In 1989, the school Board notified parents and discussed with parents changes to schools in the area and followed a set of guidelines for those interactions and the parents voted at the end of the discussions. The end result of the discussion was to leave open the school currently in consideration in this case. In 1991 a board member brought a motion to close the school based on discussions that the parents were not involved in. The guidelines were not observed in this case, opposed to the 1989 discussions, and the parents were not notified. Held: this was an administrative decision and attracted a duty of fairness which was not satisfied. Court granted certiorari and the matter to be reconsidered.
l “... the decision of the school board in closing Assumption Elementary was an administrative decision, and not in any sense legislative. My understanding of the authorities is that legislative decisions are usually general decisions of broad application. Administrative decisions usually deal with specifics, as was the case here”.
l “The 1989 procedure, and subsequent communications, could not do otherwise than raise in the minds of the parents the expectation that there would be procedural fairness in future decision making with respect to school closure”.
-On Appeal (parents not represented): court reversed the judgment on the basis that they did not find any evidence that the parents had believed that past practices would be followed in this instance (no affidavit was submitted).
-Example of SCC making effort to limit the doctrine of legitimate expectation and public law estoppels:
Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) (2001) SCC
PRINCIPLE: a new Minister not abiding by what the old Minister had promised does not give rise to LE, but the original guarantee must be abided by the new Minister (court trying to avoid LE terminology).
Facts: A hospital had been functioning in violation of its license. It was operating under permit for long term care beds, but was providing short term care beds. Discussions took place with the minister and it was agreed that, if the hospital relocated to Montreal, its licence would be regularized. The hospital engaged in extensive fund-raising efforts and relocated. When it sought to have its licence updated, a different minister in a different government refused, primarily on the basis that he did not want to commit the government financially to this. Hospital sought mandamus to compel the minister to issue the revised licence.
Quebec Superior Court: refused to make such an order on the basis that the doctrine of legitimate expectation could not be used to achieve substantive outcomes.
Quebec Court of Appeal: accepted this, but ruled that the hospital was entitled to a revised licence on the basis of the doctrine of public law estoppels.
SCC Held: (Bastarache J) it is not necessary to deal with public law estoppels and legitimate expectation. The case turned on the fact that earlier ministers had already made a decision conditional on the hospital relocating and this was a decision that the current minister did not have any basis for overturning. As a consequence, the hospital had an entitlement to the formal issuance of a licence in terms of that initial decision.
Per McLachlin C.J. and Binnie J.: The current minister had made a patently unreasonable decision and failed to act in a procedurally fair manner in refusing the licence.
l “In this case, as stated earlier, the Minister's decision will be set aside through the application of the ordinary rules of procedural fairness. There is no need to expand either the availability or content of procedural fairness because of the conduct of successive Ministers which amounts, in this respect, only to an aggravating circumstance. There is, in short, no need to resort to the doctrine of legitimate expectations to achieve procedural relief and, as explained, substantive relief is not available under this doctrine”.
-Summary – court tried to manoeuvre around the doctrine of legitimate expectation and estoppel. Council argued for LE to be extended to this case, the court refused (trying to limit it). The court also refused to allow an estoppels argument, it appeared because it would enable one government to bind the next.
CONSTITUTIONAL AND QUASI-CONSTITUTIONAL ENACTMENTS
-We turn now to a consideration of the THRESHOLDS to the invocation of the procedural rights contained in the Charter and the Canadian Bill of Rights.
-There are 2 dimensions to the identification of these THRESHOLDS
a. there is the matter of the general reach of both these statutes.
-what areas of administrative decision making do they affect?
b. there are the thresholds established in each statute by the specific provisions containing procedural guarantees.
- We will only look at b.
BILL OF RIGHTS: SPECIFIC PROCEDURAL THRESHOLDS
-The Bill of Rights is a federal statute, applicable only to federal law.
-Although the Bill of Rights remains in force, it has received little judicial notice since its passage in 1960.
-This is so in spite of the fact that it has been referred to as quasi-constitutional.
Differences between the Bill of Rights and the Charter:
(1) The use of the terms “individual” and “person” in the Bill of Rights as opposed to “everyone in the Charter
Irwin Toy v Quebec (1989) – SCC held that “life, liberty and security of the person” in section 7 are attributes possessed only by natural persons, hence ‘everyone’ does not include corporations.
(2) The inclusion of “enjoyment of property” in s.1(a) of Bill of Rights.
-Deliberately, section 7 did not include protection for “property” rights.
(3) The attachment to s.2(e) of procedural guarantees to the “determination of rights and obligations”.
-While the Canadian Bill of Rights does not contain an equivalent to section 1 of the Charter, it was held in Air Canada c. Canada that, in determining the demands of the principles of fundamental justice for the purposes of section 2(e), the court should engage in a section 1 style, balancing process akin to that set out in R v Oakesto determine whether such a reading is justifiable, and if it is, does that mean that the inclusion of s.1 of Charter was unnecessary?
NOTE: While initially, the terms “rights and obligations” in s.2(e) was interpreted narrowly by the courts and restricted to the taking away of “strict, legal rights”, all that changed with the resurrection of the Bill of Rights in Singh.
Bill of Rights s.1(a) and s.2(e)
-s.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 1(a) protects the enjoyment of property, the deprivation of which must occur through the due process of law.
-s.2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(e) 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;
· Section 2(e) guarantees a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations.
NOTE: The question of whether the procedural protections in ss.1(a) and s.2(e) of the Bill of Rights could apply to legislative proceedings, or whether they were subject to a threshold similar to that established for common law procedural fairness, was only definitely answered by the SCC decision in:
Authorson v Canada (Attorney General) (2003) 2 S.C.R. 40
PRINCIPLE: NO procedural rights (specifically notice and hearing) are guaranteed by s.2(e), Bill of Rights regarding the passage of an Act of Parliament (all that is guaranteed is that the Bill is read three times) AND s.1(a), Bill of Rights does NOT guarantee any substantive right’s to property (money).
(although this decision affected a specific group, veterans, it was considered a legislative decisions and thus no duty of fairness is owed (Wells) and (Canada Assistance Plan)).
Facts: In 1990, the DVA began paying interest on the veteran accounts, which it had been authorized to do for decades, pursuant to the Financial Administration Act, however, only began to do so post-1990. However, Parliament chose to try and limit the Crown's liability for past interest by enacting s. 5.1(4) of the Department of Veterans Affairs Act:
5.1(4) No claim shall be made after this subsection comes into force for or on account of interest on moneys held or administered by the Minister during any period prior to January 1, 1990 pursuant to subsection 41(1) of the Pension Act, subsection 15(2) of the War Veterans Allowance Act or any regulations made under section 5 of this Act. While the DVA had administered the funds, they had not been invested, nor had they accrued interest. Authorson, on behalf of the class action, sued the federal Crown alleging breach of fiduciary duty and sought the interest lost on the funds. He also claimed procedural rights (notice and hearing) to contest the passage of s.5.1(4).
Issue: The respondent claimed a right to notice and hearing to contest the passage of s. 5.1(4) of the Department of Veterans Affairs Act.
Answer: In 1960, and today, no such rights of notice and hearing to legislative action exists. Long-standing parliamentary tradition makes it clear that the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislation within Parliament's competence is unassailable.
· “A taxpayer could not claim procedural protections against a change in income tax rates that adversely affected him”.
· Wells v. Newfoundland (1999) – “... legislative 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.
· Reference re Canada Assistance Plan – “the rules governing procedural fairness do not apply to a body exercising purely legislative functions”.
-The submission that a court can compel Parliament to change its legislative procedures based on
the Bill of Rights must fail.
Procedural Rights :
-Section 2(3), Bill of Rights – s.2(3) does not impose upon Parliament the duty to provide a hearing before the enactment of legislation.
-Its protections are operative only in the application of law to individual circumstances in a proceeding before a court, tribunal or similar body.
· applies only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determines individual rights and obligations.
Substantive Due Process Rights in Property:
-Section 1(a), Bill of Rights - Parliament has the right to expropriate property if it made its intention clear.
-Here, to the disadvantage of the respondent, Parliament's expropriative intent was indeed clear and unambiguous.
-The provision, s. 5.1(4) leaves no doubt that the respondent has no claim for interest. Since he would have had no substantive right against a clear and unambiguous expropriation in 1960, the Bill of Rights can offer him no such protection today.
· Manitoba Fisheries Ltd. v. The Queen (1979) – Although the Court ordered compensation in that case, Ritchie J. made clear that Parliament could effect a taking without just compensation if it did so specifically.
o Thus, no guarantee of substantive due process.
Held: The respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights do not grant procedural rights in the process of legislative enactment. They do confer certain rights to notice and an opportunity to make submissions in the adjudication of individual rights and obligations, but no such rights are at issue in this appeal.
· s.5.1(4) of the Department of Veterans Affairs Act is not inconsistent with s.1(a) or s.2(3) of the Bill of Rights.
SECTION 7 OF CHARTER: SPECIFIC PROCEDURAL THRESHOLDS:
-Section 7 is the principal source of procedural protections.
-s.7 = 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 impact of section 7 of Charter on administrative proceedings was first considered by the SCC in Singh:
Singh v. Canada (Minister of Employment and Immigration) (1985) SCC
PRINCIPLE: s.7 applies to “everyone” in Canada (claimant refugees) AND s.7 does not always require an oral hearing.
Facts: The appellants were all convention refugee claimants who were landed in Canada (do not yet have Convention refugee status). Under the procedure then in place, the minister, acting on the advice of the Refugee Status Advisory Committee, had determined that they were not convention refugees. They all then applied to the Immigration Appeal Board for a redetermination of their status. However, their applications were not referred to an oral hearing because the board determined on the strength of the material submitted by the applicants that there were no reasonable grounds for believing that they could establish their claims at a hearing. The appellants then applied to the Federal Court of Appeal for review of the board’s decision alleging that the statutory scheme infringed section 7 of the Charter. The applications failed and the appellants secured leave to appeal to the SCC.
Issues:
(a) The appellants are not at this stage entitled to assert rights as Convention refugees; their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not.
(b) The appellants claim they did not have a fair opportunity to present their refugee status claims or to know the case they had to meet.
SCC Held: The adjudication procedures of the Immigration Act were inconsistent with s.7 of the Charter. A case with such a serious consequence should have an oral hearing and give claimants reasons for denial in order for them to respond appropriately on appeal. Utilitarian reasons (economic or time constraints) will not justify s.7 to be limited by s.1 on this occasion. Decision of the Immigration Appeal Board set aside and application remanded to the Board.
Wilson J –The Application of the Charter
Are the Appellants entitled to the protection of s.7?:
“…I am of the view that the rights which the appellants are seeking to assert are ones which entitle them to the protection of s. 7 of the Charter. It is necessary therefore to consider whether the procedures for the determination of refugee status as set out in the Act accord with fundamental justice”.
· “everyone” in s.7 includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.
· For purposes of the present appeal it is not necessary, in my opinion, to consider whether such an expansive approach to "security of the person" in s. 7 of the Charter should be taken. It seems to me that even if one adopts the narrow approach advocated by counsel for the Minister, "security of the person" must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. … In my view, the denial of such a right must amount to a deprivation of security of the person within the meaning of s. 7.
Do the procedures set out in the Immigration Act for the adjudication of refugee status claims meet the test of procedural fairness (test in Duke v The Queen (1972) SCR)?:
-Concept of judicial fairness set out in Duke v The Queen – “without attempting to formulate any final definitions of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case”.
· “… procedural fairness may demand different things in different contexts. Thus it is possible that an oral hearing before the decision-maker is not required in every case in which s. 7 of the Charter is called into play. However, I must confess to some difficulty in reconciling Mr. Bowie's argument that an oral hearing is not required in the context of this case with the interpretation he seeks to put on s. 7. If "the right to life, liberty and security of the person" is properly construed as relating only to matters such as death, physical liberty and physical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairness would invariably require an oral hearing. I am prepared, nevertheless, to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances”.
· “In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing”.
· As I have suggested, the absence of an oral hearing need not be inconsistent with fundamental justice in every case. My greatest concern about the procedural scheme envisaged by ss. 45 to 48 and 70 and 71 of the Immigration Act, 1976 is not, therefore, with the absence of an oral hearing in and of itself, but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet.
o problem in this statutory scheme is that applicant does not have a chance to state their case and does not know the case he has to meet.
o it is an adversarial proceeding and applicant is in unfair position because he must establish on balance of probabilities that Minister was wrong without having knowledge of Minister’s case.
Opportunity to know the case they had to meet?:
· The applicant is entitled to submit whatever relevant material he wishes to the Board but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister's case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of "fundamental justice" as set out in s. 7 of the Charter.
· Under the Act as it presently stands, however, a refugee claimant may never have the opportunity to make an effective challenge to the information or policies which underlie the Minister's decision to reject his claim. Because s. 71(1) requires the Immigration Appeal Board to reject an application for redetermination unless it is of the view that it is more likely than not that the applicant will be able to succeed.
· I am accordingly of the view that the procedures for determination of refugee status claims as set out in the Immigration Act, 1976 do not accord refugee claimants fundamental justice in the adjudication of those claims and are thus incompatible with s. 7 of the Charter. It is therefore necessary to go forward to the third stage of the inquiry and determine whether the shortcomings of these procedures in relation to the standards set out by s. 7 constitute reasonable limits which can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter.
Can the procedures by saved under s.1 of the Charter?:
Council for the Minister argued that the Immigration Appeal Board was already subjected to a considerable strain in terms of the volume of cases which it was required to hear and that a requirement of an oral hearing in every case where an application for redetermination of a refugee claim has been made would constitute an unreasonable burden on the Board's resources.
· Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr. Bowie can constitute a justification for a limitation on the rights set out in the Charter. Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1.
· Even if the cost of compliance with fundamental justice is a factor to which the courts world give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1.
o Balancing of interests – individual’s interests and the governments.
Beetz J – Canadian Bill of Rights:
-Like my colleague Madame Justice Wilson, whose reasons for judgment I have had the advantage of reading, I conclude that these appeals ought to be allowed.
-But I do so on the basis of the Canadian Bill of Rights … more particularly with s.2(e).
· What remains to be decided is whether in the cases at bar, the appellants were afforded "a fair hearing in accordance with the principles of fundamental justice". … I have no doubt that they were not.
· What the appellants are mainly justified of complaining about in my view is that their claims to refugee status have been finally denied without their having been afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claim on the merits. They have actually been heard by the one official who has nothing to say in the matter, a senior immigration officer.
· I do not wish to suggest that the principles of fundamental justice will impose an oral hearing in all cases.
· 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.
Notes:
· one consequence of Singh was that it rendered the system of refugee claim determinations immensely expensive and unworkable.
o Is this the kind of consideration one that should at all affect courts in their judgments as to the protections afforded by section 7?
· Now, Canada will no longer accept as refugee claimants those who arrived here by way of a “third safe country”.
o Does Singh provide any basis for a claim that this provision is a violation of the Charter? Can Canada turn away a refugee claimant without a hearing in such circumstances?
· Wilson J emphasized that “life, liberty and security of the person” are three distinct interests, and that it is incumbent on the Court to give meaning to each of these elements.
Chiarelli v. Canada (Minister of Justice) (1992) 1 SCR 711 (Can)
PRINCIPLE: Balance of interest under section 7 – an individual has an interest in a fair procedure, however, the state also has an interest in conducting national security and criminal intelligence investigations and in protecting police sources.
Facts: Chiarelli, a permanent resident of Canada, was deported because of a conviction for an offence that carried with it the possibility of a term of imprisonment for five or more years. In such cases, a deportation order was automatic, however there was a right of appeal to the Immigration Appeal Board. C commenced an appeal, but before it could be heard a report was made to the Security Intelligence Review Committee (SIRC) that if C is allowed to remain in Canada, he would be involved in serious organized crime. Part of the Security Intelligence Service Act provided that, while persons were entitled to a hearing, they were not entitled “to be present during, to have access to or to comment on the representations of any person”.
SCC Held: section 7 rights not violated on a balance of interests calculation under section 7. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire the information (interest in protecting how the police received information to base their decision on).
· “Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure followed by the Review Committee in this case did not violate principles of fundamental justice.
NOTE: Would it have been more appropriate to have dealt with the issue of access to relevant information in the context of a section 1 justification exercise rather than as part of a balancing of interests calculation under section 7?
Wilson v British Columbia (Medical Services Commission) (1988) (BC CA)
PRINCIPLE: Liberty, in s.7, is not confined to mere freedom of bodily harm. Section 7 does not protect property or pure economic rights, however, will cover … livelihood which may have an incidental economic component.
Facts: BC wanted to limit the total number of practicing doctors and places where they could work. The practitioners were assigned a number in order to bill for services under the health care plan. New doctors had to apply to commission in order to receive a number and paid for services. The plaintiff’s were doctors whose personal circumstances presented different elements of the claim; for example, some sought to come from outside the province and had been denied ‘practitioner numbers”, while others had been granted numbers subject to geographic restrictions. “The appellants’ case is that the government has deprived them of the opportunity to pursue their profession, or has restricted their mobility in such a way as to deprive them of “liberty” in the broad sense in which that freedom is to be interpreted under the Charter.
Issue: The question then arises whether “liberty” in s.7 is broad enough to encompass the opportunity of a qualified and licensed doctor to practice medicine in BC without restraint as to place, time or purpose, even though there is an incidental economic component to the right being asserted (i.e. the doctors bill the government for each patient).
Held: the scheme is so procedurally flawed that it cannot stand.
“Liberty” within the meaning of s.7 is not confined to mere freedom from bodily restraint. It does not, however, extend to protect property or pure economic rights. It may embrace individual freedom of movement, including the right to choose one’s occupation and where to pursue it, subject to the right of the state to impose, in accordance with the principles of fundamental justice, legitimate and reasonable restrictions on the activities of individuals.
Reason why this issue is not ‘economical’:
· “In considering the economic interests involved we must not overlook the fact that the plan does not guarantee an income to doctors. It ensures that a percentage of the bills submitted by physicians for medical services performed for insured patients will be paid”.
· “Furthermore, we are not persuaded that the appellants are pursuing a mere economic interest in the nature of an income guaranteed by the government. The impugned enactments go beyond mere economic concerns or regulation within the profession”.
Section 6 Mobility rights or section 7?:
· “It may be argued that if movement within the province is a protected freedom that such right must be found in s.6. We do not agree. The Charter is not a statute containing a number of watertight compartments. It is not a document which is to be given a narrow and legalistic interpretation”.
· “We are of the opinion, therefore, that the geographic restrictions imposed by government on the right to practice medicine in BC constitute a violation of the right to liberty protected by s.7 unless that right has been removed in accordance with the principles of fundamental justice, or unless the deprivation can be demonstrably justified under s.1 of the Charter”.
o Therefore there is a right to practice ones chosen profession.
o the court says that the govt needs to provide reasons for denying applications and needs to distribute information about other doctors locations in the province à cannot be arbitrary deprivation which is what court was upset about.
Critique à this decision is coming from another self-regulated profession therefore the courts could be protecting them.
New Brunswick (Minister of Health and Community Services) v. G(J.) (1999) SCC
PRINCIPLE: security of the person under s.7 is protects physical and psychological interference (i.e. separation of child from parent).
Facts: Administrative proceeding in which mother was at risk of losing custody of children for another 6 months. The question is whether fundamental justice requires her to be provided with legal aid? However for this to be determined, it had to be found that custody affected her security of the person.
SCC Held: The threshold for violation of security of person had been crossed because separation of parent and child has profound effects on both. A hearing which may allow a parent to lose their child is serious. Right to security of person protects both the physical and psychological integrity of the individual (Morgentaler). Thus, she is entitled to state funded council.
· Removing children from parent would constitute a serious interference with the psychological integrity of the parent.
SCC found she should be provided with state funded council. 3 factors to be considered:
(1) Seriousness of interests at stake
o Here they say 6 months is long time to be separated from parents
o This is definitely a serious issue at stake
(2) Complexity of the proceedings
o She wouldn’t be able to represent herself
(3) Parents’ capabilities
o Would they be able to put the case together on their own?
o This case was adversarial and complicated – everyone else was represented by council and interveners were also involved
-Minority: agreed that security threshold had been breached, and argued that liberty as well had been breached b/c it denied the parent the right to make decisions on behalf of children and guide their upbringing.
NOTE Remedy ultimately leaves this as a discretionary choice of the trial judge.
· They don’t have to give council if the costs are too extreme.
Blencoe v. British Columbia (Human Rights Commission) (2000) 2 SCR 307 BC
Facts: Blencoe was minister in BC govt and accused of sexually harassing women. He was removed from Cabinet and women filed complaint with BC Council of Human Rights. The investigation into claims didn’t conclude for 30 months, and Blencoe applied for judicial review to have the complaints stayed because he claimed the Commission had lost jurisdiction due to unreasonable delay in processing the complaints. The respondent alleged that the unreasonable delay caused serious prejudice to him and his family that amounted to an abuse of process and a denial of natural justice. He argued that there was unreasonable delay and their process prejudiced him and his family, and was therefore a violation of s.7 rights
Held: Appeal allowed. The respondent’s s.7 rights were not violated nor did the conduct of the Commission amount to an abuse of process.
(A)Does the Charter apply to the actions of the British Columbia Human Rights Commission?
The Charter applies to the actions of the commission.
· The mere fact that a body is independent of government is not determinative of the Charter's application nor is the fact that a statutory provision is not impugned.
· Bodies exercising statutory authority are bound by the Charter even though they may be independent of government (confirmed in Eldridge - hospital).
· With respect to the claim that the Commission exercises judicial functions and is thereby not subject to the Charter – rejected. Slaight Communications Inc. held that the Charter applies to the orders of a statutorily appointed labour arbitrator. The facts in Slaight and the case at bar share at least one salient feature: the labour arbitrator (in Slaight) and the Commission (in the case at bar) each exercise governmental powers conferred upon them by a legislative body.
(B) Have the respondent's s. 7 rights to liberty and security of the person been violated by state-caused delay in the human rights proceedings?
-The court treats ‘life, liberty and security of the person’ as three different rights.
-The protection of security of the person extends beyond the criminal law (New Brunswick (Minister of Health and Community Services) v G(J)). Section 7 can extend beyond the sphere of criminal law, at least where there is “state action which directly engages the justice system and its administration”.
-Liberty interest – “the autonomy protected by section 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence”
· The state in this case has not prevented Blencoe from making any fundamental personal choices.
· Thus, the interests sought to be protected do not fall within the ‘liberty’ interest protected.
· Thus, liberty argument fails, government is not preventing him from making life choices.
-Security of the person - “security of the person has been held to protect both the physical and psychological integrity of the individual” and where psychological integrity of person is at issue “security of the person is restricted to serious state imposed psychological stress (R v Morgentaler)”.
· Stress, anxiety and stigma may arise from any criminal trial, human rights allegation, or even civil action, regardless of whether the trial or process occurs within a reasonable time.
· While it is incontrovertible that the respondent has suffered serious prejudice in connection with the allegations of sexual harassment against him, there must be a sufficient causal connection between the state-caused delay and the prejudice suffered by the respondent for s. 7 to be triggered. à doesn’t really matter what is found here b/c of next finding.
· Thus, publicity is what caused his prejudice which is NOT a state action.
o Bastarache J detailed the impact of the complaints and proceedings on Blencoe’s life and that of his family but noted that these were mostly consequences that had occurred before there was any delay.
· Serious psychological stress – the stress, stigma and anxiety suffered by Blencoe did not deprive his right to security of the person. The framers of the Charter chose to use LLS which limits s. 7 to these interests.
-Summary of Liberty/Security interest:
“Few interests are as compelling as, and basic to individual autonomy than, a woman's choice to terminate her pregnancy, an individual's decision to terminate his or her life, the right to raise one's children, and the ability of sexual assault victims to seek therapy without fear of their private records being disclosed. Such interests are indeed basic to individual dignity (note: these are all individual choices which the government is restricting). But the alleged right to be free from stigma associated with a human rights complaint does not fall within this narrow sphere. The state has not interfered with the respondent's right to make decisions that affect his fundamental being. The prejudice to the respondent in this case, as recognized by Lowry J., at para. 10, is essentially confined to his personal hardship. He is not "employable" as a politician, he and his family have moved residences twice, his financial resources are depleted, and he has suffered physically and psychologically. However, the state has not interfered with the respondent and his family's ability to make essential life choices. To accept that the prejudice suffered by the respondent in this case amounts to state interference with his security of the person would be to stretch the meaning of this right”.
(C) If the respondent's s. 7 rights were not engaged, or if the state's actions were in accordance with the principles of fundamental justice, was the respondent entitled to a remedy pursuant to administrative law principles where the delay did not interfere with the right to a fair hearing?
· In admin law, there must be proof of significant prejudice which results from an unacceptable delay and in this case, proof of prejudice has not be demonstrated to be of sufficient magnitude to impact on the fairness of the hearing (does not impact getting a fair hearing).
· Need to balance the personal claim and the general public interest à not fair to the original complainants to cease the proceeding, there is a public interest in having the claims heard and adjudicated.
(D) If the respondent is entitled to Charter or admin law remedy, was the stay of proceedings an appropriate remedy for this case? / Was the delay unacceptable?
· The Commission handled this complaint in the same way that it handles other complaints. B had to show that delay was unacceptable to the point of being so oppressive as to taint the proceedings à he did not do this.
o The basic finding was that there was continuous movement on the file
CONCLUSION
-It cannot be said that the respondent’s s.7 rights were violated nor that the conduct of the Commission amounted to an abuse of process.
-However, I emphasize that nothing in these reasons had any bearing on the merits of the case before the Tribunal.
-The fact that most human rights commissions experience serious delays will not justify breaches of the principles of natural justice.
-I would allow the appeal. The CA decision is set aside and the Tribunal should proceed with the hearing of the Complaints on their merits.
-Due to the lack of diligence displayed by the Commission, under the court’s discretion under s.47 of Supreme Court Act to award costs against the Commission in favour of Blencoe, Willis, and Schell.
Dissent:
· should have first looked to admin law delay as opposed to Charter but agree that stay of proceedings was not warranted.
· Wanted to come up with a remedy, but ran into the same problem as majority.
o Wanted to grant him stay of proceeding but this would be unfair to the plaintiffs bringing the claim.
· The delay affected the procedural fairness, however even if this was found, what type of remedy could have been awarded b/c it is not fair to stay the proceeding.
o delay affected not only the proceeding, but B’s life which is wrong.
· An expedited hearing is the most that they could have ordered.
GENERAL PROCEDURAL STATUTES
-Like the other sources of procedures considered in this chapter, general procedural statutes comprise THRESSHOLDS governing the application of their specific procedural protections.
-These Thresholds are:
Ontario Statutory Powers Procedure Act (SPPA) (p251)
Alberta Administrative Procedures and Jurisdiction Act
British Columbia Administrative Tribunals Act
Quebec Act Respecting Administrative Justice
The Level and Choice of Procedures
LEVEL OF PROCEDURES
-Review:
àWhereas the rules of natural justice had previously required procedural safeguards only where decision makers exercised judicial or quasi-judicial functions, common law procedural fairness requirements extended beyond these to administrative decisions (Nicholson)
àNicholson also made clear that what constitutes sufficient procedural fairness protections –the level or content of procedural fairness required by the common law – depends on the context in which a specific decision is made.
àIndeed, the procedural fairness obligations of decision makers lie on the spectrum between the trial-type procedures (in-person hearing, full disclosure rights) appropriate for decision-makers exercising judicial functions and more informal procedures (written notice and opportunity to comment) as in Webb.
àIn the cases since Nicholson, the courts have incrementally identified factors or considerations to assist in their assessment of how full the procedural obligations of specific decision-makers must be – where they fall on the procedural fairness spectrum. Unsurprisingly, many of these factors are discussed in ch3 on the common law threshold because both threshold and content analysis relate to a decision-maker’s position on the spectrum.
àIn Baker, the SCC sought, for the first time, to law out a methodology to determine the appropriate content of procedural fairness by setting out a non-exhaustive list of 5 factors or considerations to guide lower courts and decision-makers confronting this question.
-We move now to a consideration of the content of procedural entitlements once the threshold to the assertion of any procedural claims has been crossed.
· At this stage we have covered threshold analyses and are now looking at “how much” fairness is due in any situation.
-As described in Knight, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.
-The requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration.
-Generally, the legislature decides the content of the duty of fairness in setting up the tribunals and their governing statutes, and the tribunals then further decide the specific contents of the duty of fairness in setting up the specific rules.
Baker
5 Factors to look at when deciding how much fairness is needed (i.e. what procedure is needed):
(1) Nature of decision being made
· The more the procedure and the more it looks like a judicial type-decision/closer to trial model, the more a DoF will be required.
(2) Nature of the statutory scheme
· If it’s the final decision it requires more fairness than a preliminary decision.
o When the decision is determinative of the issue and further requests cannot be submitted.
· If there is right to appeal, there will be less fairness owed.
o Greater procedural protections when no appeal procedure is provided within the statute.
(3) Importance of decision to individual affected
· More important = more fairness required.
o The more important the decision is to the lives of those affected and the greater its impact on that person the more stringent the procedural protection that will be mandated.
· Tricky thing is figuring out what is important in the context.
(4) Legitimate expectations
· Can only give more procedure – doesn’t guarantee substantive outcomes.
· if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness, as well if a claimant has a legitimate expectation that a certain result will be reached in their case, fairness may require more extensive procedural rights than would otherwise be accorded.
(5) Take into account the decisions made by the tribunal (choices of procedure)
· 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.
· Some attention to consequences of requiring more procedure can also impact fairness for other claimants.
o Think of Singh – if oral hearing is required for every refugee claimant, how would this impact the rights of other future refugees? Maybe longer waits?
o Might allowing more procedure actually undermine fairness in the future?
A PERSPECTIVE
-The framework articulated by the SCC in Baker enables courts and tribunals to assess, in a coherent and systematic manner, where on the spectrum of procedures required by the common law duty of fairness – from notice and comment procedures to trial-type hearings – a particular decision should fall.
-As a bridge to understanding pre-hearing, hearing, and post-hearing procedures (including notice); in-person hearings; discovery; disclosure; representation; and reasons, consider the following perspectives regarding: what are the justifications for giving hearings?
-The meaning of “due process of law” has varied over time and so has the approach of the courts.
THE CHOICE OF PROCEDURES
-We now move to a consideration of the content of procedural entitlements once the threshold to the assertion of any procedural claims has been crossed.
-The nature and extent of procedural claims that are made by applicants for JR does not emerge fully from the discussion of sources and thresholds from ch3.
-Further elaboration is required that focuses on particular issues of contemporary currency – anticipatory rights in rulemaking and, more generally, the procedural dimensions arising out from pressures generated within certain tribunals for institutional responsibility for and influence on decisions in particular matters.
-Indeed, as the threshold for the assertion of procedural claims has been lowered, the issue of procedural content has become that much more prominent and perhaps controversial.
-The lowering of the threshold also coincided with an escalating crisis of confidence in the adversarial model as reflected in the processes of the ordinary courts of the land (increased costs of litigation). There has also been greater openness or transparency in the way in which administrative agencies and tribunals do business (access to info, and more timely access to all material to upcoming hearings and reasons for decision)...
-Accommodations had to be made to reflect all these realities. As a consequence, courts engaged in JR of administrative action on procedural grounds were expected to be much more creative and expansive in their thinking about issues of procedural design.
-The Charter added further complexity to this domain. The difficult question is: do principles of fundamental justice call for greater or different procedures than the common law rules of natural justice or procedural fairness?
-Faced with all of the uncertainties generated by the common, the Canadian Bill of Rights, and the Charter as to the detail of procedural obligations, decision-makers themselves have more and more come to realize the importance of procedural design.
-Indeed, even prior to the emergence of the procedural fairness doctrine, there was much debate about the desirability of legislated general procedural codes (the SPPA)
-Q – what are the general principles or ways of thinking that should govern choice of procedures?
-The U.S.A cases illustrate this: Goldberg v Kelly [1970]; Matthews v Eldridge [1976]
Suresh v. Canada (Minister of Citizenship and Immigration) (2002) 1 SCR 3 (Can)
PRINCIPLE: case follows the 5 Baker factors to conclude that s.7 required procedural protections, but not to the extent of a full oral hearing where torture upon deportation was possible.
Facts: S was granted refugee status in 1991; then applied for permanent residence status. He was refused and a security certificate under section 53(1) of the Immigration Act was issued to the effect that S was a danger to the security of Canada. Issuance of a security certificate is based on info. from Canadian Security Intelligence Service (CSIS). The info which the certificate is based on is secret and not disclosed to the “accused” – the judge sees evidence and assesses whether it is reasonable. In this case the judge says it is reasonable. If S was returned to Sri Lanka there is potential for him to face torture. Minister sent notification to S that she is considering issuing a “Danger Opinion” – this essentially constitutes notice. She would have to find that he is a danger to the security of Canada – if she finds that he is, she could send him back to Sri Lanka notwithstanding the possibility of torture. S sends in documents to be considered, indicating the torture of Tamil Tigers by the government, and also sent in written arguments. An immigration officer also submitted a memo based on CSIS intelligence to which S has no access. Said he would not face torture on his return, and that he would be a danger to the security of Canada if he were to stay. NOTE that the primary question for the Minister at this stage is whether S is a danger to security of Canada. Minister issues the Danger Opinion – s.53(1). This is when he appeals for JR. Fed Crt – dismissed. FCA – Dismissed. Now it’s before SCC.
Issue: Question of procedural fairness and s.7 fundamental justice. Was the Danger Opinion made in accordance with principles of Fundamental Justice?
Held: Based on the 5 Baker factors below, the court was of the opinion that the procedural protections required by s. 7 in this case do not extend to the level of requiring the Minister to conduct a full oral hearing or a complete judicial process. However, they require more than the procedure required by the Act under s. 53(1)(b), that is, none, and they require more than Suresh received.
· Held – NO the decision was NOT made in accordance to principles of fundamental justice.
· Decisions sent back to Minster for redetermination.
· The problem was that there were not adequate procedural safeguards.
o S didn't have access to the case that was against him that he had to meet.
o Principle of natural justice includes an opportunity to know and meet the case against you – i.e. an opportunity to be heard.
o He does not have to have an oral hearing, but does have to have an opportunity to make submissions to argue the case against him.
-Section 7 protects substantive as well as procedural rights, therefore it is appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of section 7.
- The factors determining the content of DoF:
1) Nature of decision (i.e. administrative or judicial type) – nature of decision doesn’t indicate weak or strong procedural safe guards.
· “The nature of the decision to deport bears some resemblance to judicial proceedings. While the decision is of a serious nature and made by an individual on the basis of evaluating and weighing risks, it is also a decision to which discretion must attach. The Minister must evaluate not only the past actions of and present dangers to an individual under her consideration pursuant to s. 53, but also the future behaviour of that individual. We conclude that the nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards”.
2) Nature of the statutory scheme – suggests the need for strong procedural safeguards.
· “Under s. 53(1)(b) ... there is no provision for a hearing, no requirement of written or oral reasons, no right of appeal -- no procedures at all, in fact. As L'Heureux-Dubé J. stated in Baker, supra, "[g]reater procedural protections ... 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) Importance of decision to individuals – this factor militates in favour of heightened procedural protections under s.53(1)(b).
· “... the appellant's interest in remaining in Canada is highly significant, not only because of his status as a Convention refugee, but also because of the risk of torture he may face on return to Sri Lanka as a member of the LTTE. The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter. Deportation from Canada engages serious personal, financial and emotional consequences. It follows that this factor militates in favour of heightened procedural protections under s. 53(1)(b). Where, as here, a person subject to a s. 53(1)(b) opinion may be subjected to torture, this factor requires even more substantial protections”.
4) Legitimate expectation – this is not taken into account, Baker says that this is not always a relevant factor.
5) Choice of procedures – minister is allowed a lot of discretion in this case therefore a lot of deference must be provided, the legislature knew that these types of decisions would be very serious and as such left it to minister to determine.
· “In this case, the Minister is free under the terms of the statute to choose whatever procedures she wishes in making a s. 53(1)(b) decision. As noted above, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. This factor also suggests a degree of deference to the Minister's choice of procedures since Parliament has signaled the difficulty of the decision by leaving to the Minister the choice of how best to make it. At the same time, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like Suresh, who if deported may face torture and violations of human rights in which Canada can neither constitutionally, nor under its international treaty obligations, be complicit”.
-Suresh had to make a prima facie case that he would face torture if deported which Suresh did and then the Minister has to provide him with the case to be met and opportunity to make submissions against them before order is given.
-In this case, no procedures were required by the Act, and the following is what must be given to a person facing deportation under s. 53(1)(b) in the similar circumstance:
· Individual must be informed of the case to be met.
· Individual must be given opportunity to respond to the case presented by Minister and challenge the information of the Minister where issues of validity arise by presenting facts.
· Minister must provide written reasons for their decision that must find that there are no substantial grounds to believe that the individual who is subject to s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment.
-These procedural protections may not be the ones required in every s. 53(1) challenge as the content of procedural protections vary depending on the facts of the situation.
Ahani v. Canada (Minister of Citizenship and Immigration) (2002) SCC
PRINCIPLE: informing one of the case and giving an opportunity to respond satisfied the procedural fairness of a deportation case where torture was not proven.
Facts: Ahani gained refugee status in 1991, and shortly after this it was discovered that Ahani was a trained assassin for Iranian Minister of Intelligence and Security. Following this was the fear that Ahani was a danger to other Canadians lives. The minister issued a s.41(1) security certificate alleging Ahani was a member of an inadmissible class.
Held: Ahani could not make out a prima facie case that he would face torture upon deportation. Ahani was informed of what he had to do in terms of making out a case and making written submissions and was even provided with the case that he had to meet. Ahani faced minimal danger of torture and he had been fully informed of the case and had the opportunity to respond and as such, the content of procedural fairness was not violated
These two cases confirm that belief that the common law analysis of what is the content of the procedural fairness underpins the constitutional analysis.
GENERAL STATUTES ABOUT PROCEDURES RELEVANT STATUTES:
-Statutory Powers Procedure Act (Ontario)(SPPA)(p.279)
-In each statute that establishes a tribunal, it is necessary to include what fairness individuals are entitled to.
-A criticism of this practice is that all statutes carry the same provisions.
-Therefore in 1971 the legislature enacted the SPPA which sets out a minimum procedural code that brings consistency across administrative proceedings.
-It dictates what a hearing should look like if you are going to have a trial.
-The act was created as a response to the McRuer commission which rejected leaving development of the law to the courts in this area because “that development will not be systematic, and it will inevitably be a slow process attended by much uncertainty”.
-The main problem with the SPPA is that it was enacted prior to Nicholson which means that it is premised on assumptions of common law that are no longer accurate such as the distinction between judicial and administrative proceedings which is no longer a relevant distinction.
-Therefore the SPPA is now in a state where it is difficult to know if it applies or not.
-s. 3 – Application of the act:
-This section gives the application of the act and states that it applies to statutory power of decisions where a tribunal is required by or under the Act or otherwise by law to hold a hearing.
SPECIFIC CONTENT ISSUES
-We have divided our consideration into 2 issues
1. We look at pre-hearing content issues, which include
- issues of notice,
- claims to pre-hearing disclosure or discovery of evidence to be relied on, and
- delay in the processing of administrative proceedings.
2. Involves a study of the nature of the actual hearing itself:
-Should it be oral or written or a mixture of both?
-Are the parties entitled to representation by counsel, an agency, or a friend?
-If there is an oral hearing, is there a right to cross-examine the other witness?
-Then, we approach the issue of evidence in the administrative process where our main concerns will be the types of evidence that a decision-maker may rely on and the extent of the decision-maker’s obligation to reveal that evidence in a variety of situations.
-We will examine confidentiality claims as advanced in a variety of situations.
-Finally, we tease out the detail of the duty to provide reasons, a topic already encountered in our consideration of Baker.
Summary:
a. PRE-HEARING CONTENT ISSUES:
-Notice – what notice must be given to parties that a change is about to take place and how individuals can take part in process
-Discovery – what information will be given to the other side. What information that is before the board or tribunal is going to the applicant, is it the full information or just a summary.
-Delay – in the processing of administrative proceedings.
b. NATURE OF THE ACTUAL HEARING:
-Oral hearings – a right to oral or written hearing or a mixture of both.
-Open hearings – assuming that there is to be an oral hearing.
-The right to counsel – are the parties entitled to representation by counsel, an agent or friend
-Disclosure – info. shown to both parties.
-Official notice – external information which a tribunal feels is relevant.
-Admissibility of evidence – what procedures may and should agencies use for fact finding.
-Cross-examination – If there is an oral hearing, is there a right to cross-examine the other witnesses.
c. POST-HEARING ISSUES:
-Duty to give reasons – is there a right to written or oral reasons.
-Effect of breach of the duty to give reasons – the decision may be set aside.
PRE-HEARING CONTENT ISSUES:
NOTICE
-Two forms of notice are common – written and oral.
-Written is the more usual.
-The SPPA seems to assume the notice it requires will be written or electronic.
-Personal service – that is, notice handed to or told to the party in some personal way – is another norm that the courts will probably require, unless the context permits giving notice in some other way.
-Some agencies, i.e. environmental assessment board – make decisions that affect large and indefinite numbers of persons which usually requires some form of public notice (i.e. advertisements in newspapers, libraries, radio, tv, etc.).
-If no legislative specification is made, presumably the courts will permit notice to be given in some public way – ads in newspapers – although recent Canadian authority is sparse.
-It was held in Re Central Ontario Coalition, that notice must be reasonable, in the sense that it conveys the real intentions of the giver and enables the person to whom it is directed to know what he must meet.
-SPPA – s.6(1); s.24(1); s.7(1)
NOTE:
SPPA
-Notice of hearing - s.6(1) – the parties to a proceeding must be given reasonable notice of the hearing by the tribunal
-Notice, etc. - s.24(1) Where a tribunal is of the opinion that because the parties to any proceeding before it are so numerous or for any reason, it is impracticable,
(a) to give notice of the hearing; or
(b) to send its decision and the material mentioned in section 18,
To all or any parties ... by public advertisement or otherwise as the tribunal may direct.
-Effect of non-attendance at hearing after due notice - s.7(1) ... the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.
NOTE: the following case law are of ‘Public notice’
Re Hardy and Minister of Education (1985) 22 DLR (4th) 394 (BC SC)
PRINCIPLE: if a decision (school closing) affects a large amount of people, notice will be satisfied by letting it be known throughout the general district. Unreasonable to inform everyone individually.
“It would be unreasonable to suggest that every resident in the school district must be personally apprised of the intention to close the school. What is required, it seems to me, is that the proposed closure be made known throughout the district generally so that it can reasonably be expected to come to the attention of interested persons, and that they be accorded sufficient time and opportunity to fairly present their side of the case before a final decision is taken”.
Re Central Ontario Coalition and Ontario Hydro (1984) 10 DLR (4th) 341 (Ont.Div.Ct.)
PRINCIPLE: There must be reasonable notice, based on a reasonable person. Public notice must be clear in relation to its subject matter judged by a reasonable person test.
Facts: Concerned the notice requirements for decisions about the location of electrical transmission lines, particularly large high-voltage lines. The board made an order of notice that included personal service on some municipalities and individuals, and for publication in newspapers. The electrical lines were described simply as being in “southwestern Ontario”, and no maps were included. The board then decided the line should go east. A group of people living/owning properties in this path sought judicial review on the ground that the phrase “southwestern Ontario” did not denote the alternative route.
Held: claimant succeeded.
“... would a reasonable person have understood it, in all the circumstances, notwithstanding its inadequacy?”
Remedy: the effect of the failure to give adequate notice was to set aside the decisions made at the hearing.
Re City of Winnipeg and Torchinsky (1981) 129 DLR (3d) 170 (Man.QB)
PRINCIPLE: a late response of a notice will not be given an exception.
Facts: A new assessment was made of Torchinsky’s property and on April 10, 1981 the assessor mailed her notice, which described the right of appeal and gave May 12 as the date for beginning the hearings. This notice did not arrive until May 12. Torchinsky gave notice within a few days, and the city sought to prohibit the board from hearing the appeal on the ground that her notice of appeal was late.
Held: claim dismissed.
· “The choice of messenger was an unfortunate one ... If the specified date is not subject to extension or variation ... the situation is as if notice has not been given. The purpose of s.183 is to preserve the validity of an assessment affected by technical or procedural error or defect ... it does not affect the right to complain”. ... the 10-day period was directory and not mandatory.
...Contrast Torchinsky this with Re Rymal...
Re Rymal and Niagara Escarpment Commission (1981) 129 (3d) 363 (Ont. CA)
PRINCIPLE: a late response to a notice will be accepted if not enough time was given to respond to the notice.
Facts: The act gave landowners affected by decisions of the commission a right to appeal to the minister of housing. Notices of appeal must be received by the ministry within 14 days of the date of mailing by the commission. Commission mailed out notices of a decision to permit a residence to be built on Sept. 8. Spencer received this notice on Sept.17 and immediately mailed a notice of appeal that did not arrive until Sept. 23 – one day late. The owner who had sought the decision made an application to prohibit the minister from considering the appeal.
Held: owner failed. “The disruption of the mail at this critical time ... are aspects of this case that could properly be taken into account by the Court in refusing to exercise its discretion and grant the judicial relief sought.
· The notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to participate and to prepare.
o Clearly, the length of time needed will depend on the nature of the interests and the issues.
· The notice must also give enough information about the issues to enable the party to prepare to respond.
-Issues about notice are in fact NOT confined to pre-hearing notice, but can also arise in the course of the hearing itself.
-This is more evident than in the case of commissions of inquiry – which are under statutory duty to provide notice and an opportunity to respond to those they are of mind to name adversely in their final report.
-When should that notice be given? and What are the limits on its contents and wording?
-Both issues are raised in the following extract from the judgement of the SCC in the challenge to the authority of Krever Commissions of Inquiry into the operations of the blood system:
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada – Krever Commission) (1997) SCC
PRINCIPLE: procedural fairness is required in an inquiry due to the possible damage to reputation AND there is NO duty to issue the notices immediately, only to give a reasonable time AND the SPPA does NOT apply to inquiries as per s.3.
FACTS: The Krever Commission was set up to look at various peoples roles in the blood scandal. The hearings were governed by rules of procedure and practice that were adopted by all 25 parties to the inquiry. On the final day of the scheduled hearings, the commissioner sent out confidential notices to individual parties and the notices indicated that the commission may raise certain conclusions that would allege misconduct. The letter stated that the recipients had the right to respond as to whether or not the commissioner should make these findings. Several applicants brought application for judicial review that the commissioner was acting outside of the jurisdiction set out in section 13 of the Inquiries Act.
Note: In a public inquiry, purpose is not to make anyone liable to civil liability or criminal liability and further to this, evidence given cannot be used in other proceedings against the parties.
· “Broad inquiries are not focussed on individuals or whether they committed a crime; rather they are concerned with institutions and systems and how to improve them. It follows that in such inquiries there is no need to present individuals taking part in the inquiry with the particulars of a "case to meet" or notice of the charges against them, as there would be in criminal proceedings”.
· Commissioner is walking a fine line because he has to get to the bottom of the issue – find out who is at fault and what happened. BUT on the other side, you can’t go as far as making a conclusion which would make someone subject to civil or criminal liability.
· The Inquiries Act specifically protects participants from civil and criminal prosecution.
o The parties that received the notices alleged they would find harm as a result of the findings – harm to reputation.
ISSUES:
· (i) Did the court exceed jurisdiction by making allegations of misconduct?
· (ii) What procedural protections should be attached to the issuance of these notices?
· (iii) The timing of the release of notices. The appellants submit that because the Commissioner waited until the last day of hearings to issue notices identifying potential findings of misconduct which might be made against them, their ability to cross-examine witnesses effectively and present evidence was compromised.
HELD: The commissioner did not exceed his jurisdiction as the principles of procedural fairness were followed in the issuing of notices. Even though there will be no criminal or civil liability, the principles of procedural fairness apply because the possible damage to reputation is significant. But, the DofF was not breached by issuing the notices. The amount of time given to respond to the notice was enough time.
(i) The commissioner did not exceed his jurisdiction as the principles of procedural fairness were followed in the issuing of notices.
(ii) “In fairness the witnesses or parties who may be the subject of findings of conduct, the notices should be as detailed as possible”. Procedural protections that should be attached to the issuance of these notices:
-So, the notices were issued in confidence to the parties receiving them – confidentially.
· The parties are given a chance to respond before a public finding against the parties was made.
o Therefore the only way that the notices could have an adverse effect was if the parties themselves made the notices public.
· As well as giving the parties a chance to respond, the rules of practice and procedure gave the parties the right to cross-examine and call their own witnesses.
· Furthermore, the commissioner did not exceed jurisdiction because his findings did not have anything to do with criminal or civil liability.
(iii) There is no statutory requirement that the commissioner give notice as soon as he or she foresees the possibility of an allegation of misconduct.
· It cannot be said that the timing of the delivery of the notices amounted to a violation of procedural fairness. The time given was adequate.
· “Although the notices should be given as soon as it is feasible, it is unreasonable to insist that the notice of misconduct must always be given early. There will be some inquiries, such as this one, where the Commissioner cannot know what the findings may be until the end or very late in the process. So long as adequate time is given to the recipients of the notices to allow them to call the evidence and make the submissions they deem necessary, the late delivery of notices will not constitute unfair procedure”.
· “The timing of notices will always depend upon the circumstances. Where the evidence is extensive and complex, it may be impossible to give the notices before the end of the hearings. In other situations, where the issue is more straightforward, it may be possible to give notice of potential findings of misconduct early in the process. In this case, where there was an enormous amount of information gathered over the course of the hearings, it was within the discretion of the Commissioner to issue notices when he did”.
o In this case, the evidence was extensive and complex and it was impossible to give earlier notice and furthermore, the recipients were given the chance to make further arguments.
· Conduct of inquiry as a whole has to go along with purpose of improving institutions – at the end they can look toward fairness.
-Question:
Why couldn’t the parties have relied on section 8 of the SPPA which discusses ‘Where character, etc., of a party is in issue’ – reputation?
· First = because this is an inquiry and s.8 SPPA does not apply as per s.3(1) (“... this Act applies to a proceeding by a tribunal in the exercise of a statutory power ...”). Only applies to tribunals (and provincial boards).
· Second = the SPPA only applies to provincial statutes and the inquiry is set up under federal statute.
· Thirdly = s.3(2)(f) specifically excludes the application of the SPPA to the Public Inquiries Act.
DISCOVERY
-Big case on discovery in criminal law (facts are not important) is Stinchcombe
-SPPA – s.8; s.12(1)
Stinchcombe (1991) 3 SCR 326 (Alta.)
PRINCIPLE: Stinchcombe is important because it emphasized the required degree of disclosure; one must know the case one must meet. Disclosure must not be perfunctory (indifference, showing little interest); it must be complete, subject only to privilege or relevance.
Canadian Pacific Airlines Ltd. v Canadian Air Line Pilots Association (1993) 3 SCR 724
PRINCIPLE: Tribunals have the power to order discovery only in situations where such a power is rooted firmly in the empowering statute. It is not likely that a presumption of this power will be drawn in the absence of express authority to make such orders.
NOTE:
SPPA: Discovery related provisions:
-Where character, etc. of a party is in issue - s.8: Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.
-Summonses - s.12:(1) A tribunal may require any person, including a party, by summons,
(a) to give evidence on oath or affirmation at an oral or electronic hearing; and
(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceeding and admissible at a hearing.
-In the judgement that follows, the court apparently found such an authority in the provisions of Ontario’s SPPA:
Ontario (Human Rights Commission) v. Ontario (Board of Inquiry
into Northwestern General Hospital)
PRINCIPLE: if a serious allegation is made (i.e. affecting reputation), a board of inquiry (pre-trial) could order full disclosure as per s.12 SPPA. “Justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address the issue on the basis of complete information of the case to be met”.
Facts: A board of inquiry was set up under the Ontario Human Rights Code to hear a complaint of racial discrimination made by ten nurses employed by the hospital. The respondent’s, NGH, prior to the hearing, requested disclosure of statements made in the course of the Commission’s investigation. The Commission said the comments were privileged because they were prepared for litigation purposes. The Board disagreed. It said the investigation documents are NOT documents made in preparation for litigation. The board ordered disclosure:
“I order the Commission to provide the Respondents all statements made by the Complainants to the Commission and its investigators at the investigation stage, whether reduced to writing or copied by mechanical means. I further order the Commission to provide the Respondents with the statement and identity of any witness interviewed by the Commission or its agents who the Commission does not propose to call and whose statements might reasonably aid the Respondents in answering the Commission's case”.
The Commission applied for judicial review of this order of disclosure.
Held: Full disclosure was ordered. Common law does in certain situations impose pre-hearing discovery obligations on tribunals. In this context, the serious ramifications (reputation) of a finding of discrimination cause the court to express the view that justice will be better served ‘where there is complete information available to the respondents’.
· Section 12 of the SPPAclearly recognizes the authority of a board of inquiry to order the production of all the documents which are the subject of the order in this case, subject to claims of privilege.
o The exception to disclosure is privileged documents – Court said that documents are NOT privileged, there was no evidentiary basis to support a claim of privilege on the basis of “an expectation of confidentiality”.
o The allegations of racial discrimination are major and can be harmful to those it is made against – when you make these allegations you can’t expect to be shielded.
o Full disclosure is ordered.
-Stinchcombe – “Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. ... in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met”
-Appling Stinchcombe to this case:
· The important principle enunciated by Sopinka J. is that ‘justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address the issue on the basis of complete information of the case to be met”.
· It does not take a quantum leap to come to the conclusion that in the appropriate case, justice will be better served in proceedings under the Human Rights Code when there is complete information available to respondents.”
-Stichcombe recognized that the “fruits of the investigation” in the passions of the Crown “are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice be done.”
-We are of the opinion that this point applies with equal force to the proceedings before a board of inquiry and that the fruits of the investigation are not the property of the commission.
CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board (1994) FC CA
PRINCIPLE: the obligations concerning disclosure imposed by the doctrine of fairness in administrative matters (opposed to matters affecting reputation as in NGH) are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the documents that will be relied on.
Facts: Hearing held as to whether or not a drug was being sold at an excessive price and in the course of the hearing, the drug company asks for disclosure of all of the documents in the Board’s possession. The Board denies but offers to give them the content of the documents and the case that the appellants have to meet.
Held:
The Board is set up in the statutory context as a board or tribunal and “there is no point in the legislature creating a regulatory tribunal if the tribunal is treated as a criminal court. The obligations concerning disclosure imposed by the doctrine of fairness and natural justice are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the documents that will be relied on”.
· to require a Board to disclose all possibly relevant information gathered while fulfilling its regulatory obligations would unduly impede its work from an administrative viewpoint.
· distinguished from Northwestern General Hospital (NGH) à the administrative tribunal here has economic regulatory functions and has no power to affect human rights in a way akin to criminal proceedings (thus, do not need to disclose everything possible).
o “There are admittedly extremely serious economic consequences for an unsuccessful patentee at a s.83 hearing, and a possible effect on a corporation’s reputation in the market place. But as McKeown J found, the administrative tribunal here has economic regulatory functions and has no power to affect human rights in a way akin to criminal proceedings.
o This decision backs away a bit from NGH and says that in administrative matters the court cannot be held to the same standard for discovery as in criminal matters as there is less at stake and economic/efficiency considerations.
· We are all agreed with McKeown (trial judge) that “law and policy require that some leeway be given an administrative tribunal with economic regulatory functions, if, in pursuing its mandate, the tribunal is required by necessity to receive confidential information. It is not intended that proceedings before these tribunals be as adversarial as proceedings before a court….”.
DELAY
-In recent years, the notion that undue delay in the conduct of administrative proceedings could amount to a breach of the rules of natural justice or procedural fairness achieved a measure of acceptance.
-Consider the following case involving delay prejudicing the presentation of a response.
-Consider also the extent to which the court should take into account the decision- maker’s institutional limitations or resources in cases like this.
Kodellas v Saskatchewan (Human Rights Commission) (1989) 60 DLR (4th) 143 (Sask.CA)
PRINCIPLE: Established 3 factors to determine an “unreasonable delay” in the context of s.7 of the Charter.
(1) If it is prima facie unreasonable
(2) The reason or responsibility for the delay, conduct of the parties (what the reason for the delay?)
(3) What is the prejudice or impairment caused by the delay?
THE ACTUAL HEARING:
ORAL HEARINGS
-What is an oral hearing and when should it be provided?
-Generally means a ‘face to face encounter with actual Decision maker. As opposed to a hearing that occurs in writing or which is based on interviews done by an investigator.
o Phrase “oral hearing” can have different meanings; audi alteram partem rule: right to be heard but rule does not imply that there must always be a hearing.
o Traditionally, oral hearings considered requirement of natural justice. But, in Komo Construction Inc. (1968) – “Turning now to the audi alteram partem rule, it is important to note that the rule does not imply that there must always be a hearing”.
-As doctrine of procedural fairness has expanded, courts have relaxed requirement for oral hearings.
-In Nicholson (first case on fairness), Laskin CJ said that although police constable was entitled to fairness, it was up to police board as to whether they wanted to proceed by oral or written hearing.
-Evolving sense of adequate form of hearing in amended SPPA – explicitly recognizes possibility of ‘written or electronic’ hearings.
-Knight (director of education fired by board), court took flexible approach to procedural fairness – all meetings between him (w/ lawyer) and board allowed him to get enough info about situation, these casual meetings and negotiations allowed him to learn case against him and have a chance to respond.
-In Charter cases, courts are showing flexibility as well.
-Singh: The absence of an oral hearing need not be inconsistent with fundamental justice in every case….But “In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.”
-Hundal - section 7 of the Charter does not always require an oral hearing - there is a variable standard that depends on the context.
-In Hundal, where individual has an opportunity to have a hearing before or after decision and there are no issues of credibility, an oral hearing is not required by principles of fundamental justice.
-Thus, the arguments are made that it is preferable to gather evidence in certain kinds of cases by inquisitorial methods and to neither allow other to be present nor expose those interviewed to cross-examination.
-Of course, the issues at stake are more than simply those normally associated with debates over oral as opposed to written hearings. In addition, they also involve questions about open hearings, cross-examination rights, and access to and the opportunity to meet adverse evidence.
-While the difficulties are not confronted as directly as they might have been, the following judgement provides an example of where a sexual harassment complaint was dealt with by methods of inquiry other than a regular hearing:
Masters v. Ontario (1994) Ont. Div. Ct.
PRINCIPLE: employment relationship (based on Minister’s discretion) will be a determining factor when deciding DOF even when one’s credibility/reputation is at issue AND investigations require less fairness than trial AND SPPA does NOT apply to investigations under Minister’s discretion (not a tribunal).
Facts: Masters had been appointed by the premier in exercising his prerogative powers as Ontario agent General in N.Y. Complaints of sexual harassment were made against him by 7 women. The premier ordered an external investigation which produced a report confirming P had harassed 7 women. Masters responded to those allegations several times. The premier took all positions into account and decided to remove Masters from the position. Masters applied for judicial review of the investigator’s report alleging various breaches of natural justice in the conduct of the investigation; witnesses had been interviewed by the investigators without Masters or his counsel being present; he had been refused access to the list of questions that were asked, the copies of any notes, transcripts or tapes made during the interviews; and that while Masters was allowed to interview the witnesses himself, few agreed to meet with him.
Issue: Masters contends that where credibility will determine the main issue before a government decision maker, the general duty of fairness and the rules of natural justice require that an impartial decision maker determine credibility by way of a full trial-type hearing permitting witnesses to be subjected to cross-examination.
Held: the duty to act fairly was met without recourse to an oral hearing. Credibility is an issue, but no oral hearing is required.
“I find that Masters was aware of all the material allegations against him and was provided with an adequate opportunity to be heard. The investigation was neither unfair nor biased by reason of any of the grounds alleged. The requirements of the duty to act fairly in the scope of the employer-employee relationship in the case at bar were met”.
Nature of employer-employee relationship:
· Masters understood that his continued employment was at the discretion of the Premier and was specifically subject to the continuing confidence of the Premier.
o The “at pleasure” doctrine recognizes the discretionary nature of the appointment.
o The nature, thus, requires pure ministerial discretion.
· Since Masters held the employment at the discretion of the Premier, the Premier was not acting pursuant to a statute but rather was exercising a prerogative to consider revoking one of his earlier appointments.
o Masters’ position was more politically accountable and more senior that those positions in Nicholson and Knight.
o These features of the decision places Masters more towards the discretionary or legislative end of the spectrum referred to in Martineau.
Investigation, not a trial:
· The investigation followed standard procedures and the process was only investigatory therefore the duty of fairness did not require Masters to have direct access to the witnesses à therefore duty of fairness was met.
o The Premier was NOT conducting a trial.
· “Clearly, an adversary trial is much more likely to produce ‘truth’ and the perception of ‘fairness’ than a mere investigation. ... In comparison to a trial, therefore, there is a much greater margin for error in the ‘findings’ of any investigation”.
· He also was given a meaningful opportunity to respond to allegations against him.
SPPA 1990:
· The SPPA was not relevant and had no application because it was a decision that was within the Premier’s discretion and not about statutory decision making.
Remedies à b/c his withdrawal was a prerogative power injunction and declaration were not open to him, only the prerogative writs.
Comments àCase is significant because of the particular nature of the decision-making. Also, it was key that the decision was investigative.
-The final case in this section provides an illustration of how claims to an oral hearing (procedural claims generally) are affected by the way the courts characterize the issue before the decision-maker and the nature of the interests that is at stake.
Khan v. University of Ottawa (197) Ont. CA
PRINCIPLE: credibility and severe impact of decision requires an oral hearing.
Facts: The appellant was a student at law school and for a final exam, claims to have written in 4 booklets, however, only the first three were found and marked by professor. Miss Khan received a failing grade. She First appealed to the Faculty of Law Examinations Committee; then to the Senate Committee; then sought judicial review under SPPA; appealed Div Crt decision to CA. According to the Faculty of Law Regs., a student is entitled to have a grade reviewed “where it appears that the grade assigned to a student’s work may be the result of a significant error or injustice.” Committee decides she made up 4th booklet story, but never gives her an open hearing.
Issue:to what extent do credibility issues within a case warrant an oral hearing?
Held: oral hearing was required due to credibility and importance of issue (she was only allowed to make written submissions). The Committee disbelieved Ms. Khan's explanation for the fourth booklet without hearing from her. This amounted to a denial of procedural fairness, which by itself fatally flawed the proceedings before the Committee.
Importance of issue affecting student:
· “In my view, a university student threatened with the loss of an academic year by a failing grade is also entitled to a high standard of justice. The effect of a failed year may be very serious for a university student. It will certainly delay if not end the career for which the student was studying. ...”.
Credibility:
· Ms. Khan’s credibility was the central issue before the Committee. How else could she have demonstrated that she handed in a fourth booklet except by pledging her word that she did?
· “In my opinion procedural fairness before the Examinations Committee in this case required the following: first, and most important, the Committee should have given Ms. Khan an oral hearing because her credibility was a critical issue on her appeal”.
· “In many academic appeals, procedural fairness will not demand an oral hearing. An opportunity to make a written submission may suffice. For example, I doubt that students appealing their grades because they believe they should have received a higher mark would ordinarily be entitled to an oral hearing. What distinguishes this case is that the determining issue before the Examinations Committee was Ms. Khan's credibility. In denying Ms. Khan relief the Committee judged her credibility adversely.
-Ms. Khan need not show actual prejudice to prove that she has been denied procedural fairness. She need only show that the Committee’s breach of its duty of fairness may reasonably have prejudiced her, Kane, she has met that burden.
Dissent: this was not a matter which turned on credibility. There were no allegations made against the appellant and the proceedings were not adversarial in nature. The appellant had not been charged with cheating on an examination or with any other disreputable conduct as a member of the student body. The consequence to her was not expulsion from the faculty or even loss of a full academic year of study.
-Komo Construction Inc. – an oral hearing is not required to satisfy the demands of natural justice.
-Singh– the Supreme Court's conclusion that an oral hearing to determine issues of credibility was required was inextricably linked to the serious nature of the rights at stake.
Here, Charter rights are not in issue. The appellant, at most, will be required to prolong the completion of her education by one semester, until she has satisfied the requirements for graduation.
-Kane- A decision affecting the right to continue in one’s profession or employment may demand a higher standard of justice, however, that is not the case here.
OPEN HEARINGS
-Interests at stake:
(1) Privacy of victims, complainants; prejudice to individual’s reputation.
(2) Public interest in access to the hearing and Charter s. 2(b) rights (freedom of expression, of the press).
(3) Potential harm to the individual (threats to security), national security, or commercial competitiveness.
-SPPA – s.9(1)
-Charter – s.2(b)
NOTE:
-SPPA (Open hearings are default) – s. 9(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public.
-s.2(b), Charter – allows freedom of the press to include the ability to review decision-making processes in the quasi-judicial sphere (Pacific Press).
THE RIGHT TO COUNSEL
-Arguments in favour of a having counsel:
· They have specialized knowledge to deal with complicated legal issues.
· Assures a level of preparedness; Protects the client from the greater resources of the state.
-Arguments against counsel in administrative setting:
· Greater cost; delay.
· Makes it more adversarial/Complicates the issues and proceedings.
-SPPA – s.10; s.11(1)
NOTE:
SPPA - Right to counsel - s. 10 A party to a proceeding may be represented by counsel or agent
SPPA - Rights of witnesses to counsel - s. 11(1) A witness at an oral or electronic hearing is entitled to be advised by counsel or an agent as to his or her rights but such counsel or agent may take no other part in the hearing without leave of the tribunal.
-A statute excluding the right to counsel is NOT final on the matter:
Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board, Amalgamated Clothing and Textile Worke’s Union (1979)
PRINCIPLE: If statute prevents right to counsel, must still consider the vital importance and the complexity in fact and law which may require legal counsel.
Facts: Dispute in men’s clothing industry resolved by arbitration, process conducted for decades without lawyers. After this particular grievance, association made a general statement that it wished to change this practice and use lawyers for some disputes. Arbitrator rules that no absolute right to counsel, discretionary; should not be used to allow counsel in this case.
Issues: (1) Right to counsel absolute or discretionary? (2) If discretionary should it be allowed here?
Held: right of counsel granted.
1. There was no right to counsel in statute in this instance: Court looks at the collective agreement and agrees with the arbitrator that there’s no right to counsel; no absolute right to counsel but still have to look to the demands of procedural fairness.
· s.10 SPPA 1971 – provides that a party to “proceedings” may be represented at a hearing by counsel or an agent. However, the relevant part of the statute does not apply to “proceedings”. Thus, the draftsmen could not have intended the SPPA to apply.
2. Court looks to the complexity of the issues and competency of those involved.
“In view of the vital importance of the controversy to the applicant company, and the apparent complexity of the matter both in fact and in law, natural justice, in my view, requires that the applicants be represented by legal counsel at the arbitration hearing without any limitation, even if the applicants had no absolute right thereto.”
-Where the instrument doesn’t give a right to counsel, tribunals MUST consider:
(1) Nature of the issues (not easy for a layperson to understand?);
(2) Consequences of the decision;
(3) Ability of the particular parties before them to make out a case.
Re Parrish (1993) 2 FC 60 (TD)
PRINCIPLE: lists situations where right to counsel is required (below).
Facts: The captain of a ship that had been involved in a collision with another ship was summoned to appear before an investigator appointed by the board. He appeared with two counsel, but he was refused to allow counsel at the hearing.
Issue: could the captain be required to attend and give evidence under oath without his counsel.
Held: procedural fairness requires him to be permitted to be accompanied by counsel at the inquiry. Expediency is not a relevant rebuttal here.
-The duty to act fairly implies the presence of counsel when some or all are found in the enabling legislation or implied from the practical application of the statute governing the tribunal:
àWhere an individual or a witness is subpoenaed, required to attend and testify under oath with a threat of penalty;
àWhere absolute privacy is not assured and the attendance of others is not prohibited;
àWhere reports are made public;
àWhere an individual can be deprived of his rights of his livelihood;
àOr where some other irreparable harm can ensue.
(Non-exhaustive list.)
Board’s argument à The presence of counsel would cause unwarranted delay and perhaps frustrate the immediate gathering of facts.
Court’s response à I cannot accept the Board’s argument that the need for administrative expediency in the proceedings outweighs the necessity for the protection of a witness through the presence of counsel.
Dehghani v Canada (Minister of Employment and Immigration) (1993) 1 SCR 1053 (Can.)
PRINCIPLE: NO counsel is necessary at a point of entry interview since it would constitute unnecessary duplication.
Facts: At stake here was the procedure employed at ports of entry to Canada when the initial immigration officer has concerns about the admissibility of a person. In such cases, the person seeking entry was referred to a secondary examination at which there was no entitlement to representation by counsel.
Held: To allow counsel at port of entry interviews would, ‘entail another “mini-inquiry” or “initial inquiry” possibly just as complex and prolonged as the inquiry provided for under the Act and Regulations. This would constitute unnecessary duplication. The purpose of the port of entry interview was, as I have already observed, to aid in the processing of the appellant's application for entry and to determine the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. The principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering”.
-In my opinion, all these matter which a board should take into account in deciding whether to allow legal representation, or the assistance of a friend or adviser, bearing in mind the overriding obligation to ensure that a prisoner “be given a full opportunity of hearing what is alleged against him and of presenting his own case”
Howard v. Stony Mountain Institution (1985) 19 DLR (4th) 502 FAC
PRINCIPLE: greater loss of liberty and complexity of issues = need for counsel.
Facts: Inmate in prison, earned right of early release then charged with assaulting guard and possessing contraband. Disciplinary hearing for charges held.P retained counsel but denied right to have counsel appear during hearing.Asked Federal Court to intervene and stop hearing.
Issue:whether Howard had an undeniable right to counsel and, whether s.7 of the Charter guaranteed him that right.
Held:counsel is required because of the severity of the consequences (loss of liberty) and the complex legal issues (the vague charge).
Relevant factors to consider when deciding if counsel applies:
“I am of the opinion that the enactment of s.7 has not created any absolute right to counsel in all such proceedings. ... whether or not the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence”.
Impact/gravity/severity of decision on individual:
-The appellant’s 267 days of earned remission was in jeopardy – loss of liberty. “In my view, that alone suggests his need to counsel”.
Capacity to understand/represent himself:
-One of the three charges is an act calculated to prejudice discipline and good order, a notoriously vague and difficult charge for anyone to defend. This feature suggests the need for counsel.
Also, recognition that even those facing min charges are allowed counsel in courts, so it would be incongruous to not allow counsel here to someone who is facing a loss of liberty
-The following case raises the issue whether s.7 and/or s.15 of Charter will ever create an entitlement to state-provided counsel.
New Brunswick (Minister of Health and Community Services) v. G.(J.) (1999) 3 SCR 46 (NB)
PRINCIPLE: requirement for counsel is based on (1) the seriousness of the interest at stake, (2) the complexity of the proceedings, and (3) the capacities of the appellant.
Facts: At stake was whether s.7 of the Charter required that a mother be provided with counsel (counsel provided by the state) for the purposes of resisting an application by the Child Welfare authorities for renewal of an order placing her three children in the custody of the state. A policy under the Legal Aid plan prohibited the granting of legal aid certificates in custody-order renewal proceedings.
Held: a fair hearing required that she be represented by counsel based on (1) the seriousness of the interest at stake, (2) the complexity of the proceedings, and (3) the capacities of the appellant. Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests and thereby threatening to violate both the appellant’s and her children’s s.7 right to security of the person.
(1) seriousness of the interest at stake:
The state was seeking to extend a previous custody order by six months. A six-month separation of a parent from three young children is a significant period of time.
(2) complexity of the proceedings:
Child custody proceedings are effectively adversarial proceedings which occur in a court of law. The parties are responsible for planning and presenting their cases. The parent must adduce evidence, cross-examine witnesses ... under significant emotional strain.
(3) capacities of the appellant:
In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education ... and familiarity with the legal system in order to effectively present his or her case.
Limit on right to counsel in child custody cases:
“I would like to make it clear that the right to a fair hearing will not always require an individual to be represented by counsel when a decision is made affecting that individual's right to life, liberty, or security of the person. In particular, a parent need not always be represented by counsel in order to ensure a fair custody hearing. The seriousness and complexity of a hearing and the capacities of the parent will vary from case to case. Whether it is necessary for the parent to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent”.
Was the violation of s.7 justified under s.1?
“... the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings”.
· s.1 is does NOT save the violation based on budgetary savings.
Re B.C. Motor Vehicle Act – “Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like”.
· This is so for two reasons:
-First, the rights protected by s. 7 -- life, liberty, and security of the person -- are very significant and cannot ordinarily be overridden by competing social interests. -Second, rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society.
Summary of a Right to Council:
- Almost guaranteed in prison and custody contexts but not necessarily where any s.7 right can be made out.
- But, as in non-Charter contexts, dependent upon analysis of the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the appellant.
- Note how these factors relate to/vary from the Baker 5: nature of decision and process; nature of statutory scheme and process; importance of decision to the individual; presence of legitimage expectations; choice of procedures by agency.
- Don’t lose track of overall issue – is right to counsel necessary for fair hearing?
DISCLOSURE AND OFFICIAL NOTICE:
-The general principle is: a party is entitled to know what evidence and representations have been given and is entitled to an adequate opportunity to respond.
-Disclosure is the disclosure to parties of information that the agency has about the decision to be made.
-It is a basic element of common law of natural justice and is usually required unless some competing interest prevails.
-The justification for the requirement is simply to enable a party to know and respond to information that the agency has and that may influence its decision.
-SPPA - s.5.4(1):
Access to Information Statutes:
-Many jurisdictions in Canada now have “freedom of information” and privacy laws.
-However, what should be realized is that just because information is exempted from disclosure under freedom of information legislation, does not necessarily mean that its disclosure will also be denied in proceedings to which the rules of natural justice or procedural fairness apply.
-Thus, under the federal freedom of information legislation, it is provided that the Act is without prejudice to other laws governing access to information.
Crown or Executive Privilege:
-At the federal level in Canada, the common law of Crown or executive privilege has been codified in provisions in the Canadian Evidence Act, 1985, C-5, ss.37-39.
-As opposed to the situation with the Access to Information Act, these privileges are applicable to proceedings before administrative agencies.
Canada Evidence Act
-A minister of the Crown or a person with executive privilege has certain rights with respect to disclosure and under the Canada Evidence Act they can “certify to the court, the person or body that the information should not be disclosed on the grounds of a specified public interest” (section 37(1)). Section 39 takes this one step further (page 362)
In favour of disclosure:
· access to as much of the case against as is possible is better for promotion of fairness, improves participation of the individual affected in decision-making (all of our cases).
· disclosure promotes transparency and accountability – promotes caution on part of experts or informants making statements (Ontario (Human Rights Commission), Napoli).
Against disclosure:
· concerns for ability to collect evidence – ability for informants or experts to be frank
(Re Napoli, Gallant, Gough).
· concerns for harm done by release of evidence – national security concerns (Suresh), or potential harm to informants (Chiarelli,Gallant, Gough); harm to individual that is subject of the admin process (e.g. Abel), including harm to reputation, harm to commercial advantage.
NOTE:
SPPA - Disclosure - s.5.4(1): If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,
(a) the exchange of documents;
(b) the oral or written examination of a party;
(c) the exchange of witness statements and reports of expert witnesses;
(d) the provision of particulars;
(e) any other form of disclosure.
Kane v Board of Governors of the University of British Columbia (1980) 1 SCR 1105 (BC)
PRINCIPLE: CANNOT deliberate without giving other party opportunity to respond. AND court is NOT concerned with proof of actual prejudice, but the possibility in the eyes of reasonable people AND a high standard of employment is required when ones’ profession is at risk.
Facts: Kane was a professor at UBC and was suspended by the president for improper use of computer facilities. He appealed to the board of governors, of which the president was a member. The board held a hearing, attended by Kane, his counsel and the president. After the hearing, the board had dinner and met, without Kane, to discuss the case. According to the findings of the Chambers judge, “Dr. Kenny did not participate in the discussions. Nor did he vote upon the resolution. He did, however, answer questions directed to him by Board members”. Kane sought JR.
Held: The Board was under an obligation to postpone further consideration of the matter until such time as K might be present and hear the additional facts adduced; at the very least the Board should have made K aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made. In the event, the Board followed neither course. The Board heard the further facts, deliberated, and ruled against K. In doing so, it made a fundamental error. The danger against which the Courts must be on guard is the possibility that further information could have been put before the Board for its consideration which affected the disposition of the appeal.
Disclosure:
· “It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellant authority must not hold private interviews with witnesses or hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such party must, in the words of Lord Denning in Kanda v. Government of the Federation of Malaya (1962) "... know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. ... Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other."
Pfizer Company Ltd. – It is clearly contrary to those rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.
‘judge in his own cause’/bias/prejudice:
· “The main thrust of the case advanced on behalf of Dr. Kane was that no man could be a judge in his own cause, and although no actual bias on the part of the President was alleged, his presence during the deliberations of the Board violated the principles of natural justice”.
· “We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons”.
Severity of decision:
· “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”.
Re Napoli and Workers’ Compensation Board (1981) BC CA
PRINCIPLE: another example of court saying that accused persons have the right to know the case against them so they respond adequately. Balances competing interests and still comes to this conclusion AND rejects argument that doctors will be less frank in their reports.
Facts: WCB BC was willing to provide P (injured worker) summaries of report but not actual report. Summaries suggested (w/out attribution of names) Napoli was faking injury and was a timewaster. Without access to actual reports and their authors, there was no way that P could effectively counter the claims against her. Doctors argued that disclosure would cause doctors to sanitize the reports, they would be less frank if they knew they would have to disclose.
Held: the rules of natural justice apply to the hearings and therefore the file contents must be disclosed. Without access to reports and authors of the reports, Napoli could not effectively counter the claims against him.
· Rammell v WBC (1961) – “If the claimant is not told the precise statement made against him, and when, where and by whom made, how can he effectively answer it?”
· In these circumstances, “a high standard of justice” is required (Kane), particularly since Napoli’s future will be largely shaped by the decision of the final domestic tribunal.
-Board’s/Doctor’s argument: concern about the loss of accuracy and frankness that would be likely to result. ... a doctor may feel under considerable restraints if he felt that anything said might be disclosed to the claimant, his employer or his union. The likely result could be reports that are vague and unreliable to the point of being worthless”
-Court’s response: rejected these arguments. This reasoning glosses over the valid contrary view that persons preparing reports which they know will be amenable to scrutiny will prepare them with greater care and diligence, and more important, that fairness requires that the original reports be disclosed in order that the claimant can effectively answer the case against him.
NOTE: The difficult issue of informants in a penitentiary setting is covered in the 2 cases that follow. These cases raise again the issue of the impact of the Charter on traditional common law justifications for withholding information:
Charkaoui v Canada (Citizenship and Immigration) [2008] (Charkaoui II)
Facts: The respondent ministers signed a security certificate against C under s. 77(1) of the Immigration and Refugee Protection Act. C was then arrested and detained. Before the scheduled date of the fourth review of C’s detention, counsel for the ministers informed the judge at an in camera hearing that they had recently taken cognizance of a document that should have been disclosed to C at the outset of the proceedings but had not been disclosed because of an oversight. The document consisted of a summary of two interviews C had had with CSIS officers. The judge ordered that the summary be disclosed to C’s counsel forthwith. At this same hearing, counsel for the ministers filed fresh allegations about C that were based on information that was not in his file when the ministers signed the security certificate. The next day, the judge disclosed a summary of this new information to C. The detention review hearing was adjourned and C was granted a postponement. C then filed a motion to exclude the new evidence. He also requested that the complete notes of the two interviews conducted by CSIS be disclosed to him together with the recordings of the interviews. But the ministers informed the judge that there were no recordings in the file and that notes of interviews are, in accordance with an internal policy of CSIS, systematically destroyed once the officers have completed their reports. Alleging that his right to procedural fairness had been violated, C filed a motion for a stay of proceedings, in which he asked that the certificate be quashed and that he be released. In the alternative, he asked that the new evidence be excluded. The Federal Court and the Federal Court of Appeal dismissed the applications.
HELD: The appeal should be allowed in part and the application for a stay of proceedings should be dismissed.
The court determined that, by adjourning the detention review to allow Mr. C time to prepare his testimony and defence, the designated judge had averted any prejudice that might have resulted from the delay in disclosing the interview summaries, particularly given the fact that Mr. C had himself participated in the interviews and doubtless knew what he had said on these occasions. It refused to order a stay of proceedings, holding that the designated judge, if he ultimately upheld the certificate’s reasonableness, would be in a position to determine whether the destruction of the interview notes had a prejudicial effect on Mr. C, and the appropriate remedy.
-The SCC decision in Charkaoui II was essentially an interim decision in which the court set out the scope of the ministers’ disclosure obligations in security certificate proceedings.
-Accordingly, there was no s.7 breach and the court was not called on to determine whether a failure to disclose, in breach of s.7, was justified under s.1.
-Each of the next 2 cases DO consider the issue of s.1 justification.
Individual’s right to know vs. informer’s Right to Protection:
Gallant v Canada (Deputy Commissioner, Correctional Service Canada) (1989) 36 Admin.
PRINCIPLE: not disclosing enough info IS a violation of s.7 in prison setting since result would be loss of liberty. However, it is saved by s.1 because of the wide discretion Parliament gave to the Commissioner in the Penitentiary Act.
Facts: Prisoner at a max security institution suspected of involvement in extortion and the import of drugs into the prison. As a result, Gallant was to be transferred to a more restrictive maximum-security facility. Authorities provided him with some details of alleged offences, but refused to reveal the names of the six informants, because of fear of reprisals. Gallant applied and was granted certiorari on the ground that the notice given was insufficient to satisfy the requirements of procedural fairness.
Issue:Does Gallant have a right to know accusers and address their accusations directly? Does s. 7 guarantee him this right?
Held: should have disclosed more info. to prisoner due to effect on liberty, however, the provision was saved by s.1.
-Three different judgments, 2 agree that he didn’t have a right to know accusers, 1 dissent.
Pratte (Majority) – this was a breach of s.7 of the Charter, since more restrictions in the new prison, it amounted to a deprivation of liberty, and this would not be in accordance with the principles of fundamental justice. Gallant had not been given a real opportunity to answer the allegations against him because he did not know the names of the informants. BUT, the decision was saved by s.1 because of the exigencies of penitentiary discipline; needed to confer wide discretion on penitentiary authorities. Cannot expect perfect procedural fairness in prison environment.
Marceau (Majority) – did not deal with Charter issue. Because this is a prison case, he imposed a lower standard for meeting the requirements for natural justice, given the nature of the decision, procedural demands would not be as high as they might otherwise be. Standards for natural justice lower in prisons. All that is needed is sufficient grounds to justify the transfer and ‘meaningful participation’.
Desjardins (Dissent) – Problem here is that the authorities failed to justify the reliability of the information they were using: “[T]he burden is on these authorities, when a disciplinary measure is taken, to demonstrate that the circumstances are such that they cannot inform the respondent of the facts on which the charge is based. This burden is not a light one since the protection of the law and of the Constitution does not stop at the prison gate….Before a claim, such as the one made here by the prison authorities, can succeed, measures ought to be taken so as to minimize errors.”
Gough v Canada (National Parole Board) (1990) 45 Admin. LR 304
PRINCIPLE: An individual’s liberty (even one on parole) is weighed heavily against competing interests not to have full disclosure.
Facts: Prison case, with more serious consequences. Former inmate out on parole for many years. He had exemplary record and was almost finished parole when allegations of sexual assault and drug use made against him. Board refused to release details of incidents or names of alleged victims.
Held: court reluctant to accept undisclosed information when a person is facing revocation of parole. Prisoner was already in a situation of ‘conditional liberty’; parole board had failed to justify its belief that disclosure would endanger the informants. Gough’s s.7 Charter rights have been infringed by the refusal to provide him with the confidential information upon which the Board is relying and it is not saved by s.1.
· An individual’s liberty (even the conditional liberty which a parolee enjoys) weighs very heavily in the scales when compared to competing interests.
1. Public Interest in fair procedures for everyone: “[T]here is also a public interest in employing procedures which are fair, for dealing with all members of society including paroled inmates. Procedures which have the appearance of being arbitrary and capricious are by their very nature not in the public interest”.
2. Accused must have enough information to answer the allegations: “Whether the requirement be described as one requiring that the “gist” of the allegations be provided or as one requiring that “an outline of the allegations” be provided is not important. [W]hat is required is enough detail to allow the individual to answer the allegations.
3. Not enough to claim the information is accurate: “The respondent claims that the accuracy of the information in question has been carefully vetted. That may be true but I do not think it justifies refusing to provide the applicant with the information he seeks. The assertion, that the information is accurate, is self-serving and it is no answer to the applicant’s perception that he is being dealt with arbitrarily and capriciously.”
4. s. 7 violation not saved under s. 1: “I am not convinced that a system which puts in the hands of the same body both the decision on the merits… and the decision as to how much of the information with is before it will be disclosed to the applicant, is one which can meet the requirements of s. 1 of the Charter”.
Counsel for the applicant’s argument – that his client would be much better off if he had been charged with criminal offences in relation to the incidents which are alleged.
(Gallant vs Gough)
Ø Balancing of interests
Ø Concern also that if info is not contested, we have no way of knowing if reliable, But Reprisals are a real possibility, and if you don’t protect your sources, they will not come forward with information in the first place.
Ø Reid (Gough) and Desjardins (Gallant) carve out compromise, i.e. can rely on info if court is convinced that source of info is reliable.
Ø Other safeguard is ‘limited release’ give to lawyer and not to client.
Disclosure where concerns for confidentiality of informants - summary:
· Informant identity can be protected (Gallant; Gough)
· Steps to ensure reliability of the information should be taken, decision to not release information should be justified to ensure that duties of procedural fairness/fundamental justice are not violated (Gallant- Desjardins, Gough)
· Compromises may be found in court supervision of discretion to withhold information (allows counsel access to the information), or through release enough information without revealing identity of source (where possible)
· Where section 7 rights are engaged, is concern for confidentiality part of the analysis of fundamental justice in s. 7 (Gallant – Marceau, Desjardins) or is it better dealt with under s.1 (Gallant – Pratte, Gough)?
OFFICIAL NOTICE
-Official notice is the extent and manner in which an agency may, in making its decisions, use material that is not introduced in evidence.
-SPPA - s.16
Davis – Administrative Law (article) “The basic principle is that extra-record facts should be assumed whenever it is convenient to assume them, except that convenience should always yield to the requirement of procedural fairness that parties should have opportunity to meet in the appropriate fashion all facts that influence the disposition of the case”.
NOTE:
SPPA - Notice of Facts and Opinions - s.16 - A tribunal may, in making its decision in any proceeding, (a) take notice of facts that may be judicially noticed; and
(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.
Q: when can an agency properly go beyond the record for a material fact?
-(MUST look to case law to answer this)
Township of Innisfil v. Township of Vespra (1981) SCC
PRINCIPLE: If a tribunal uses any prior decision as a precedent to give parties, proper notice must be given so that they may comment on it.
Facts: Case involved an annexation application; Barrie wanted to annex parts of Innisfil and Vespra to accommodate a growing population
Issue: whether it should accept in evidence a letter written by a government authority which purported to state the provincial govt’s position; before reaching the SCC, this issue had been settled and the letter was admissible.
Held: the board decision was correct, “the Board made its decision on the vacancy factor on the basis of general principles which it had accepted in previous cases and on other evidence which had been presented to it and used its previous experience in Barrie, not as a compelling precedent, but only as an example”. With respect to judicial notice, they held that “it is a sound rule for a tribunal intending to use any prior decision as a precedent to give parties to the hearing proper notice so that they may comment on it”.
ADMISSIBILITY OF EVIDENCE
-It is well settled that agencies are not governed by the rules of evidence used by courts unless some statutory provision requires them, and such provisions are rare.
-For example, Lord Denning in Miller v. Minister of Housing and Local Governmentsaid that “tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law”.
- SPPA - s.15(1)
NOTE:
SPPA – Evidence - What is admissible in evidence at a hearing - s.15(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
Relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
Bond v New Brunswick (Management Board) (1992)
PRINCIPLE: Hearsay evidence is NOT sufficient when a serious allegation has been made.
Facts: Sexual assault case. The victim did not testify; rather the arbitrator relied simply on hearsay evidence of what the victim had told others as well as opinion evidence.
Held: given the sanction and the seriousness of the allegations, this was not sufficient to meet the requirements of natural justice.
Re Clarke and Superintendent of Brokers, Insurance and Real Estate (1985)
Facts: Clarke surrendered her real estate licence when she was charged with theft and fraud. She was acquitted and applied for reissue of her licence. This application was made to the superintendent, who held a hearing. Clarke was sick and unable to attend, counsel for the superintendent introduced transcripts of the evidence from her criminal trial. The transcripts were admitted and the superintendent decided not to reissue her licence, although he said that he did not give much weight to the transcript evidence from the criminal trial. Clarke appealed based on evidence.
Held: the transcript evidence was admissible and the superintendent in admitting the evidence and giving it little weight made no error in law or in fact.
CROSS-EXAMINATION
-SPPA - s.10
SPPA -Examination of witnesses - s.10 A party to a proceeding may, at an oral or electronic hearing,
(a) call and examine witnesses and present evidence and submissions; and
(b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceedings.
Innisfil (Township) v Vespra (Township) (1981) 2 SCR 145 (Ont.)
PRINCIPLE: If the SPPA applies, and unless the relevant statute states otherwise, the right to cross-examination applies.
Facts: Case involved an annexation application; Barrie wanted to annex parts of Innisfil and Vespra; the issue before the board of whether it should accept in evidence a letter written by a government authority which purported to state the provincial govt’s position; before reaching the SCC, this issue had been settled and the letter was admissible.
Issue: The issue before the SCC was whether or not the opposing municipalities were entitled to cross-examine the provincial government official who had presented the letter.
Held: there should have been a right to cross-examine on the letter.
· SPPA applies; no out for government officials; no executive exclusion; if an individual’s rights are in issue and the statute contemplates a full oral hearing, there must be real clear language to support a denial of cross-examination rights.
Re County of Strathcoma No.20 and MacLab Enterprises (1971)
PRINCIPLE: Cross-examination will vary with the nature of the case being heard. Other means such as written answer may be sufficient to correct or contradict any prejudicial statements in their view in order to satisfy procedural fairness.
Facts: The provincial planning Board directed that lands owned by a developer be rezoned from “agricultural general reserve” to “general urban”. A group appealed this who believed the area was unsuitable for residential housing due to odours by nearby industries. The group succeeded on the ground that they had not been given an opportunity to test all evidence by cross-examination. The developer appealed.
Held: appeal allowed, cross-examination is not necessary when other means, written answer, are sufficient to correct or contradict evidence. No lack of procedural fairness.
· “In the process of presenting his own case he is entitled to weaken and destroy the case that is made against him. In trials in Court this is often effectively done by cross-examination. A party is often able to advance his own case from the mouths of his opponent's witnesses. It does not follow that the refusal of or the placing of limitations upon the right of cross-examination will always require that the Court quash an order made in proceedings in which these restrictions are enforced. If he is afforded an equally effective method of answering the case made against him, in other words is given "a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice" the requirements of natural justice will be met. The importance of cross-examination will vary with the nature of the case being heard”.
· “Have the respondents been afforded "a fair opportunity" to "correct or contradict" the contents of the report of Dr. Bernhart? They have been deprived of doing so by cross-examination because its author was not present, but cross-examination is but one method by which this can be done. In the present case, the Board invited written answers to the matters contained in the report. To one who reads the critique of Dr. Turk and the shorter one by Dr. Kleppinger, it is impossible to say the respondents have not taken full advantage of the opportunity afforded to them to "correct or contradict" any "statement prejudicial to their view" in the Bernhart report”.
Re B and Catholic Children’s Aid Society of Metropolitan Toronto (1987)
PRINCIPLE: cross-examination necessary where serious allegation to reputation and if case is decided solely on hearsay evidence.
Facts: The Child Welfare Act (1980) enabled a ‘child abuse register’. If an individual was included on the list, s/he was entitled to notice and to make an application to be removed from the list. Appellant allegedly sexually assaulted a 12 year old girl. Appellant is appealing his name on register. The victim was not called as a witness and thus, unable to be cross-examined. The social worker gave hearsay evidence based on out-of-court conversation with the victim.
Held: It is our view that in the circumstances mentioned, where the appellant was denied the right to cross-examine the alleged victim, the admission of the hearsay evidence did amount to a denial of natural justice; the hearing in this case fell below the minimum requirement of fairness. The appellant was not convicted of sexual molestation but nevertheless it is a grievous stigma to have one’s name in the Child Abuse Register where it may remain for 25 years.
· Hearsay evidence is admissible because of s.15(1) of the SPPA.
o Evidence – What is admissible in evidence at a hearing
115.(1) ... a tribunal may admit as evidence at a hearing ...
(a) any oral testimony
THE LIMITS OF THE TRIAL-TYPE HEARING:
-An important and general problem for lawyers is the appropriate uses and limits of the trial type hearing.
-This problem can most usefully be examined at this point, after a study of its characteristic element, cross-examination.
-Consider a proposal and assume that the decision about the proposal generally. What kind of hearing is appropriate, and what kind of hearing is required?
i.e. consider the issue of environmental tailoring and assume the decision has been make to have a large plant on the shore of a lake and to use water from the lake for cooling...should the pipe be extended far out into the lake, at the cost of millions of dollars,? Or will the lake currents simply push the warm water back to shore?
-We suggest that the decision has 2 characteristics that can usefully be separated into: Fact and Choice.
-Fact Finding – a determination of the current knowledge about the nature and the cost and effectiveness of longer and shorter outlet pipes. One of the elements of the determination will be the extent and risks of uncertainty.
-Choice – given the determination about ‘facts’, the board must make a choice that is ultimately between money and an (uncertain) harm to the fish. In other context, the choice might be more complex and might now involve any element that could be easily expressed in money.
NOTE: A trial process may often disguise choice as fact finding or the application of general standards.
POST-HEARING ISSUES
REASONS:
-We have seen that:
both SPPA s.17(1) and Alberta’s APJA s.7, require decision makers coming within their purview to give reasons for this decisions (in the case of SPPA, only on request). And Quebec’s s.8 QARAJ, and British Columbia’s s.51 ATA, each have a similar provision.
-We have also seem that, until recently, the common law was reluctant to impose on statutory and prerogative decision-makers, an obligation to give reasons for their decisions.
-ALL OF THAT CHANGED IN 1999 WITH THE JUDGEMENT OF THE SCC IN BAKER V CANADA.
-Clearly, the SCC did NOT hold that all exercises of statutory or prerogative power now involve the giving of reasons.
-In Baker itself, it was obviously the importance of the interest at stake that triggered the obligation. The judgement also seems to accept that the existence of a statutory right of appeal from the decision will normally generate an entitlement to reasons.
-It was in1997, in CUPE, where L’Heureux-Dube held that the absence of a transcript of a tribunal’s proceedings could be a fatal error if that led to an inability to make out a case for JR on the grounds alleged.
-It is therefore puzzling why there is no explicit reference in Baker to the facilitation of JR. Of course, there is still a vague residual category: “other circumstances”.
-SPPA - 17(1)
NOTE: The tendency of the courts since Baker has been to require the provision of reasons.
-But this has not universally been the case (Service Corp. International (Canada) Inc. V Burnaby (City) (1999) where municipal corporations were not obliged even after Baker to provide reasons for decisions in planning maters).
DUTY TO GIVE REASONS
Reasons for requiring reasons:
1. Enhance quality of decision making by forcing DM to articulate the relevant issues, and how the evidence and arguments justify the decisions s/he has reached.
2. Written decisions improve standards of agency b/c members of agency can consult reasons.
3. Jurisprudence allows parties to address agency more effectively by having an understanding.
4. Reason allow losing party to know whether DM has understood and fairly supplied the decision.
5. Without reasons, very difficult for effected party to request similar things in future. Must know what went wrong first time to know if you have ground to appeal (or apply for JR).
Arguments for NOT giving reasons:
1. Time consuming and expensive (use a lot of resources that could be spent better elsewhere).
2. Too onerous for members of tribunals who have little adjudicative experience.
3. In many cases, actual decision written by staff of agency members.
4. Requirement of reasons formalizes what was intended to be informal processes different from courts.
Case law: obligation to give reasons:
· General rule - barring statutory directives, common law does not require reasons.
· Exceptions
o Cases where subject matter is of very high interest to individual.
o Charter cases involving s.7.
o Cases involving successive applications.
o Cases where there is a right of appeal (can’t appeal unless you know reason for defeat).
· Baker = duty to give reasons in certain circumstances; two indicia:
1. The importance of the decision to the individual and
2. Whether or not there was a right of appeal (to make a right of appeal effective, you need reasons for the reviewing court to probe).
o “Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision”.
· Since Baker, the tendency of the courts has been to require the provision of reasons.
· Suresh – court supported the provision of substantial reasons in such “danger to the public or the security of Canada” deportation cases at least in risk of torture and related situations. AND, the reasons must emanate from the person making the decision (unlike Baker).
“The Minister must provide written reasons for her decision. These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier's report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor's brief than a statement of reasons for a decision”.
NOTE:
SPPA - Decision: interest - Decision - 17(1) - A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefore if requested by a party.
· THUS, THE PARTY MUST REQUEST REASONS.
-The following judgement of the Federal Court of Appeal is further evidence that courts are giving the Baker reasons requirement a substantive reading, although in a setting far removed from Baker and Suresh.
-Via Rail is a watershed case which states what the content of the reasons must contain:
VIA Rail Canada Inc. V National Transportation Agency (2001) 2 FC 25 (CA)
PRINCIPLE: reasons MUST provide enough insight into the reasoning process.
Facts: Complaint from wheelchair basketball team regarding the tariff for those that needed help on and off the train. Agency determined that the tariff constituted an undue obstacle in the mobility of the disabled persons (undue defined as improper, inordinate, excessive, oppressive by SCC)
Held: reasons given by agency were inadequate, the duty to give reasons is only fulfilled if the reasons provided are adequate. Reasons were inadequate because they did not provide enough insight into the reasoning process followed. Moreover, they were not sufficiently clear with respect to the conclusion that is
· what is adequate depends on each particular case, however, in general adequate reasons are those that serve the functions for which the duty to provide them was imposed.
· The decision-maker must set out its finding of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out and must reflect consideration of the main relevant factors.
· in the case of a regulated industry, the regulator’s reasons for making a particular decision provide guidance to others who are subject to the regulator’s jurisdiction.
· To comply with the duty to give reasons, the decision-maker must set out the finding of facts and the principal evidence upon which those findings were based; reasons must address the major points in issue.
Effect of breach of the duty to give reasons
· If you fail to give reasons or if you fail to give sufficient reasons, this can give rise to a court’s discretion to set aside the decision.
· You can seek certiorari (quash the decision), prohibition, or mandamus.
· In judicial review applications, the right to a remedy is always discretionary; even if you make out your case, the decision-maker is not bound to give you the relief you seek, even though there is a right underlying the request.