IS THERE A DUTY OF FAIRNESS?

(NOTE: SHOULD BE BRIEF)

1. Look to Statute for Procedural Rights
In looking for a duty of procedural fairness, one must first look to the enabling statute to determine whether
there are any provisions for procedural rights
o Are there any provisions for procedural rights?
o Is there a provision for hearing? explicitly via SPPA or implied (hearing must be held)?
Does it trigger the SPPA?
Ontario statute yes, provided it is not within exceptions under s.3(2)
Federal statute no
If SPPA silent, look to common law for hearing requirements
If SPPA is explicitly excluded (SPPA does not apply), look to common law for procedural
requirements
2. Look to Common Law for Procedural Rights
In looking for the duty of procedural fairness, one must also look to the common law to determine whether
there are any guarantees for procedural protection
o Is it a decision by a statutory decision-making body?
o Does the decision affect the rights, interests and privilege of the individual?
Procedural fairness rights will attach whenever the rights, privileges or interests of an individual
are impacted by a public decision-maker or statutory authority (Martineau v Matsqui)
Even applicants for a privilege may have duty of fairness (Hutfield)
o 3 Factors for Threshold of Duty of Fairness (Knight)
1. Nature of the Decision
Legislative or General no duty || Administrative or Specific yes duty
Legislative action, polycentrism (Canada v Inuit Tapirisat)
Issues of public policy (Canadian Assn of Regulated Importers)
Directed at specific individual, immediate effect (Homex Realty)
Analysis is substance, not form (Homex Realty)
Preliminary no duty || Final yes duty
Proximity Test where is the real decision being made? Recommendations as
vital to decision (Re Abel)
2. Relationship b/w Admin Body and Individual
Employment relationships:
Master-servant no duty
Holding office at pleasure or dismissible with cause yes duty
3. Effect of Decision must be significant to individuals rights, interests, privileges
o Legitimate Expectations
Must be clear, unambiguous past practice or express representation by public official (CUPE)
Cannot conflict with public official statutory authority (Mount Sinai)
o Constitutional Issues:
Where s.7 Life, Liberty and Security engaged principles of fundamental justice requires
procedural fairness (Singh)
No procedural rights in legislative enactment (Authorson)
Liberty cant extend to property or economic rights (i.e. right to work) may extend to right to
pursue a livelihood or profession b/c it involved sense of dignity and self-worth (Wilson)
Security may incl. psychol effects only serious, state-imposed psychological stress (Blencoe)

Conclusion: therefore, the decision does (not) pass the threshold for a duty of fairness to be owed
 LEVEL OF PROCEDURAL FAIRNESS OWED

To determine the level of fairness owed to the individual, the Supreme Court in Baker has set out 5 factors
that, while not exhaustive, will help to determine the amount of fairness owed.

BAKER FACTORS
1. Nature of the Decision
o Administrative (discretionary, polycentric) spectrum
o Judicial/Adjudicative (highly procedural, lots of process)
o If Legislature envisioned the tribunal to be closer to judicial model more fairness
o If intended to be discretionary administrative model less fairness
2. Nature of the Statutory Scheme and the Terms of the Statute
o Does decision-maker have discretion? Discretion in overall statutory scheme?
more discretion, more fairness
o Stage of the Decision final or preliminary?
Final decision more fairness
Preliminary decision less fairness
3. Seriousness and Importance of the Decision to the Individual
o the more serious and important the impact of the decision has on the individual, the more fairness owed
does it affect rights protected by the Charter or other constitutions?
4. Legitimate Expectations
Where there are legitimate expectations of substantive outcomes, more fairness required
Where there are legitimate expectations that certain standards will be used, more fairness
5. Choices of Procedure made by the Agency
o Where a statute gives agency the ability to choose its own procedures, less fairness owed
o Did the tribunal themselves design a procedure they thought was appropriate to make these decisions?
If tribunal turned their mind to what they thought was appropriate, less fairness
If tribunal left design of procedures wide open, more fairness is owed

Conclusion:
On a balancing of these factors, it indicates that there is a low/moderate/high level of fairness owed
 WHAT PROCEDURES ARE REQUIRED FOR FAIRNESS?

Overall Question Has the individual had an opportunity to fully and fairly present their case?

A. Audi alteram partem: to hear the other side and have your side heard

1. Pre-hearing: Notice
o Notice is necessary because w/out notice, the other rights cannot be exercised effectively or at all
o SPPA s.6: parties should be given reasonable notice of hearing
o Issues with Notice: (i) Form , (ii) Manner of Delivery, (iii) Timing, (iv) Content
o Content: must be as detailed as possible to give parties notice of case (Krever Commission)
o Timing: should be given ASAP but will depend on circumstances as long as there is sufficient time
for recipients to allow them to call evidence and make submission (Krever Commission)
o Delivery: confidentiality of notices may be required (i.e. protect reputation in Inquiry) (Krever)

2. Pre-hearing: Discovery (Pre-hearing disclosure)

o Disclosure to parties of relevant info before hearing is basic element of fundamental principles of
justice. Party is entitled to know what evidence and representations have been made in the case against
them
o Justice is better served when element of surprise is eliminated from trial R v Stinchecombe
o Extent of Discovery depends on the circumstances
Where issue is very serious full disclosure required (Ontario HRC v Ontario NG Hospital)
Where issue not as serious (i.e. regulatory tribunal) full disclosure not required (CIBA-Geigy)

3. In Hearing: Oral Hearing vs Written Hearing

o Natural justice will not always imply that oral hearing is required. In some cases, written submissions
may suffice. It will depend on the circumstances of each case.
o SPPA 5.1/5.2: gives tribunals flexibility to use written or electronic hearings
o Where a party is sufficiently aware of all the material allegations against him and is provided with
adequate opportunity to be heard, a full oral hearing is not required (Masters v Ontario)
o The claim to an oral hearing is highest when credibility is an issue (Khan v University)
o The claim to oral hearing will also depend on the importance of the issue (Khan v University), even in
cases of s.7 violations where written submission may suffice (Singh)

4. In Hearing: Right to Counsel

o Right to counsel is not a universal right, jurisprudence has place qualifications on its applicability
o SPPA s.10: permits representation by counsel or agent to parties in a proceeding
o Whether person had an adequate opportunity to effectively present his case w/out counsel (Howard)
o Test for Right to Counsel (New Brunswick v G(J))
1. Seriousness of Interests the more serious, the more likely the right to counsel
2. Complexity of the Proceedings
Short hearings w/ simple questions of fact and credibility counsel makes little difference
Long hearings w/ complicated evidentiary questions, troublesome points of law, multiple
experts counsel will be essential to ensure a fair hearing
3. Capacity of the Individual
Well-educated, familiar w/ legal system, above-avg comm. skills less need for counsel
 Little education, difficulty with communicating in court of law more need for counsel

5. In Hearing: Disclosure
o A party is entitled to know what evidence and representations have been given and is entitled to an
adequate opportunity to respond. Disclosure to the parties of information that the tribunal has about the
decision to be made is a basic element of natural justice and is usually required unless some competing
interest prevails.
o SPPA s.5.4: tribunals may make orders for disclosure
o Extent of disclosure is dependent on the ability for the party to provide an effective reply usually
should know what has been said against them and by whom (Re Napoli)
o Extent of disclosure will also depend on the seriousness of the issue (Charkaoui #2)
o Disclosure will be limited when there are competing issues of confidentiality, national security
interests, etc. however, a judge can filter the evidence to provide proper balance (Charkaoui #2)

6. In Hearing: Official Notice

o Official notice is the extent and manner in which an agency may, in making its decision, use material
that is not introduced in evidence the analogue to judicial notice in the courts
o SPPA s.16: tribunal may take official notice
o Test: will it affect the parties ability to demonstrate to the contrary?
o Balance between expertise of the tribunal vs the response of the parties
o Giving Only Notice: general (applicable beyond facts of the case), peripheral to outcome, certain
o Full Disclosure to Parties: adjudicative (authority in case law, policy, principle, etc. that are relevant in
the context of the specific case), critical or material to the outcome, uncertain

7. In Hearing: Evidence and Cross-Examination

o Agencies are not governed by the same rules of admissibility as courts, unless provided in statute
o SPPA s.15: outlines what is admissible at a hearing
o SPPA s.10.1(b): allows cross-examination of witnesses where reasonably required for a full and fair
disclosure of all matters relevant to the issues
o Right to Cross-Examine is not a necessary element of natural justice natural justice only requires for
the opportunity for parties to respond to evidence written submission can be substitute (Innisfil)
o Test: if cross-examination is the only way to test/prove a witness, then it must be given (Innisfil)

8. Post-Hearing: Reasons
o Rational for reasons is to provide assurance to parties that their representations have been considered
o SPPA s.17(1): tribunal must give reasons w/ decision if requested by a party
o Duty to Give Reasons depends on the circumstances:
Where decision is serious and important to the individual, it will trigger duty for reasons (Baker)
Where there exists a SRA, it will trigger the duty for reasons (for courts review) (Baker)
o Adequacy of Reasons (VIA Rail):
Reasons must reflect the purposes served by a duty to give reasons
Decision-maker must set out its finding of fact and evidence upon the decision was based
Reasons must address the major points in issue
Reasoning process must be set out and must reflect consideration of the main relevant factors
Cannot just recite the submission and evidence of parties, then state a conclusion
o Remedies for Inadequate Reasons:
 Court can send back to Tribunal to write better reasons
If reasons have error of law or failed to consider relevant issues rehearing w/ different panel

B. Nemo judex: cant be a judge in your own case (i) impartial and (ii) independent adjudicator

1. Impartiality
o Impartiality relates to the state of mind or attitude of the tribunal in relation to issues and the parties in
a particular case
o Four types of Bias:
i) Antagonism during hearing towards a party, counsel or witness
ii) Association /relationship between a party and the decision-maker
iii) Involvement of decision-maker in preliminary stage of process
iv) Attitude of decision-maker towards the outcome
o General Test: reasonable apprehension of bias (Committee for Justice)
What would an informed person, viewing the matter realistically and practically and having
thought the matter through conclude?
Note: variation in bias standard (Newfoundland Telephone)
Adjudicative Model Test adjudicative boards subject to reasonable apprehension test
Closed-Mind Test boards involved in policy-making are subject to closed-mind test
whether they are amendable to persuasion
o Institutional Bias:
Test for Institutional Impartiality whether there is a reasonable apprehension of bias in a
substantial number of cases (Quebec Regie)
Where there is a direct connection between prosecutor and the decision-maker, it gives rise to
suspicion of influence or dependency (i.e. bias) (Quebec Regie and MacBain)
o Attitudinal Bias:
Standard for Bias depends on the circumstances:
Where Tribunal is made up of people w/ specialized expertise and experience, you cannot
expect them not to have certain views on the specialized subject matter before them (Large)
Where a Tribunal necessarily has prior involvement w/ the party and does not act on
evidence brought before them but rather acts on their own knowledge of the party,
reasonable apprehension of bias will not be triggered unless flagrant violation (Paine)
Where decision-maker is involved in the claim going forward (even indirectly) and would be
a judge in her own cause, there is a reasonable apprehension of bias (Great Atlantic)
Where decision-maker clearly has a closed mind and is not sympathetic to the statutory
purpose of the decision to be made, a reasonable apprehension of bias is found (Baker)
o Pecuniary Bias
A direct pecuniary interest, no matter how trivial, will constitute pecuniary bias (Energy Probe)
A reasonable expectation of pecuniary interest will not constitute pecuniary bias (Energy Probe)
Note: Pecuniary Bias is distinct from Reasonable Apprehension of Bias (Energy Probe)
2. Independence
o Independence reflects or embodies the traditional constitutional value of judicial independence not
merely in state of mind or attitude in the actual exercise of judicial function, but a statutes or relationship
to others, particularly to the Executive Branch of government, that rest on objective conditions or
guarantees
o s.11(d) of the Charter:... to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal
o Test for Independence: reasonable apprehension of bias
the criteria for independence are not absence of influence but rather the freedom to decide
something according to ones own conscience and opinions (Consolidated-Bathurst)
o 3 Essential Conditions for Independence (Valente)
1. Security of Tenure
Tenure, whether until age of retirement, for a fixed term, or for a specific adjudicative task,
that is secure against interference by the executive or other appointing authority in a
discretionary or arbitrary manner
Does not need to be tenure for life will depend on the circumstances (Quebec Regie)
2. Financial Security
the right to salary and pension should be established by law and not be subject to arbitrary
interference by the executive in a manner that could affect judicial independence
3. Institutional Independence of the Tribunal
Independence w/ respect to administrative decisions bearing directly on the exercise of its
judicial function independence of tribunal from the govt controlling your own docket
It is not unusual for Ministers to have general oversight as long as they do not interfere with
the decision-making process (Quebec Regie see also Tremblay coercion by president)
o Factors for Degree of Independence Owed (Canada Pacific v Matsqui)
1. Nature of Tribunal
2. Interests at Stake
Serious or important decision to the person stricter application of Valente conditions
Less significant impact more flexible application of Valente (i.e. less independence owed)
3. Other indices of independence (e.g. oaths of office)

3 or 4 most significant procedures that would constitute fairness and address whether they are present

Conclusion: Based on these factors, it indicates that procedural fairness has (not) been given
 STANDARD OF REVIEW ANALYSIS
The Standard of Review analysis is set out in Dunsmuir, which replaced the functional and pragmatic approach. The
purpose is to determine the degree of deference owed to the decision of the administrative actor. These are the factors that
should be weighed to determine the degree of deference.
Applicable Existing Precedent?
o Existing precedent is still helpful in determining Standard of Review can bypass Dunsmuir analysis
o BC Administrative Tribunal Act statutory codification Patent Unreasonable Standard still applies as statute
however, Patent Unreasonableness in jurisprudence precedent no longer applies (Dunsmuir)

1. Nature of the Question

o the Analysis is driven by the characterization of the question question of Disaggregation? (Levis and VIA)
i) Question of Law questions about what the correct legal test is
Generally attracts a standard of correctness
However, can still be granted degree of deference from other factors (Pushpanathan)
Question of pure law and of high precedential value/importance to society, it is a strong indication
towards standard of correctness (Pushpanathan)
ii) Question of Fact questions about what actually took place between the parties
Generally attracts a standard of reasonableness
Also questions of Discretion and Policy
Application of discretion and broad policy considerations to the relevant facts high degree
of deference (reasonableness) e.g. sufficient H&C decisions (Khosa)
Limits on Discretionary Power pursuant to purpose of statute (Shell Canada)
iii) Questions of mixed Fact and Law questions about whether facts satisfy legal tests
General attracts a standard of reasonableness
More deference if fact intensive, less deference if law intensive (Dr. Q)
2. Is there a Presumption of Correctness?
o For (i) questions of pure law, (ii) questions of jurisdiction between tribunals (ultra vires questions), (iii)
constitutional questions, there is a presumption of correctness but still subject to other factors
3. Dunsmuir Factors
i) Is there a Privative Clause? Is there a Statutory Right of Appeal?
Privative Clause indication of deference
Strong privative clause indication that legislature wants matters promptly and finally decided by
the agency (CUPE v NB Liquor) e.g. no decision, order, etc...shall be questioned or reviewed
in any court... strong indication of deference
Weak Privative Clause (finality clause) indication of legislatures intention that decision should
be final entitled to some deference (Lafarge)
Statutory Right of Appeal
Narrow SRA with narrowed jurisdiction indication of deference
Broad SRA which encompasses all types of questions indication against deference
Where no SRA default common law reserves JR for courts against deference
 ii) Is there a discrete and specialized regime where the decision-maker has special expertise?
Factors for Expertise Complexity of the issue? Expertise of the agency? Does it go to the core of the
agencys mandate? (Pezim)
Does question in dispute fall within the area of the tribunals expertise? (Southam)
Expertise is knowing things in a way that the court does not look to (i) Industry Standards and (ii)
Legislation for clues as expertise
Exposure: experience with the matter, number of years theyve been hearing cases
Experience: both individual and institutional experience
iii) Is the decision regarding a question of law of general importance to the legal system as a whole
(precedential value?) and outside their specialized expertise?
If no then neutral, no indication towards deference
If yes, then indication against deference
Conclusion: On a balance of these factors, the Standard of Review is one of reasonableness/correctness
Correctness Standard
o Carte-blanche do not have to take into account the reasons of the decision-maker

Reasonableness Standard

o Reasonable Decision should be (i) transparent; (ii) intelligible; (iii) justifiable (Dunsmuir)
o Reasonableness applies not only to the outcome of the decision, but also to process of articulating reasons

Dunsmuir: Reasonableness...requires that deference be accorded to the underlying decision, which imports
respect for the decision-making process of adjudicative bodies with regard to both the facts and the law and
implies that courts will give due consideration to the determinations of decision makers

Calgary (City) v Alberta (Municipal Government Board) (2008, Alta CA)

o Court makes reference to both the Boards decision and reasons and then engages with those reason

Western Forest Products Inc v Hayes Forest Services (2009, BCCA)

o Reasonableness Analysis:
Arbitrators reasoning process was so flawed that it went beyond the range of reasonableness
His path of reasoning led him to import a criterion not included in the provision he was applying
especially as the statute was no ambiguous
The Regulation set down criteria to control the resolution of fairness objectively it did not provide
the Arbitrator with uncontrolled discretion to import criteria beyond those listed

Macdonald v Mineral Springs Hotel (2008 AB CA)

o Where the reasons provided are not sufficient to provide insight into the reasoning of the decision, court
can send the issue back to the tribunal to provide sufficient reasons for its decision

Debate over whether Reasonableness constitutes a spectrum:

o SCC in Khosa: a single standard that takes its colour from the context