NCA Administrative ReviewPosted onOctober 1, 2010byjayfoxsjamPROCEDURAL FAIRNESS: THRESHOLD ISSUETHREE SOURCES OF PROCEDURAL ENTITLEMENT(1) Legislation;Public decision makers (PDMs) are acting under legislative authority, and these statutes will probably have limitations set out and procedures set out for the PDMs. It is possible for the statute to limit your procedural entitlements at common law (i.e. the statute might limit your right to an oral hearing). However, there are some entitlements that exist as a Constitutional protection, and these rights may be immune from derogation.(2) Common law;certain types of procedure entitlements have been developed over time (right to a fair hearing, right to oral hearing, right to disclosure, etc.). Even if the statute itself doesnt give a procedural entitlement, you might have one here.(3) Charter:When the legislature has chosen specific procedures for the administrative tribunal, and if it denies an alleged procedural right (i.e. oral hearing), then the Charter is the only other way to enforce that right:(a)Admin actors must exercise their statutory authority in accordance w/ the Charter(b)When an admin decision deprives someone of life, liberty or security of the person, then s 7 of the Charter is engaged(c)The definition of fundamental justice is informed by the duty of procedural fairness in administrative law (Suresh goes into this)(d)Caution, however, that procedural fairness under administrative law principle applies much more broadly than s 7.

OVERVIEW OF THRESHOLD ISSUE Does procedural fairness apply at all?(1)Before getting into common law, look at procedures provided bystatute: Does it spell out a procedure to follow? If yes, advise that to be followed, b/c dont have to get into murky common law territory. Assuming no, does it exclude requirement of procedural fairness? If it is silent, common law will be implied?(2)If it is implied, must determine whether it applies tothis party.Look at 3 criteria inKnight (says they come fromCardinal):(i)Nature of decision:(a)How specific it is (does it affect one persons rights, or is it a general policy decision)(b)The degree of finality (a decision of preliminary nature will not in general trigger the duty to act fairly,whereas a more final nature may have such an effect);(c)Decisions of a legislative and general nature do not entail the duty(ii)Relationship b/w decision maker and party:1. Whether its regulated by public or private law)2. What sort of decision maker are we looking at) (is it an individual relationship or broad based)(iii)Impactof decision on interested party (usually the most significant does the person have an important interestin the decision)(3)Look at other things that might exclude duty: e.g. emergency (Cardinal); legislative function (Inuit Tapirisat)RIGHT TO PROCEDURAL FAIRNESSPrior toNicholson, administrative decisions could be made without regard to the rules of natural justice. The dichotomy b/w judicial and administrative decisions resulted in the preoccupation with categorization. Under the traditional approach, where admin authorities were given the powers to do X, the person wouldnt have the power to appeal that decision. But after Nicholson, the ability of an admin tribunal to do X is not determinative, as the interested person may be afforded with at least some procedural protection to be treated fairly.Nicholson v Haldimand-Norfolk Regional Police Commissioners (Duty of procedural fairness applies to administrative decision and even if a statute is silent on procedural entitlements, common law requires at least some opportunity to be heard before decision):FACTS:14 months after date of hire, N dismissed, w/out being given reasons and w/out opportunity to make submissions. Appellant applied for dismissal to be quashed, claiming he was entitled to be treated fairly by the Commission. The Police Act governs the Commission. The Act allows them to dispense people without reason if employed less than 18 months.ISSUE:Can N claim an inherent procedural right in common law, even though the statute needed to be 18 months for a right to hearing?HELD Just because statute says this, doesnt mean a police officer shouldnt get any opportunity for a hearing whatsoever. This isnt a judicial decision, it was an admin decision. But the category approach is arbitrary and unfair to individual interests.If a person subject to pains and penalties, or in some way adversely affected (the consequences are important), then he should be told the case against him, and afforded anopportunity to be heard.The appellant should have been told why his services were no longer required and given an opportunity (whether orally or in writing) to respond. So, the level of procedural protection is not full natural justice not saying that there has to be a full borne court procedure. N should have been afforded at least some procedural entitlement, not necessarily what he would have received at 18 months.Cardinal v Director of Kent Institution (6 years after Nicholoson) (Where there is an apparent emergency, there is no requirement of prior notice and an opportunity to be heard before the decision):FACTS: Prisoners allegedly in hostage taking situation; subsequently transferred to another facility and placed in segregation by Director, against the recommendation of the Segregation Review Board; Director didnt inform Appellants of reasons, nor give them an opportunity to tell their side of story (procedural concerns)ANALYSIS: No doubt that Director was under duty of procedural fairness (which Court has affirmed as a common law principle need to look at effect on the prisoners) (Nicholson): e.g. (1) Less likely to instruct/interact with counsel (2) restricts their ability to do things (a duty of fairness lies in every public authority making admin decisions which affect the rights, privileges and interests of an individual)Question is what the duty may reasonably require of an authority, and what is to be considered a breach. Here, given the urgent in nature of the situation, hearing not necessary (so,where there is an apparent emergency, there is no requirement of prior notice and an opportunity to be heard before the decision)But once a recommendation to end the segregation of prisoners had been made by the review body, the duty of fairness required that the prisoner director inform the inmates of his intended decision. Leaving the inmates there after segregation, time of urgency passed.HELD B/c of the serious effect of the Directors decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity to make representations to him concerning these reasons. This is the minimal requirement of procedural fairness.Knight v Indian Head School Division:(Important for outlining the factors used to assess the 3Cardinalfactors assessing existence of general duty of fairness)FACTS:Ks employment contract stipulated that he could be terminated either by 3 months notice or by the Board for just cause. The Board terminated his employment without cause on 3 months notice. Prior to termination, there werenegotiations back and forth between the Boards lawyers and his lawyers. K brought action alleging wrongful dismissal. Went to Sask COA, where K awarded damages as an office holder under the Education Act, he was entitled to be terminated according to principles of procedural fairness, and could only be removed for cause. The Board appealed.ANALYSIS:Procedural protections he was seeking didnt exist in statute, but at common law, its about inherent procedural rights3 Factors for Establishing Common law Duty of Fairness:(1)Nature of the decision:(a)how specific it is (does it affect one persons rights, or is it a general policy decision)(b)the degree of finality (a decision of preliminary nature will not in general trigger the duty to act fairly, whereas amore final nature may have such an effect);(c)decisions of a legislative and general nature do not entail the dutyHere, the decision made by Board was final and specific, directed at terminating the employment of therespondent.(2):Nature of Relationship:In the case of employment relationships, 3 categories:(a)master-servant (contractual)(b)office at pleasure (dont have to get to the threshold of cause)(c)office where one can be removed with cause.TheJUSTIFICATIONfor granting to the holder of an office at pleasure the right to procedural fairness is that, whether or not just cause is necessary to terminate the employment,fairness dictates that the administrative body making the decisions be cognizant of all relevant circumstances surrounding the employment and its terminationTo give procedural fairness to the one being dismissed would not import into the termination decision the necessity to show just cause for the employees dismissal, but would only require the admin body to give the officer holder reasons for the dismissal and a fair hearing for rebuttal.(3):The impact of the decision on the terminated party: There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual. Courts have recognized that the loss of employment against office holders will is a significant decision.Statutory Framework: From that, it follows that there was a general duty to act fairly on part of Board. Now, the statutory frameworkmust be examined in order to see if it modifies this right The provisions ofThe Education Actmust clearly show (either by express language or necessary implication) that the respondents general right to procedural fairness has been restricted:Question to ask does the Act explicitly or implicitly excuse the admin body from acting fairly?. In this case, Act stipulated to look at contract to see procedure of termination. Here,presumptionthat parties intended procedural fairness would apply arises; and no provision which overrides this presumption [So, statute can override common law duty of fairness. But in order to overrule it, it has to be explicit. Here, majority said the contract was silent]Content of Duty: Next, look at the content of the dutythe concept of procedural fairness is variable and its content is to be decided in the specific context of each case.Since the respondent could be dismissed at pleasure, the content of the duty of fairness would be minimal, andnotice of reasons for boards decision and affording opportunity to be heard would be sufficient. Was the dutycomplied with? If it could be found that the respondent had knowledge of the reasons for his dismissal, and had an opportunity to be heard, the requirements of fairness will be satisfied even though no hearing.Flexible threshold means flexible content. Key requirement is that e/ee knows the reason of the dismissal and has a chance to respond to it in some way.HELD The appellant board made itself sufficiently available for discussion through the meetings with the respondent and his lawyer so that each partys concerns were made fully known to each other. By inference, the respondent must have known the reasons for his dismissal and was provided with every opportunity to be heard.No remedy for K, as he was given a fair opportunity to convince the Board that he should keep his job.MINORITY (Sopinka J) For employment relationship of the category of office held at pleasure, duty of fairness should only arise where an employee can identify in the statute, regulations or contractual provisions governing the relationship provisions which expressly (or by necessary implication) confer upon the employee a right to be heard [Note: This is where Dunsmuir, below, comes in and says, yes, it is primarily an employment matter]CONTEXTS WHERE DUTY OF FAIRNESS DOES NOT APPLY (LEGISLATIVE DECISIONS)Most cases are trying to work through the distinction between the general, ministerial and policy decisions that do not attract procedural entitlement, as opposed to administrative, specific or personal decisions that do.Where do we draw the line?The following cases indicate the procedural fairness does not apply to legislative decisions or functions (but the decision must be constitutional). To determine whether a decision is legislative, look at:(1)Is there a lis (a dispute between parties)? If its a policy based decision, with no core argument,then its more likely to be legislative(2)Is it between a defined number of parties with defined interests, or is it something that is morebroad based?)(3) Is it affecting a broad spectrum or a narrow group of interests (the broader, the more likelylegislative) (A-G v Inuit Tapirisat)A-G v Inuit Tapirisat (Procedural fairness doesnt apply to legislative decisions if they are not acting in an administrative body function):FACTS: After application for telephone rate increases in Ontario, Quebec and Northwest Territories, the Inuit Tapirisat and the National Anti-poverty Organization appealed to set aside portion of the CRTCs decision. Bell Canada filed reply. Inuit Tap. preparing final reply, but Governor in Council issued decision denying appeal.Their decision followed months of hearings.The respondents position was founded on the failure of the Governor in Council(a)to receive actual petitions from the respondents and(b)to afford the respondents the opportunity to respond to the case made against them by the Minister, the department officials and the CRTC.ANALYSIS:The central issue is whether there is a duty to observe natural justice in, or at least a lesser duty of fairness incumbent on, the Governor in Council in dealing with parties such as the respondents upon their submission of a petition under s 64(1) of the National Transportation Act.While the duty to observe procedural fairness need not be express, it will not be implied in every case. It is always a question of construing thestatutory schemeas a whole in order to see what degree, if any, the legislator intended the principle to apply. *Decisions of Cabinet/ministers are not automatically excluded from requiring procedural fairness:If they are making administrative decisions, then they dont have immunity.What makes a decision legislative:(1)Is there a lis (a dispute between parties)? If its a policy based decision, with no core argument, then its more likely to be legislative(2)Is it between a defined number of parties with defined interests, or is it something that is more broad based?)(3) Is it affecting a broad spectrum or a narrow group of interests (the broader, the more likely legislative)HELD Under s 64, theCabinet, as theexecutive branch of the government,was exercising the power delegated by Parliament to determine the appropriate tariffs for the telephone services of Bell.It affected a large group of citizens. Unless otherwise directed in the enabling statute, theCabinetmust be free to consult al sources which Parliament might consult had it retained its function.Thewordingadopted by Parliament makes this clear. TheGovernor in Councilmay actat any time; he may vary or rescind any order, decision, rule or regulation in on his own motion. This is legislative action at its purest. In such circumstances, the Court must fall back upon the basic jurisdictional supervisory role and construe the statute to determine whether the Governor in Council has performed its functions in accordance with Parliament mandate. *Basically, the Cabinets power was deemed to be legislative in nature, in part b/c the legislation authorized the Cabinet to overturn a decision of the CRTC on its own motion legislative action in the purest form*.COMMENT:Cabinet and ministerial decisions are not subject to the legislative exemption per se, but it will often be easy to characterize Cabinet and ministerial decisions as legislative, and as a result they will be exempted from the duty.Reference Re Canada Assistance Plan (Federal government terminating payments under cost sharing for social assistance was purely a legislative decision):FACTS:Under Canada Assistance Plan, federal government made agreements with provinces to share cost of social assistance programs; agreements could be terminated by mutual consent or one year notice. Fed gov subsequently limited payments under plan.ANALYSIS:Court reaffirms that if its a purely legislative decision, the courts wont impose further requirements (Question: Whether it is the legislative exception principled, or is it a way of not interfering with an admins decision).Also, the issue/doctrine of legitimate expectation raised that is, 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 appellant concedes that there is no legal impediment preventing Parliament from legislating, but contends that the government is constrained by the doctrine from introducing the Bill (to limit payments) to Parliament. But there is no support for the position that the doctrine can create substantive rights. Where it is applicable, it can create a right to make representations or to be consulted. *It does not fetter thedecisionfollowing the representations. Parliamentary government would be paralyzed if the doctrine could be applied to prevent the gov. from introducing legislation in Parliament.HELD Appeal allowed. The rules governing procedural fairness do not apply to a body exercising purely legislative functionsWells v Newfoundland (Legislature passing law abolishing a quasi-judicial position was not bound by duty of fairness):FACTS: The Nwfld Legislature passed legislation abolishing a quasi-judicial position to which Wells had been appointed.HELD Wells argument that he should have been accorded procedural fairness was rejected by the Court which stated: 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.PROCEDURAL FAIRNESS IN EMPLOYMENT TERMINATION CONTEXTSDunsmuir v New Brunswick (Where contract of employment, dont need admin/public law; ModifiesKnight):FACTS: D hired as Court Services Legal Officer. He was an employee under NBs Civil Service Act w/ a written contract of employment. Employment terminated with 4 months notice. Cause was not alleged. D filed grievance under Public Service Labour Relations Act. Grievance adjudicator declared termination void. Province applied for judicial review. Court of Q.B and COA found the Ds right to procedural fairness not breached. D appealed.ANALYSIS:We are of the view that the principles established in Knight relating to the applicability of the duty of fairness in the context of public employment merit reconsideration. What matters is the nature of the employment relationship b/w the employee and the public employer.In practice, a clear distinction b/w office holders and contractual employees has been difficult to maintain. In Knight, majority relied on whether the public employees position had a strong statutory flavour but this is an inadequate test.Most office holders positions have contractual employment relationship. If the distinction has become difficult to maintain in practice, it is also increasingly hard to justify in principle.Further, there are 3 main (historical) reasons fordistinguishing between office holders and contractual employees, all of which are problematic.First, historically, offices were viewed as a form of property, and thus could be recovered by the office holder who was removed contrary to the principles of natural justice. Employees who were dismissed could only sue for damages. This conception of public office has faded.Second, the dismissal from public office involves the exercise of delegated statutory power and therefore should be subject to public law controls, unlike the dismissal of a contractual employee which only implicates a public authoritys private rights as an employer.Third,unlike contractual employees, office holders did not typically benefit from contractual rights protecting them from summary discharge B/c of this insecurity, it was seen desirable to impose minimal procedural requirements to prevent arbitrary dismissal. **But in our view, the existence of a contract of employment, not the public employees status, is the crucial consideration. Where the employment relationship is contractual, it becomes difficult to see how a public employer is acting any differently in dismissing a public office holder and a contractual employee.**Administrative law vs Private law: Administrative law is about preventing the arbitrary exercise of delegated powers (distinguish this with Knight). So when government as party to the contract acts inGOOD FAITH, there is no need for administrative law to step in, as that exercise of power isnt arbitrary.Administrative vs Private law Remedies: Private law remedies are more fair and principled. E.g. there is no duty to mitigate under admin law. As a result, an employee may recoup much more than theyve lost. Further, it is true that the remedy of reinstatement is not available for breach of contract at common law. But breach of a public duty of fairness does not lead to full reinstatement. The dismissal decision is void ab initio, meaning that the employment is deemed to have never ceased. The employer, though, is free to dismiss the office holder again.HELDTo the extent that Knight ignored the important effect of a contract of employment, it should not be followed. By imposing procedural fairness requirements on the respondent over and above its contractual obligations and ordering a full reinstatement of the appellant, the adjudicator erred in his application of the duty of fairness.PROCEDURAL FAIRNESS: CONTENT OF DUTYTEST FOR DETERMINING THE CONTENT OF THE DUTYUnderlying the following factors, as noted in Baker, is the notion that thepurpose of the participatory rights contained is to ensure that administrative decisions are made using fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity of those being affected by the decision to put forward their views:1. Nature of the decision being made and the process followed in making it: The more the decision is seen as judicial or quasi judicial, the more likely procedural protections will be like that of a trial model. I.e., is it adversarial, two party type decision? Or, is it more like policy based (guided by discretion)? E.g. In Suresh, deportation hearing had elements of judicial proceeding, it also had an element of discretion, so could go either way on this factor E.g. In Suresh, it was a prospective decision which courts generally dont engage in, so less judicial, less extensive safeguards E.g. In Baker, a decision determining whether there were humanitarian and compassionate grounds for exemption from being deported was noted to be a highly discretionary decision2. The nature/terms of statutory scheme 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. E.g., if theres a privative clause, then that factor will indicate higher procedural requirements. In Baker, the decision of whether there are H & C grounds within the statutory scheme as an exception to general principles of immigration law, which suggests more relaxed requirements under the duty. But, there was no appeal procedure In Ha, it was noted that simply b/c visa officers were not obliged to interview all applicants doesnt diminish the procedural protections that they owe to those they do interview (once they interview, they must do so in accordance w/ duty of fairness).3. The importance of the decision to the individual(s) affected: The more important, and the greater its impact, the more stringent procedural protections will be mandated. The lesser the impact, the lesser the content (the fewer procedural protections). E.g. In Suresh, apparent that where one faces restrictions on freedom (deportation), suggests high amount of procedural safeguards E.g. In Markwart, apartment complex demolished, and was tantamount to expropriation without compensation; so, very significant impact (compare/contrast) E.g. In Homex, passing a by law to prevent sub-division of property had a significant impact on party4. The legitimate expectations of the person challenging the relevant decision: Did the complainant receive a clear/unambiguous representation that has induced in him/her a reasonable expectation that they will retain a benefit (CUPE v Ontario)? If a claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty. Also, if a claimant has a legitimate expectation that a certain result will be reached, fairness may require more extensive procedural rights than would otherwise have been given (note, though, that the doctrine cannot lead to protection of that expected outcome) E.g. In Congregation, the Municipality followed an involved process in responding to the Congregations first rezoning application, in doing so giving rise to Congregations legitimate expectation that future applications would be carefully considered. E.g. In Baker, court denied that the articles of the Convention, based on the fact that it has been ratified by Canada, gave rise to an reasonable expectation that certain procedures would be followed. This was not equivalent to a government representation. But see Suresh, where being a signatory to the Convention Against Torture indicates an intention that they will abide by it. In Ha, visa officer wrote to counsel stating that counsel are never allowed at interviews. This is inaccurate statement of law, as visa officers must determine cases based on their facts. Thus, as a result of a general statement that counsel cannot attend interviews, the appellants may have assumed that it would be futile to attempt to ask the visa officer to reconsider his decision.5. Deference to the procedural choices made by the decision maker: The Court must guard against imposing a level of procedural formality that would unduly encumber efficient administration. In Ha, however, counsel was only asking to observe proceedings. This would not unduly encumber efficient administration (see Ha) [In other words, depending on the NATURE of the procedure requested, this factor may have different results] Like in Baker, where the statute gave the decision maker discretion to not conduct interviews, was a similar discretion afforded to the decision maker in this case? If so, deference must be given See Congregation de temoins: Municipal decisions on rezoning fall w/in the sphere where Municipalities have expertise beyond the judiciary. But this doesnt carry much weight where there is no record to indicate that the Municipality has actually engaged its expertise in evaluating the applications.Conclusion:Balancing the factors, might say that:1. Minimal requirements are adequate Extensive requirements are needed Or something in the middleBaker v Canada (Minister of Citizenship and Immigration) (Sets out factors to test what the content of the duty is)FACTS:B, Jamaican, entered Canada in 1981. Never received permanent resident status. Four children (who were all Canadian citizens) while living in Canada. B was suffering from psychiatric illness. She was ordered deported in 1992. B applied for exemption from requirement to apply for permanent resident outside Canada, pursuant to Immigration Act, based upon humanitarian and compassionate considerations. B made submissions, through lawyer and Childrens Aid, including that she was sole caregiver for 2 of her children, and that the other 2 depended on her for emotional support. Response was contained in a letter by Immigration officer, stating that there were insufficient humanitarian and compassionate grounds to warrant request. Letter contained no reasons for that decision.ANALYIS:(1)Existence of duty of fairness: Both parties agreed that a duty of procedural fairness applies to H & C decisions. The decision affects the rights, privileges or interests of the appellant which is sufficient to trigger the application of the duty (Cardinal v Director of Kent)(2) Application ofBakerfactors:Appellant claimed that the duty is affected by the existence of legitimate expectations (based on the articles of the Convention on the Rights of the Child. But there is no reason to conclude that the decision on her H & C would be guided by the Convention.(a)Participatory rights: Was the failure to accord an oral hearing and give notice to B or her children inconsistent with the participatory rights required in these circumstances? Several factors above enter into the determination of the type of participatory rights required here: (i) an H & C decision is different from a judicial decision (as it involves exercise of high amount of discretion (ii) the H & C decisions role is within the statutory scheme as an exception - These factors suggest more relaxed requirements under the duty. But, (iii) there is no appeal procedure, and (iv) this is a decision that has exceptional importance to the lives involved - these lead to the content of the duty being more extensive. Finally, (v), the Statute provides significant procedural flexibility for the Minister/immigration officers to not conduct interviews.Must balance these factors. It cant be said that an oral hearing is always necessary, as meaningful participation can occur in different ways. Here,B had chance to submit info (through lawyer) about her position. This satisfied requirements of participatory rights.(b)Provision of reasons**: B submits that the duty of fairness required that reasons be given by the decision maker. It has been held that in H and C applications, reasons are unnecessary. More generally, common law rule has been that duty of fairness doesnt require reasons for administrative decisions. YET,Courts and commentators have stressed the usefulness of reasons for ensuring fair decision making (i.e. more articulate and thought out). And that it demonstrates to parties that their concerns were heard and considered.But,in Courts view, the duty of fairness may require it in circumstances: *where there is a right to appeal, then there will usually be a right to reasons*(how can you appeal if you dont know why a decision maker decided?) But Court concluded that this requirement was fulfilled by the notes of Officer Lorenz.Comment: Statutory provisions are important. Here, s 82.1 and 83 contemplated judicial review. It is important to note the signals that legislation can give us as to the relationship b/w admin body and courts. Here, clear statement that courts can hold a supervisory function where they can oversee the procedures undertaken.DOCTRINE OF LEGITIMATE EXPECTATIONSAffords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there would be no such opportunity. 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, or that they would retain a benefit, is the gist of the doctrine.Overview of Doctrine: At the end of the day; we need to establish a clear promise by conduct or statement by a public authority for a legitimate expectation argument to work.(CUPE v Ont.) Legitimate expectation can only be used to get admin body to do something that admin body can do lawfully (e.g. if it would be against their statute, it wont work)(CUPE v Ont). You cant use legitimate expectation arguments for substantive claims(Mount Sinai Hospital)Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services) (Legitimate Expectations does not give rise to changes of substantive decisions):FACTS:For many years the hospital had been functioning in violation of its licence. The Minister of the day said they could still operate if they relocated. They hospital did lots of fundraising and re-located. The govt changed and the new Minister wanted to shut them down because of budgeting issues. The hospital appliedmandamusto compel the Minister to grant the licence.Majority of SCC held that Minister already exercised its discretion vis--vis the permit when it promised to issue it, and acted outside competence limits when refused to issue permit.ANALYSIS (Minoritys Judgment):Respondent argues thatdoctrine of legitimate expectationscan be used to compel not only procedural protection, but substantive result as well, so long as its not contrary to law and is within power of decision maker.(1)English vs Canadian Contexts:(i)English law:English law adherers to the doctrine the way the respondent proposes, but in that jurisdiction, the doctrine performs a number of functions that in Canada are kept distinct. The English doctrine has developed into a comprehensive code the embraces the full gamut of administrative relief, from procedural fairness (at the low end), through enhanced procedural fairness, and on to the high end where substantive relief is possible.Some of the English authorities that the Respondent relies on are at the high end, which represent a level of judicial intervention that our courts have considered inappropriate(ii) Canadian law: Canadian casesdifferentiatebetween concepts of procedural fairness and doctrine of legitimate expectation: on one hand, concern that treating procedural fairness as a subset of legitimate expectations may complicate the development of highly flexible rules of fairness; on the other hand, concern that using Ministers prior conduct as reason for substantive relief may strike the wrong balance between private and public interests. Further, the availability and content of procedural fairness is generally driven by thenatureof the applicants interest andnatureof power exercised, while the doctrine looks to theconductof the public authority.(iii)Does this doctrine equal to estoppel?: No requirement for estoppel to arise, as the applicant who relies on the doctrine may show, but does not have to show, that he or she was aware of such conduct, or that it was relied on with detrimental outcomes.(iv) Cites Reference re Canada Assistance Plan: Court notes this authority, which regarded doctrine as an extension of rules of natural justice and procedural fairness, which may afford a party affected by the decision of a public official an opportunity to make representations (or whatever procedural remedies) in circumstances in which there would otherwise be no such opportunity. The Court there shut the door to substantive relief.Court there also noted 2 other limitations: (1)a purely ministerial decision, on broad grounds of public policy, will normally result in no procedural protection, and an attack on that discretion will have to be deal with upon an abuse of discretion (below); (2) public bodies exercising legislative functions may not be amenable to judicial supervention(2)Promissory/equitable Estoppel: Court mentions that this remedy may be available against a public authority in narrow circumstances. In English cases, this has been engulfed by the general heading of fairness (rather than law of contract). The US similarly stays away from its use in this context. *Then, Court states thatIFthis were a private law case, the elements of promissory estoppel are present. PUBLIC LAW ESTOPPEL requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped.Application: The Minister is mandated in broad terms to act in the public interest. As a matter of statutory interpretation, it seems clear from the broad test of s 138 (the public interest) that the legislature intended the Minister to determine the appropriate transitional arrangements from the old policy to the new policy. *The wording of the statutory power AND the person who wields it (a Minister) is important.Cases relied on by respondents generally deal with lesser powers at a lower level of officialdom.Also,in the same cases,none of them involved a statutory power of decision framed in broad policy terms.C.U.P.E v Ontario (Minister of Labour)(Evidence of representations/past practice cannot be equivocal under doctrine AND legitimate expectations cant be in direct contradiction to statutory scheme):FACTS:The Minister announces that they will reduce to sector based position of appointment which the Union interpreted as the roster method. Minister then appoints retired judges that werent on the roster, breaking tradition. Claim was that legitimate expectation is breached, because of understanding that Minister would go back to the roster methodANALYSIS:(i)Ministers alleged failure to consult with the unions about the change in the process of appointments: Unions claim appointment process was so entrenched, yet he Minster amended it without notice/consultation (the issue here is consultation). They say that his decision affected the vital interest of union members (earning a livelihood). Court held that assuming the existence of a duty to consult, I think it was satisfied parties agree there were extensive meetings at time of Bill 136, and Minister signalled reform.(ii) ***Alleged violation of Doctrine of Leg. Exp***.:Definition: The doctrine of legitimate expectation is an extension of the rules of natural justice and procedural fairness. It looks to the conduct of a Minister or other public authority in the exercise of a discretionary power, including practices, conduct or representations that can be characterized asclear, unambiguous and unqualified, that has induced the complainants a reasonable expectation that they will retain a benefitor be consulted before a contrary decision is taken.In this case, the evidence of past practice is equivocal, and as a result, the evidence of a promise to return to past practice is also equivocal. The Minister says the return to the sector based system was HLDAA, including the broad latitude afforded to him by s 6(5). The unions say the sector based system was the s 49(10) roster. Evidence shows that the appeal to the list varied from Minister to Minister.Whether or not Ministers limited themselves to the list seems to have been a matter of policy/individual preference.Evidence shows that unions were sceptical of some appointments from the list, which further shows that there was no obligation to use the roster complied under s 49(10).Minister indicated that academics and judges might be used to staff the dispute resolution commission. Two faces expressly mentioned. Court then noted that a statement by the unions explicitly recognised that there may be appointment of an individual (not on the list) with broad experience.**To bind the exercise of the Ministers discretion, the evidence of the promise or undertaking by the Minster must generally be such as, in a private law context, would be sufficiently certain and precise to give rise to a claim for breach of contract or estoppel by representation **.But the evidence doesnt establish a firm practice in the past of appointing HLDAA arbitrators, or proceeding by way of mutual agreementCOMMENT:Past practice of the government official and quality of evidence of an alleged undertaking affect whether the doctrine of legitimate expectation arises.SPECIFIC PROCEDURAL ENTITLEMENTSOverarching question is whether X had the opportunity to be heard.NOTICENotice is probably themost important key component of procedural fairness.Failure to give notice at all will always result in the fatality of the decision, because without notice, many other procedural rights cant be exercised.4 key aspects: Form Written notice is the norm, unless context permits Not absolutely essential in all cases You just need to effectively and adequately informed Manner of service Personal service is the norm, unless context permits Main difficulties are where a number of persons are affected, how do you effectively give notice to a whole community/city/province? Also what if you cant even be sure that the decision will affect one group or another? Whether that form of delivery will reach the persons affected (i.e. newspaper is bad for people who dont read newspaper) May need to be specific depending on complexity How reliable is the manner of service (mailing may fail, e-mail server may be clogged, or door-to-door man may be sick) Timing The amount of time will vary depending on the complexity of the matter, how much info you must gather in your defence, etc. Content Information that has to be given to affected individuals When notice is given, what does that notice need to contain? You need to know the basic information (i.e. this allegation has been amde against you, the hearing will be on this date, and what will happen to you if the allegations are found to be true) Who made the allegation?Homex Realty v Wyoming (Villiage) (Noticepriorto decision where substantial right affected, even where statute is silent)FACTS:Dispute over by-laws; who was going to bear the costs of a new development? Owner of land (Atkinson) entered into agreement with Village of Wyoming to install municipal services on land, which was to become new subdivision. Under the agreement, the owner was to finance the surfacing of all roads, drainage, among other services. The owner was not permitted to sell land unless agreement had been fully carried out, or the Village consented. Appellent Homex bought most of subdivision with Villages consent before installation of most services. Extensivenegotiations to have H pay for costs of service were unsuccessful, and so passed by-law deeming lots owned by H not to be a registered plan of subdivision, without prior notice to H. Relevant legislation governing the Villiage was the Planning Act, which talked about the procedures required when passing by laws.ISSUE:Can a municipality just pass a by-law directed at a particular situation that stacks the deck in the favour of the municipality without complying with the common law duty of procedural fairness?ANALYSIS: The courts historically developed proposition that wherever a statute authorizes the interference with property or other rights and is silent as to whether or not the agency in question is required to give notice prior to intervention, courts will supply the omission of the legislature and will be required to provide the opportunity to be heard. Today, the principle may apply, depending on circumstances. Wont apply if legislative framework precludes such a requirement (unless the legislation is unconstitutional). **In determining the appropriate interpretation of s 29(3) of the Planning Act, the: (i) statutory framework, (ii) the nature of the action being undertaken and (iii) the general circumstances prevailing at the time of action must be taken into account.HELD Here, statute doesnt expressly require notice to the affected landowners PRIOR to passing of by law(i)Nature of the decision:The action taken by the Council was not legislative in substance, but rather was quasi-judicial in character (e.g., it represented the reported culmination of theinter partesdispute conducted on adversarial links between Homex and the Council) (therefore, content will be increased, not attenuated(ii)Concluding that the principle ofNOTICEarises, the court noted that the Statute doesnt displace the old rule ofaudi alteram partemand the resultant duty in Council to hear first and decide later.Generally, where procedural fairness is required, notice will be required before a decision is made if there is a significant interest affected(in this case, it required the filing of a copy of the by law with the Minister, and it must have been registered and mailed to the RO of the affected lands). *Such a conclusion is facilitated by the further aspect of the case that the Council has acted as the judge of its own actions in determining the outcome of dispute between itself.COMMENT:While notice prior to a decision will generally arise as a requirement of the duty of fairness,Bishop v Ontario Securities Commissionis an example where it would not in that case, the whole purpose of the Act might have been defeated if the chairman could make an order or ruling under that section only on notice to the person affected, where a negative consequence upon 3rdparties would arise with the provision of notice.In many circumstances, the statute will outline the manner in which notice is to be given, who is entitled to receive notice, and what the notice is to contain.Where statute doesnt specify, procedural fairness requires that the note be sufficient to let persons know how they may be affected and to allow for adequate preparations to make representations at a hearing.Pre-hearing procedural fairness also generally requires that those parties affected by the administrative proceeding or decision receive disclosure of the case to be made against them. The following case discusses both issues of notice and disclosure.CPR v Vancouver(If notice is required at common law, must givesufficientnotice, namely notice that allows party to be aware of nature and subject matter of hearing):FACTS:Strip of land in the City of Vancouver which has been owned by the CPR for more than 100 years. For most of that period, the land was used as a railway. However, rail operations ceased in 2002. When it became apparent that rail operations would eventually come to an end, the C.P.R. began to make plans for re-development of the land to permit commercial and residential uses. But the City adopted bylaw to designate the corridor as a public thoroughfare for transportation, and to freeze the redevelopment potential and to confine the C.P.R. to uneconomic uses of the land.ANALYSIS:Should the by-law be set aside for procedural irregularities?(i) The Vancouver Charter imposesno statutory requirementto hold a public hearing before adopting a bylaw.(i) But given the potential impact of the by law on the CPR, it owed it a duty of fairness.(ii) The City attempted to fulfill this duty through the public hearing process (required by the V Charter) the issue is whether meets the standard of fairness re: the Baker criteria.CPR had 3 complaints re: the hearing process:1. FlawedNOTICES: Advertisements were made with contact addresses. Notices given said would designate corridor for purposes only of transportation, including rail, transit etc.. CPR said by not saying by law was designating private land as public, it wasnt enough. ***Court said NOTICE clearly gave the FLAVOUR of the by law being considered. Even though alternative methods may have been used, what is required is FAIRNESS, NOT PERFECTION.Test: Where it can inferred from the circumstances that the party was aware of the nature and subject matter of the hearing, then otherwise insufficiently specific notice will be sufficient 2. Change to the by law after hearing: Alleged that addition of the exclusion of SkyTrainafterthe hearing, without further hearing, violatedlegitimate expectation. Whether City acted contrary to L.E. must be decided in context of nature of Citys decision making power, the statutory scheme and the Citys role in arriving at a decision in interest of whole city. The statutory scheme allows city to revise development plans w/out hearing; the decision is not judicial, but legislative; the City exercises discretionary power in the public interest. *These factors may attenuate the duty that might otherwise exist to meet the expectations of the interested parties. Court was satisfied that Citys procedure was fair process (e.g. the ODP by-law originally drafted raised no expectation that the corridor could be used for transportation SkyTrain was but a possibility).HELD CPR has not made out a case for declaring the by law invalid on procedural grounds the Citys conduct in enacting the by law complied with the requirements of fair process. Also, the City didnt exceed its powers granted to it by the Vancouver Charter.DISCLOSUREDisclosure is a key component to exercising ones right to be heard, for without disclosure, it will be difficult to present a full case at a hearingStinchcombe: The rule for disclosure in trials does not apply to admin decisions, but the principle underlying that rule still has weight in admin processAhani v Canada: General rule is, when individual interests are at stake, procedural fairness requires at leastsome level of disclosure.Suresh v Canada (Minister of Citizenship and Immigration) (Procedural fairness requires that a person who establishes prima facie a risk of facing torture or a similar abuse must be informed of the case to be meet and a chance to respond and challenge the validity of the information that the decision maker is using to base his decision on):FACTS:Refugee claimant faced deportation to Sri Lanka, where he claimed he was likely to face torture. Minister deported him pursuant to s 53(1)(b) of Immigration Act because he thought he was a danger to security of Canada. The appellant presented written submissions and evidence to the Minister, but had not been provided with a copy of the immigration officers memorandum, nor with the opportunity to respond to it orally or in writing.ANALYSIS:The S.C.C applied Baker factors as follows:(i)The nature of the decision: Bears some resemblance to judicial proceedings. While decision is of serious nature and made by individual who evaluated and weighed risks, its a decision to which discretion must attach. Court concluded that nature of decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards. Also, its a PROSPECTIVE decision, which courts dont really engage in.(ii)The nature of the statutory scheme: Suggests need for strong procedural safeguards. Under s 53(1)(b), there is no provision for a hearing, no requirement for written or oral reasons, NO RIGHT OF APPEAL. As stated in Baker, greater procedural protections will be required when no appeal procedure is provided in the statute, or when the decision is determinative of the issue and further requests cannot be submitted(iii)Importance of the right affected: Appellants interest in remaining in Canada is highly significant (i.e. risk of torture he may face in Sri Lanka). This factor militates in favour of heightened procedural protections under s 53(1)(b).(iv )Legitimate expectations: Being a signatory to the Convention Against Torture indicates an intention that they will abide by it.(v)Choice of procedures made by agency: Minister is free under the terms of the statute to choose whatever procedures she wishes in making a s 53(1)(b) decision. Minister must be allowed considerable discretion in evaluating future risk and security concerns. *Need for deference must be reconciled with the elevated level of procedural fairness mandated by the serious situation of refugees.On balance, Court held that procedural requirements given to Suresh were insufficient (3 strong factors weighing in favour of strong procedural fairnessHELD(i) Procedural fairness requires that a person facing torture or a similar abuse must be informed of the case to be meet and a chance to respond and challenge the validity of the information that the Minister is using to base his decision on. (ii) The exception is privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents.(iv) ALSO, fundamental justice requires (remember, this is a Charter decision) that an opportunity to be heard existed fundamental justice requires that written submissions be accepted from the subjectAFTERthe subject has been provided with an opportunity to examine the material used against them.COMMENT:Note that the Minister suggested there was evidence that S wouldnt be tortured upon return to Sri Lanka. S and his counsel disagreed with this, yet it wasnt disclosed.In determining the content of procedural fairness, context is everything. InAhani v Canada(Minister of Citizenship and Immigration),the S.C.C. concluded that Ahani, who was also to be deported and was not given a copy of the memorandum provided to the Minister, was given a full opportunity to respond to the Ministers case against him. Unlike Suresh, Ahani had not established a prima facie case that he faced torture if deported.The S.C.C. returned to the question of disclosure in the national security context inCharkaoui v Canada(Minister of Citizenship and Immigration):Charkaoui v Canada (Minister of Citizenship and Immigration) (Security certificate involves a serious interest engaged similar to those involved in criminal law; thus, duty to disclose all information via infringement of s 7, except for privileged information)FACTS:C applied for a stay of proceedings relating to the security certificate issued against him under s 77 of the Immigration and Refugee Protection Act. He alleged that the government breached a duty to disclose info in its possession in a timely way. The process of this is that the Minter has the ability to sign a certificate declaring that a foreign national/permanent resident is inadmissible to enter or remain in Canada on grounds of necessity, then a judge determines whether this is reasonable. If the reviewing judge determines that the certificate is reasonable, there is no appeal/JR. Charkaoui had been arrested and detained but not received reasons as to whether his certificate was reasonableANALYSIS:Distinguishing criminal context from security certificate context:In criminal law context, disclosure encompasses all relevant information (Stinchcombe). In general, this principle wont be applied in administrative law context. But where you have a case where the type of interest engaged is as serious as criminal law (e.g., there is a finding of guilt), then full disclosure is required, on the basis of s 7 of the CharterHELD The destruction of operational notes is a breach of CSISs duty to retain and disclose information. *This conclusion flows from the serious consequences the investigation will have for thelife, liberty and securityof the named person. The designated judge then provides non-privileged information to the named person.COMMENT:Court also made a statement about privilege. The basis for the privilege is those things which would be injurious to national security (comes from the Act). In the end, what was required was full disclosure of everything to the Judge (not Minister), who would disclose as much as the documents as reasonably possible without being injurious to national security.Pritchard v Ontario (Human Rights Commission) (Privilege is an EXCEPTION to the disclosure requirement): FACTS:P was employed, harassed in work place, complained to Human Rights Commission, Commission didnt process complaint. P wanted to challenge decision, and argued that P was entitled to all documentation Commission possessed, including in house counsels legal opinion.ISSUE:Whether the duty of fairness could compel production of a legal opinion.HELD The privilege, if established, is considerably broad and all-encompassing. The privilege is jealously guarded and should only be set aside in the most unusual circumstances.Procedural fairness doesnt require the disclosure of privileged legal opinion. Procedural fairness is required both in the trial process and in the admin law context; in neither area, does it affect solicitor client privilege.Legislation, which can oust the privilege b/c the privilege is a common law doctrine, will be interpreted restrictively. Solicitor-client privilege cannot be abrogated by inference.Markwart:FACTS:Appellants owner of apartment building. Building inspected and failed tests, and was ordered to be demolished. Appellants appealed the order pursuant to the Cities Act.ISSUE:Disclosure of report which was the basis of Councils decisionHELD Although appellants aware of issues given in meetings, it doesnt follow that they knew the case they had to meet. They ought to have received a copy of the report on which the Council based its decision.The appellants could not properly respond w/out knowing how the case was presented to Council by inspector(i.e. the report may/may not have been represented in the meetings). Court held they ought to have had disclosure [Note: what is the difference b/w this case and those in which there were opportunities to have discussion which constituted sufficient grounds for knowing the case to meet?]CPR v Vancouver(Where relevance of documents is tenuous, then likely pre-hearing disclosure not a requirement)CPR claims that the City failed to disclose information to it, violating the Citys duty to treat CPR fairly.Court said Citys disclosure met this standard (of disclosing materials prior to hearing). The statute conferredbroad planning powerson the Cityw/out procedural requirements, yet the City chose to hold a public hearing, and gave CPR sufficient disclosure to allow it to participate in the process.CPR claimed that written submissions to City Council from public were not made available to it.Court held that these were made available through the City Clerks office.CPR complained that the City failed to disclose documents related to an investigation by the BC Building. CPR said that this info would have helped them make a more powerful argument that the by-law was foreclosing options which drew public interest. Court held that the relevance of the documents were tenuous.RIGHT TO ORAL HEARINGAudi alteram partem, or the right to hear the other side, does not impart the strict rule that there must always be an oral hearingWhen is an Oral Hearing Required?Factors to determine if an oral hearing is necessary: Khan,Singh, and Suresh: where a serious issue as tocredibilitypresents itself Competing Values oral hearing with cross-exam vs. pure inquisitorial method; where complainants trauma in sexual harassment cases of having to face harasser Capacity of Individuals language barrier, illiteracy Impact on Individual more serious the impact more likely to argue for an oral hearing; complex matters may be better handled in an oral setting; Access to Information Nature of Matter & Kind of information that the decision will be based on if primarily based on technical information, medical reports etc it might be better to present it in writing. It might be harder to get this information across orally.Baker v Canada(No presumption of oral hearing):The court rejected Bakers argument that an oral hearing was required. Therefore and oral hearing will not always be required for procedural fairness There is no longer even a presumption of oral hearing She wanted to appear in person but the court determined written submissions were sufficient in this matter she was adequately heard.Singh et al v Minister of Employment and Immigration(Even in the face of clear statutory direction as to how procedure is to be conducted, the decision to deny a party the right to oral hearing where there is aCharterright at stake, in addition to their credibility being at issue, a right to an oral hearing invariably will follow):FACTS:7 claimants had no opportunity to present their cases in oral hearings before either the decision maker at first instance or the Immigration Appeal Board on appeal.The statutory scheme provided for the possibility of an oral hearing, but only before the IAB on appeal, and only if the IAB concluded that there were reasonable grounds to believe that the claimant could make a successful claim at an oral hearing. The appellants allege that the procedural mechanisms in the Act deny them of their rights under the Charter.Procedural process:Senior immigration officers examines under oath Transcript sent to parties Refugee Status Advisory Committee uses transcript and own info to decide Advise in writing Claimant has right to lawyer.ISSUE:Whether the procedures of the Immigration Act for adjudicating claims of persons claiming refugee status deny claimants rights to which entitled under s 7.ANALYSIS:Wilson J found that this authority (to determine the probability of success under s 71) is one that Parliament clearly conferred upon the Board and is sound. The procedures set out in s 71 were followed correctly in this case. Thus, if the appellants are to succeed, they must succeed on the basis of Charter requirements [Note the conventional wisdom that resort to Charter should be reserved for cases where ordinary statutory interpretation cannot provide remedy].Application ofCharter:(i) Section 7 requires that 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(ii) Everyone encompasses everyone physically in Canada(iii) Do the appellants fall within the scope of s. 7? Must first determine what rights appellants have under the Act. One of these includes right not to be returned to a country where his life or freedom would be threatened. Security of the person must encompass freedom from threat of physical punishment or suffering as well as freedom from such punishment itself. Thus, there is a deprivation of security of person(iv) *** Isfundamental justicedenied by the procedures?Counsels agreed that at a minimum the concept of fundamental justice includes the notion of procedural fairness. So, do the procedures set out in the Act for the adjudication of refugee status meet this test of procedural fairness (i.e. do they provide an adequate opportunity for a claimant to state his case and know the case he has to meet)? **Where interests unders 7are at stake, which are of such importance, an oral hearing will INVARIABLY be required, particularly where credibility of the party is at issue.Also, where credibility is at stake, as it almost always is in refugee cases, its difficult to conceive of a situation where the claimant would not be entitled to prior discovery of the Ministers case and an oral hearing.DELAYIn all of these cases, there is potential for the individual complained of to suffer prejudice from his peers, family, and colleague the longer the proceedings are delayed.Blencoe v British Columbia (Human Rights Commission) (The framework for analysing DELAY and specific factors):FACTS:B, Minister, has allegations made of sexual harassment against him, and complainants filed complaint with human rights commission. Hearing was scheduled to be held over30 monthsafter initial complaint made. In meantime, B lost Cabinet position, did not stand for re-election, and suffered depression. B made application for hearing to be stayed, claiming human rights commission had lost jurisdiction b/c of unreasonable delay. CoA directed that proceeding be stayed. Human Rights Commission appealed.ANALYSIS (Majority Judgment):Framework for Analysing Delay:Generally, for delay to be a denial of procedural fairness, the prejudice will involvecircumstances related to the hearingitselfand, thus, will be anabuse of process(i.e. delay causes failure to bring all evidence forward).But delay that affectspersonal factorsmay be sufficient to be a denial of procedural fairness (i.e. to make a full answer and defence)IF the delay is a direct cause of significant psychological harm to an extent that brings the proceeding into disrepute (this will beunacceptable/inordinate delay).In order to find anabuseof process,the court must find that the damage to the public interest in the fairness of the admin process, should the proceeding go ahead, would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted[really high threshold].***Factors for Analysing Delay (Contextual Analysis)***:Stress and stigma resulting from delay may contribute to abuse, but in this case the delay was not inordinate. The determination of when a delay is inordinate depends on:1. the purpose and nature of the proceedings2. which individual rights are impacted3. what the community thinks about it4. whether the respondent contributed to the delay or waived the delay (the causes of the delay).Not based on length alone. Must look at contextual factors, including the nature of the various rights at stake in the proceedings. The overarching issue is whether the community sense of fairness is offended by the delay.In present case, communication b/w parties was ongoing. Further,the delay must have caused prejudice of such a magnitude that the publics sense of decency and fairness is affected. B and his family suffered obvious prejudice, but such prejudice may not have resulted directly from the delay.ANALYSIS (Dissenting Judgment In Part) (Abusive delay is wrong, whether it affects hearing or not): Assessing unreasonable delay: Unreasonable delays must be identified within the specific circumstances of every case:(a)not all delay is the same(b) not all administrative bodies are the same.Three main factors to be balanced in assessing the reasonableness of admin delay:1. The nature of the case; how complex the factual and legal intricacies of the case are and how much time is needed for procedural safeguards of the individuals involved2. The cause of the delay3. The impact of the delayApplication of these factors:(1)Complexity of case low (B made sexual overtures, no direct witnesses, not much evidence); so, the inherent time requirements were minimal, but the time taken was not minimal. Further, the Commission failed to keep those affected by its decision up to date(2)B was not responsible for the inefficiency of the Commission, and B even took steps to mitigate against further delay (i.e. offered to forego the investigative stage of the complaints)(3)Bs career finished, moved twice to make new life, depressed, stigmatized. Moreover, the delay affected the complainants in their desire for a quick dispositionAdministrative remedies available: The delay entitles B to some kind of remedy. Remedy must take into account interests of respondent, plaintiffs and the public interest which wants basic rights enforced efficiently, but fairly. The 3 possible remedies are: stay of proceedings, orders for an expedited hearing and costs.Stay of proceedings: Heavy burden to succeed (gross abuse of process or compromise of fairness of hearing), and it also affects the interest of the complainants who lose opportunity to have their complaints heard.Expedited hearing: Approach of courts should change when it appears that the hearing will remain fair, in spite of the delay and when delay has not risen to the level of shocking abuse. In this context, a more narrow remedy, such as this one is effective. This may safeguard the rights of all affected.Costs:Will not address the delay directly, but some of its consequences. Whenever parties are compelled to seek judicial interventions to safeguard their rights, costs must be considered to compensate at least in part the time, money and efforts expended.Appropriate remedy:An order for an expedited hearing should have been remedy of choice. Also, in spite of partial success of appeal (as stay should be lifted), B is entitled to some compensation in the form of costsCOMMENT:What did the 2 judges agree on?(1) Having a very high threshold for proving that a stay of proceedings should be granted;(2) Delay can be unacceptable or inordinate based on the procedural prejudices arising out of the structure of the inquiry or based on psychological prejudices felt by the person involved in the inquiry;(3) Factors used to determine unreasonable delay areessentiallythe sameI (A) v Ontario (Director, Child & Family Services) (Engage in a contextual analysis of the delay, e.g., purpose of delay important, and its not just about the length of delay):FACTS:Foster parents cared for child for first 13 months after birth. They were asked to adopt, but they refused. But then foster parents, the day before permanent placement, notified Childrens Aid that process needed to stop. Child taken from Foster parents home. They complained to Childrens Aid (HCAS) and were referred to external review process inJan 04.InFeb 04,foster parents requested a Directors review of decision to have child with them. Hearing inJune 04, Foster parent called evidence that moving child would cause harm. Director proposed assessment was needed, which was completed inOctober 04. HCAS called rebuttal evidence. Hearing re-convened, then Director offered adjournment to Foster parents to consider such evidence, but they wanted to proceed with hearing. Director found HCAS evidence persuasive and confirmed decision to place child with adoptive parents inDec 04. Foster parents brought application for judicial review, alleging, inter alia, delayANALYSIS:Delayb/w child taken away and decision was1 year. Some things that caused the delay included waiting on the psychiatrist report of the foster parents, and then a report from the adoptive parents psychologist.Court concluded that this elapsed time seems scandalous(a 13 old child having to wait 1 year prior to finally ending up in a home) [Remember, analysing delay is context driven. InBlencoe,there was a longer delay, yet it wasnt deemed scandalous]Relevant contextual factors in deciding when long is too long:(1)Analyse Statute: In this case, indication that there is short periods of time for decisions to be made (i.e. quickdecisions were required generally, even though the Statute was silent on this matter). Although with respect tothis matter, there was no mention of time limit.(2)Cause of delay: Look at the causes of each delay. Here, the biggest delay was the wait for the report from thechild psychologist(3)Purpose of info?: But then you can look beyond that and ask, what was the purpose of the info on which thedelay arose? In this case, to look at the best interests of the child.HELD Court suggests that indication that this delay was too long (Statute). As long as reasons for delay were in accordance withpurpose of the statute (which is protecting the childs best interests), procedural unfairness wont arise.Issues of DELAY resulted in the quashing of an administrative decision inWatson v Saskatchewan (Police Commission):Watson v Saskatchewan (Police Commission):FACTS:W, while on duty, was involved in an apprehension of a person with mental problems, and was placed on desk duty after he allegedly neglected his duty and made a false/misleading entry in an official document. A hearing was held in Feb andMarch 2002. Decision was rendered against W, resulting in discipline of reprimand, suspension and one year term of probation imposed inMarch 2003.W filed notice to appeal, and received no response.A year later, W filed a Notice of Application to Quash Conviction and Determine Appeal under the Police Act. Again, the Commission didnt respond.Grounds of appeal: The Commission has an obligation to act fairly and reasonably to the applicant, requiring to act without delay; The delay in this matter has been unreasonable and in violation of principles of natural justice; The applicant has not participated in or condoned the delay; The Applicant has suffered serious prejudice, including restrictions on the advancement of employment, he had been assigned desk duty and no longer patrol sergeant, he has to work under the mentality that everyone knows he is under a disciplinary order, he suffered stress disorders etcANALYSIS:Was thereinordinate delaythat caused actual prejudice of such a magnitude that the publics sense of decency and fairness is affected and would bring the administrative process into disrepute and so constitute an abuse of process? This must be viewed in the context of the caseLegislature has placed this matter of discipline in the jurisdiction of the Chief of Police. If a penalty is imposed, there is a possibility of an appeal through leave, but there is no right of appeal. Through the enactment of the Police Act and the Municipal Police Discipline Regulations, the possibility of appeal was created. This is a matter for the Commission, the discretion of which must be exercised in accordance with principles of natural justice [Note, maybe the judge got this wrong, given the possibility of a writ of mandamus]. The discretion cannot be forced, but how long must W wait?Court engaged in a clear look at all the things that can be considered, e.g., personal impact (lost money, job duties, stigma attached); the policy changed which made what he did best practice (so what he did wasnt that bad);The key question is does the above constitute inordinate delay that has caused actual prejudice of such a magnitude that the publics sense of decency and fairness is affected and would bring the administrative process into disrepute and so constitute an abuse of process? This must be viewed in the context of the factors in the case.HELD In this case, there was a negative impact on personal rights, and negative impact on the public interest over all. *Balancing the rights of public interest in having these matters finally adjudicated in accordance with the legislative scheme/maintaining police discipline, and the rights of the individual to be dealt with in accordance w/ principles of natural justice, the balance tips in favour of the individual. The machinery prescribed by legislation in this case is dysfunctional.OTHER PARTICIPATORY REQUIREMENTS: Counsel, Written Submissions, Requirement of ReasonsFairness may also demand various measures to ensure effective participation, including right toadjournments, lawyers, interpreters, adequate time to prepareetc. TheBakerfactors guide whether the particular factual circumstances require any particular procedure to allow for effective participation.COUNSELThe right to counsel is usually assumed or provided by statute. But, there is no presumption in favour of a right to counsel:1. Costs if one party wants counsel, then everyone deserves it Length of Proceedings/efficiency concerns: Makes the proceedings more complex and adversarialMarkwart v Prince Albert (City)(The City should have adjourned the matter for a reasonable period of time in order for appellant to get counsel, given the serious potential for injury):FACTS:Appellants owner of apartment building. Building inspected and failed tests, and was ordered to be demolished. Appellants appealed the order pursuant to the Cities Act. On the day of the appeal, applicants filed letter requesting adjournment b/c their legal counsel was unable to attend. Council passed resolutions which denied the appeal. Appellants applied to Queens Bench Chambers for relief. The appeal was denied. They now appeal their order for dismissing their application for judicial review and order dismissing appeal.ANALYSIS:(1)Bakerfactors: Importance of decision focussed on here. The City proposing to demolish building owned by appellants is tantamount to expropriation w/out compensation. These circumstances require STRICT compliance w/ rules and duty of fairness.(2)Failure to provide reasons: City conceded that duty of fairness required consisted, in part, of duty to provide reasons for denying the appeal. The memorandum of the inspector was obtained by the appellants which is sufficient to comply with duty to provide reasons (see Baker where notes of immigration officer were sufficient)(3) Denial of request for adjournment, due to lack of counsel:Appellants were given an opportunity to be heard, but was the case presented in the best light (i.e. could Counsel have helped argue the case better)? First, the events took place in a short period of time with short notice (given seriousness of matter). The City could have adjourned the matter for a reasonable period of time in order to wait for counsel. The Council gave no reasons to justify its denial. Thus, the effect was to deny the appellants a fair opportunity to present their caseDecision to grant refusal is discretionary, but serious potential for injury is relevant consideration.Ha v Canada (Minister of Citizenship and Immigration) (Complexity of factors, such as lots of legal issues, suggests right to counsel; also, see application ofBakerfactors):FACTS:Three sisters, citizens of Cambodia, applied to settle in Canada has Convention refugees seeking resettlement (CRSRs). Applications denied, and following judicial review, were sent back for re-determination. Their lawyer requested to be present at 2ndinterview. Visa officer, citing policy memorandum, denied request. Applicants applied for judicial review, claiming that the decision to exclude their lawyer breached procedural fairness.ANALYSIS:(i) Duty of fairness is context dependent; the content of the duty must be determined on the individual facts of the case. Court cites authority saying that when aduty of fairness may require a lawyer to be present, noting Decision makers who deny representation to counsel in circumstances which the court later rules are sufficiently complex so as to require counsel, or in which there is a sufficiently difficult question of law that prevents party from adequately presenting case, will be reviewable by natural justice(ii) Content of the duty:1. Nature of decision: Visa officer must determine whether the applicants meet the legal requirements set out in the Act and Regulations, which does not involve considerable discration. Second, the decision also has big legal element and legal question. During the interview, the officer asked questions of a legal character (the interview was more than about established facts, it also involved consideration of legal issues). These factors lean toward the right to counsel. In the past, in addressing right to counsel issue, courts primarily considered whether questions were of legal or complex nature (see Laroche and Beirsdorfer). Further, by not being present, the counsel will be unable to address important issues in his written submissions. Third, the appellants interview cannot be classified as taking place at a preliminary stage in the process and, therefore, the Dehghani v Canada decision that the principles of fundamental justice did not include the right to counsel at such a stage is distinguishable (i.e. Dehghani was later entitled to a full inquiry at which counsel could be present).2. Nature of Statutory Scheme: First, there is no right of appeal from the Officers decision (simply b/c applicants can reapply for visa should not lower content of duty b/c of higher scrutiny of further applications). Second, simply b/c officers not obliged to interview all applicants doesnt diminish the procedural protections that they owe to those they do interview (once they interview, they must do so in accordance w/ duty of fairness).3. Importance of decision: Visa officers decision is of great significant, given application for permanent residence. The stability of the applicants in their home was not clear.4. Legitimate expectations: Visa officer wrote to counsel stating that counsel are never allowed at interviews. This is inaccurate statement of law, as visa officers must determine cases based on their facts. Thus, as a result of a general statement that counsel cannot attend interviews, the appellants may have assumed that it would be futile to attempt to ask the visa officer to reconsider his decision.5. The choice of procedure made by the agency: The Court must guard against imposing a level of procedural formality that would unduly encumber efficient administration. But in this case, counsel are only asking that counsel observe proceedings. This would not unduly encumber efficient administration.HELD Applicants should have been allowed counsel present. Thus, the case must be sent back to a different visa officer to hold another interview and reconsider the applicants cases.Comment:This decision highlights three issues disclosure (ability of counsel to be at interview to note the relevant points the admin body will use against her or his client); right of counsel in admin proceedings and the application of Baker factors.REMEDY: Because the appellants were denied their right to procedural fairness during the interview, the case must be sent back to a different visa officer to hold another interview and reconsider the appellants case.RIGHT TO MAKE SUBMISSIONSEssential purpose of the right to be heard is to put your own info to the admin body (note, however, that it is likely that if there is loads of info you want to submit, only the clearly relevant material could be expected to be taken)Edmonton Police Assn v Edmonton (City) (Right to take into account written submissions):FACTS:Appellant diagnosed w/ anxiety disorder. He received benefits from the City pursuant to a collective agreement. A majority of a medical review panel cut off benefits. Judicial review denied. He appealed on ground that he was denied procedural fairness before the panel. Main complaint was that his written submissions were not placed before or considered by the panel.ANALYSIS:Berger J.A.: The Constable was entitled to a high standard of procedural fairness: the panels decision is final and binding, and its role is adjudicative; the decision clearly impacts on the members welfare and livelihood On judicial review, and re: procedural fairness, Court is to determine the SCOPE of tribunals duty and see whether tribunal adhered to it. So, this is where you look at Baker:1. Nature of Decision and decision making process employed: final decision; role is adjudicative2. Nature of stat scheme: its a final decision3. Importance of decision to individual affected: Decision that directly impacts the members livelihood4. Legitimate expectations of party challenging the decision: anticipation of high standard of fairness5. Nature of deference accorded the body: Didnt go into detailThe right to be heard requires a tribunal to give a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their views.The appellant provided documents to the Director of Disability Management for the City to be put before the panel. That didnt happen, and the appellant was not told that the panel didnt receive this info. The panel may have taken different steps had they been aware of the documentSlatter J.A. (concurring): If there is no substantial wrong or miscarriage of justice from the procedural error, the error would likely be a technical irregularity, meaning that the decision isnt necessarily void.REMEDY:Appeal allowed. The medical review panels decision is quashed and the matter remitted to a newly constituted medical review panel for considerationDUTY TO PROVIDE REASONSWhy would party want reasons part and parcel to the duty of fairness?(1) Fair and transparent decision making(2) Reduces the chance of arbitrary or capricious decisions and(3) Cultivates the confidence of citizens in public officials (Congregation des temoins)(4) If you dont know why a decision maker decided, then it will be difficult to appeal decisionIn 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, like: where the decision has important significance for the individual, when there is a statutory right of appeal, any other significant circumstances that call for reasons (Baker)Congregation des temoins de Jehovah de St-Jerome-Lafontaine v Lafontaine (Requirement of reasons):FACTS:The Congregation requested a zoning variance from the Municipality on 3 occasions. First one, they denied, and gave reasons. The problem lies within the response to the 2ndand 3rdapplications (see bellow).ANALYSIS: Whether the Municipality of the village of Lafontaine lawfully denied an application for rezoning to permit the Congregation to build a place of worship; specifically, does the duty of fairness require the Municipality to give the Congregation reasons for refusing the rezoning the application? Baker analysis follows.(1) Nature of the decision: Decision is made by an elected council accountable to its constituents. The Municipality must act in the public interest. What is in thepublic interestis in the discretion of the Municipality. Provided they act honestly and w/in the limits of statutory powers, the court should not interfere.But the Municipality cannot deny an application in an arbitrary way.(2) Statutory Scheme and its Provisions: In this case, the Act respecting Land Use and Planning Development grants Municipality authority to consider rezoning applications. *The absence of an appeal provision demands greater protections.(3) Importance of Decision on Interested Party: *The stringency of procedural protections is directly proportional to the importance of the decision. Here, the decision affects the Congregations practice of its religion, which is of primary importance and protected under the Charter.(4) Legitimate Expectations of the Interested Party:Where prior conduct creates for the claimant a legitimate expectation that certain procedures will be followed as a matter of course, fairness may require consistency. *Here, Municipality followed an involved process in responding to the Congregations first rezoning application, in doing so giving rise to Congregations legitimate expectation that future applications would be carefully considered.(5) The Nature of Defence Due to the Decision Maker: Municipal decisions on rezoning fall w/in the sphere where Municipalities have expertise beyond the judiciary. But this doesnt carry much weight where there is no record to indicate that the Municipality has actually engaged its expertise in evaluating the applications.2ndZoning Application:Congregation applied for rezoning a new lot. Municipality denied request summarily, without giving reasons. They noted that there were P-3 lots available, but didnt direct C to them. Had C merely reapplied for the first lot, reasons may not have been expected. The findings of the first study that analysed the impact of rezoning on the first lot werent applicable to the 2ndlot (i.e. tax impact).New evaluation was required, together with an explanation.3rdZoning Application: This request related to the same lot subject of second request. C provided letters with its fruitless attempt to find P-3 zoning. M denied application again, offering no reasons. This time didnt even tell that P-3 land was available. *M argued that since Legislature conferred discretion upon it, it was not required to offer any justification for refusing application.HELD M breached the duty of procedural fairness it owed to C a duty heighted by the expectations established by the Municipalities own conduct and the importance of the decision.M acted in a manner that was arbitrary. Cs applications were in good faith on the advice received from the municipal inspector following the first application.C offered evidence of goof faith searches for P-3 land evidence M didnt bother to comment on.REMEDIES1. If X successfully challenges the decision on procedural fairness grounds, first must question whether the challenge was on appeal or through judicial review E.g. where appellant was denied procedural fairness due to lack of counsel, the case was sent back to a different decision maker to hold another interview and reconsider the appellants case (Ha) Certiorari (on JR) Allow appeal (if statutory right of appeal) and set aside, for example, the resolutions made and remit the matter back to the board (E.g. Markwart) Costs (party to party or solicitor client)PROCEDURAL FAIRNESS:BIAS, IMPARTIALITY AND INDEPENDENCEFive types of bias:(1) The decision maker has a financial interest in the outcome;(2) The decision maker has a personal relationship with one or more of the parties (e.g. being affiliated with one of the parties associations of family, friends or professional connection)(3) The decision maker has previous knowledge of or involvement in the matter to be decided;(4) The words or actions of the decision maker suggest a prejudice or partiality (ACTUAL BIAS)(5) The institutional arrangements prevent an impartial rendering of decisionsRemedies:Bias or lack of independence will result in the quashing of the decision and remitting it back to a different decision maker (who is equally qualified)IMPARTIALITY AND BIASPeople when making decisions are influenced by all kinds of things and experiences in their life. There are only certain things about which we are worried which might affect their impartiality.Actual BiasNewfoundland Telephone Co. v Newfoundland(Spectrum of neutrality; Test for reasonable apprehension of bias; Pre hearing vs At hearing/Post hearing bias):FACTS:Public Utilities Act gives the Board the power to regulate NTC. The commissioners of the board are appointed by the Lieutenant Governor in Council. The Statute says that commissioners cannot be employed by, or have any interest in, a public utility. Andy Wells was appointed as commissioner to the board. Earlier, Wells had acted as an advocate for consumers rights, and admitted that he wanted to play an adversarial role on the board champion consumer rights.The board commissioned an accounting firm to provide cost analysis of NTC, and in light of report of the Board, and decided to hold a public hearing. Prior to hearing, Wells had described the pay/benefits of NTCs executives as ludicrous/unconscionable.The Boards decision on August 3 (i) disallowed the cost of the enhanced pension plan for certain senior executive officers and (ii) directed the appellant to refund its customers in the former operating territory sums which were charged as expenses to the appellants operating account to cover the cost of the enhanced pension plan (iii) and made no order re: individual