Administrative Law

Chapter 8

The Reach of Procedural Fairness Rights Minh Tran

April 2009

Administrative Law

Concerned with: Regulation of governmental power in the

state's relations with individuals Exercise of statutorily authorized powers by

designated actors Law governing the implementation of public

programs, especially at the point of delivery (where they have most immediate impact on people)

Administrative Law

Not concerned with: Regulations used to implement particular

programs or policies; i.e., substantive law.

Scope of Administrative Law:

Municipalities, Human Rights, Immigration Regulation and licensing of economic activities and

industries, e.g. natural resources, telecommunications, liquor…

Labour relations, e.g. collective bargaining Income redistribution programs, e.g. welfare, pensions, Social control, e.g. parole board, prison discipline Professions and trades, e.g. law societies Commissions of inquiry

Administrative law is a set of principles and concepts common to all these different areas of law

Sources of Procedural Claims

I. The Charter and Principles of Fundamental Justice

The clearest source of constitutional protection for procedural claims in Canada is found in section 7 of the Charter

However, section 1 allows the government to infringe upon a Charter right, if there are demonstrably justifiable reasons in a free and democratic society.

Sources of Procedural Claims

II. Canadian Bill of Rights

Section 1(a): due process guarantee when “life, liberty, security of the person and enjoyment of property” are at stake.

Section 2(e): “the right to a fair hearing in accordance with the principles of fundamental justice” when a persons rights and obligations are being determined.

Legislation that Specifically Addresses Procedural Rights

Most provinces do NOT have any specific legislation in place related to procedures to be followed in administrative decision making.

The exception is Alberta, Quebec and Ontario.

Alberta

Administrative Procedures Act: This Act only applies if it has been

specifically incorporated into primary legislation or has been promulgated by an order of the Lieutenant Governor in Council

This Act is far less detailed than Ontario’s Act.

Quebec

Charter of Human Rights and Freedoms Procedural Guarantee: “full and equal public

hearing” whenever a judicial or quasi-judicial body is determining “rights and obligations”.

Administrative Justice Act Applies to Government departments and other

statutory authorities. The Act prescribed a general duty to act fairly

and provides for specific procedural protections.

OntarioStatutory Powers Procedure Act (SPPA) The Act has very detailed procedural protections. However, there are many situations to which this Act

does not apply – it is not a far reaching Act.

Application of Act Section 3.(1): Subject to subsection (2), this Act applies

to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.

Ontario SPPA Cont.

Where Act does not applySection 3(2):  This Act does not apply to a proceeding,

(a) before the Assembly or any committee of the Assembly;(b) in or before,

(i) Court of Appeal; (ii) Superior Court of Justice; (iii) Ontario Court of Justice, (iv) Family Court; (v) Small Claims Court, or (vi) a justice of the peace;(c) to which the Rules of Civil Procedure apply;(d) before an arbitrator to which the Arbitrations Act or the Labour Relations Act applies;(e) at a coroner’s inquest;(f) of a commission appointed under the Public Inquiries Act;(g) of one or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make; or(h) of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned.

WaiverSection 4.(1): Any procedural requirement of this Act, or of another Act or a regulation that applies to a

proceeding, may be waived with the consent of the parties and the tribunal.

Procedures in the Relevant Legislation

Sometimes the legislation that governs the decision making body or the decision that needs to be made, contains specific procedural requirements. This is another important source of procedural obligations.

However, there are some qualifications on this: Are the provisions in the legislation a complete code? Does the legislation exclude the possibility that the

procedures could be supplement by common law principles?

Could the procedures (or lack thereof) prescribed in the legislation be challenged on the basis that they are inadequate or that they violate constitutional standards?

The Common Law

Historical Canadian Administrative Law:

Cooper v. Board of Works for Wandsworth District Took a very pragmatic approach to whether or not a hearing had to

be held. Looked at factors such as the nature of the interests at stake, the

impact of the decision upon that interests, sanction to be imposed and the costs and benefits of holding a trial.

Judicial v. Administrative: For many years the essential test for assessing whether or not a

hearing was required was based on the distinction between judicial or quasi-judicial bodies, on the one hand, and purely administrative bodies on the other.

This was a very difficult distinction to apply in practice, and the courts never provided clear direction as to what constituted judicial or administrative bodies.

The Common Law

Modern Canadian Administrative Law Has returned to the functional base that characterized Cooper.

Key cases:

Nicholson Minister of National Revenue v. Coppers & Lybrand Knight Canadian Association of Regulated Importers v. Canada Re Webb Baker

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police

Facts: Nicholson was fired from his job as police officer while he was still on probation as a new employee (less than 18 months).

- The relevant legislation provided that police officers are entitled to a hearing before being dismissed, unless they are still in their 18-month probation period.

Legal Principles: Distinction between judicial and administrative functions

should no longer determine procedural claims Duty to act fairly could apply to purely administrate functions

as well. Decision: Nicholson was entitled to an opportunity (whether

orally or in writing) to respond to criticisms of his performance before he was dismissed.

Minister of National Revenue v. Coppers & Lybrand There may be some cases where the distinction between

judicial, quasi-judicial and administrative functions will matter.

Case provides a list of non-exhaustive factors that if answered in the positive, indicate a judicial or quasi-judicial function. Example of the factors include:

Is the issue at stake one that requires the application of specific rules to a particular case (as opposed to one of broader social or economic policy)?

Does the decision affect the rights and obligations of the applicant?

Other Important Principles Emerging from Case Law:

**Legislative action does NOT give rise to an obligation of procedural fairness. (knight)**

Other Important Principles Emerging from Case Law:

**Procedural fairness claims will not generally apply to broad, policy-based decision-making, which affects a range of constituencies.**

However, note that courts have had difficulty with the drawing the line between broad policy-based decisions and more narrow individualized decisions

Canadian Association of Regulated Importers v. Canada

Facts: Minister changed the allocation of import quota for hatching eggs and chickens-the importers said that they should have been given notice of this change and the

opportunity to respond…

Trial Court: NOT a legislative decision = procedural fairness obligations

Court of Appeal: changing quota policy was a legislative or policy decision = no procedural fairness obligations exist

Take Away Point: There is still a great deal of uncertainty and clarification from the Supreme Court of Canada is needed!

Other Important Principles Emerging from Case Law:

**High standard of justice is required when the right to continue in one’s profession or employment is at stake. (Knight)**

Other Important Principles Emerging from Case Law:

**Those applying for licenses and various other forms of government benefits are often not entitled to procedural fairness. However, once the benefit has been granted and is at risk of being taken away, then procedural fairness benefits may apply. (Re Webb)**

Other Important Principles Emerging from Case Law:

**The relevant inquiry is focused on the individual circumstances of the case at hand (Baker)**

The Content of Procedural Fairness

Once it has been determined that a duty of procedural fairness is owed, it then needs to be determined what the duty entails

Court take a very context-sensitive approach…

Content of Duty of Fairness

The closer a decision-making function is to the legislative end of the spectrum, the fewer the procedural fairness obligations will be. (Nicholson)

Content of Duty

Courts recognize that certain interests require greater procedural protections than others.

For example:Nicholson: probationary police officer = minimal

procedural rights (due to his limited status)Julius Kane: tenured professor = higher level of

procedural protectionBaker = resisting removal from Canada = more

than minimal procedural rights.

Non-Exhaustive List of Factors from Baker

1) The nature of the decision o Judicial type of decision and process = greater

procedural protectionso Closer to a legislative decision = fewer procedural

protections

2) The nature of the statutory scheme and the statutory provisions under which the administrative body operates

Non-Exhaustive List of Factors from Baker

3) The importance of the decision to the individual or people affected

4) Did the challenger have legitimate expectations regarding procedure based promises, practices or representations of the decision-maker?

o if a LE is found to exist then this will affect the content of the DOF

o LE is based on conduct of parties and is particular to the circs

The END!!!

Thank you