Administrative Law

PROCEDURAL FAIRNESS

Source
What is the source of procedural obligation?
Does the administrative body, in making its
decision, owe the affected party a duty of
procedural fairness (right to be heard and right
to impartial decision-making). Always begin
with statutory procedural obligations (but not all
statutes will provide a list of procedural norms
to be followed during the decision-making
process). Following this, think about potential
constitutional and quasi-constitutional triggers,
and then lastly turn to the common law to 'fill in
the gaps'.

TRIGGERS
What statute/provision/section/case
triggers procedural fairness obligations?
For statute, provisions of the enabling
statute.
For Bill of Rights - Section 1(a) or 2(e).
For Constitution - Section 7, 15, 35
For Common Law - Agraira or Mavi
(legitimate expectations) or Cardinal or
Knight.

Threshold
Minimum requirements for duty of
procedural fairness to be triggered:
Statute - the provision may state threshold
(e.g. for hearings heard by a tribunal) or for
general procedural statute see minimum
requirements therein.
Common Law - Knight 3-Prong Test
Doctrine of Legitimate Expectation: test
under Agraira and Mavi.

Threshold
Minimum requirements for duty of
procedural fairness to be triggered:
Constitution
Section 35 - See Haida Nation
Section 7 - Infringement of Life, Liberty
and/or SofP + not in accordance with the
principles of fundamental justice + s.1
Quasi-Constitutional
See requirements under S.1(a) and 2(e)

Procedural Entitlements
Procedural norms party may be entitled to:
Statute - whatever is in the provisions.
Legitimate Expectations - whatever was
promised.
Common Law - range of entitlements at
common law (but not exhaustive) and are
context-dependent.
Section 7 - at least the norms at common
law + possible legal rights (context-
dependent).
Section 35 - consultation & accommodation
Bill of Rights Section 1(a): Same as Section 7
Bill of Rights Section 2(e): Fair Hearing
Dr. S.Gilani (2023)
 TRIGGERS &
THRESHOLDS
Procedural Fairness

SOURCE: STATUTE

1 Trigger: name of the statute and specific provisions.

Threshold Requirements:
Look at the specific provision of the statute in question.

SOURCE: CONSTITUTION

2
Trigger: Section 7
Threshold Requirements:
1. Decision must deprive individual of life, liberty and/or security of person
2. Deprivation is not in accordance with the principles of fundamental
justice.
3. Deprivation cannot be justified under s.1

SOURCE: CONSTITUTION

3
Trigger: Section 35
Duty to consult or accommodate arises in case of a public
decision that adversely impacts (or risks adversely
impacting) an established or potential Aborigial right, title
right or treaty right (Haida Nation)

SOURCE: BILL OF RIGHTS

4
Trigger: Section 1(a)
Threshold Requirements:
1. Deprivation of life, liberty or security of person, or enjoyment of
property not in accordance with the process of law - procedurally
fair.
Can be relied on by 'juridical persons' and only re: Federal admin bodies

SOURCE: BILL OF RIGHTS

5
Trigger: Section 2(e)
Threshold Requirements:
1. Deprivation of the right to a fair hearing in accordance with the
principles of fundamental justice for the determination of his
rights and obligations.

SOURCE: COMMON LAW

6
Trigger: Knight and Cardinal
Threshold Requirements - Knight Three Prong Test
1. Decision must affect rights, privileges or interests of affected party;
2. Nature of the decision
3. Nature of the relationship between affected party and administrative
body.

SOURCE: DOCTRINE OF LEGITIMATE EXPECTATIONS

7
Trigger: Agraira v. Canada and Canada v. Mavi
Threshold Requirements:
1. Representation must be clear, unambiguous and unqualified
2. Must be made by body exercising statutorily delegated power
3. Must be made by an official authorised to make representation
4. Must be a representation as to procedure and not outcome

Dr. S.Gilani (2023)

 WHAT 'QUANTUM' OF
PROCEDURAL FAIRNESS IS OWED?

BAKER V.
CANADA

1 NATURE OF DECISION

The nature of the decision being

made and the process followed in
making it.
The more the decision-making
process operates like a
judicial/quasi-judicial
proceeding, the stricter the
array of procedural protections
granted.

2 STATUTORY SCHEME

The nature of the statutory scheme

and the terms of the statute
pursuant to which the body
operates.
Stronger entitlements when no
appeal is permitted or when
decision is final or at final stage.

3 IMPORTANCE*

The importance of the decision to

the individual or affected party.
Greater impact of decision (e.g.
rights/obligations affected), the
more stringent PF entitlements.
Criterion given the most weight
in Baker.

4 LEGITIMATE
EXPECTATION
Legitimate expectations the affected
party may have had.
Did the admin body make a
representation that could give
rise to a reasonable expectation
that a certain procedural will be
followed?
If parties have a legitimate
expectation to a certain
outcome, more stringent
procedural requirements may be
warranted.

5 CHOICE OF
PROCEDURE
Choice of procedures made by admin
body itself.
Less stringent PF entitlements
may be warranted if choice of
procedures is based on expertise
of administrative body.
Weight should be given to choice
of procedures given institutional
constraints (e.g. not imposing
procedural burdens on a body
that is required by statute to
render a decision very quickly).

Each of the procedural norms you believe the affected party is (or should have been)
entitled to must be justified by your analysis under Baker [1999].

Dr. S.Gilani (2023)