STTC (FORMULA) GENERAL FRAMEWORK FOR PROCEDURAL FAIRNESS

ADMINSTRATIVE LAW:

PROCEDURAL FAIRNESS SUBSTANTIVE REVIEW

S-ources: The Enabling General Procedural Common Law (fill in gaps Charter of Rights Bill of Rights
Statute (the Law) Statutes (Provincial if the Statutes are (Federal
of the ADM Laws) defective) ADM’s)

T-riggers: Statute Statute (e.g., SPPA, Knight’s Three-Prong S. 7 (Life, Liberty, s. 1(a) and
APJA, ATA) Test and Legitimate and Security) 2(e).
Expectation Test

T-hreshold: Is the threshold for the application met based on the facts of the scenario?

C-ontent: Start with Baker v Canada – Baker Factors:

After the Baker factors, discuss the content issues or participatory rights arising from your scenario.

I. Test for Procedural Fairness (No Reasons are Given):

a. Step 1: what are the procedures ought to have been followed?
b. Step 2: what procedural issue is being raised (see table below)?

OR
 c. Step 3: whether you are entitled to the right that you are claiming was violated?
i. See “Sources” in the Framework Table.
ii. Look at what statute applies to the individual and determine whether they are entitled to the
rights they were denied.

Legislative vs Administrative Law:

Baker Factors/Analysis:
1. The Nature of the Decision:
• The court in Knight held that a duty of procedural fairness lies on every decision-making authority making
administrative decisions not resembling legislative actions and which affects the rights, privileges, and interest of an
individual. Martineau.
• Even a decision regarding an initial application for a benefit might cross the threshold, depending on the
circumstances. Hutfield. In this analysis the court will consider whether the decision is a legislative decision or
administrative decision. The court will also consider whether the decision is a preliminary one or a final decision.
• A delegated rule-making and subordinate legislations such as bylaws fall within the scope of legislative decisions and
are therefore exempt from procedural fairness, Similarly, it has been held that where a Minister is setting policy,
rather than deciding on an individual case, the threshold has not been crossed. The mere fact that certain identifiable
parties would be economically harmed by the policy decision does not change the nature of the decision.
• However, in a case where the subordinate legislation is put in place to affect the rights of an individual or group
within the community, the court may impose procedural obligations because such a decision is no longer general and
does cross the threshold for procedural entitlements. Homex.
• In Knight, the court also held that a preliminary or interlocutory decision will not generally require a procedural
fairness duty, whereas a decision of a more final nature may invoke procedural fairness. The exception is where for
example the proximity between the preliminary and final decisions is such that the preliminary decision materially
impacts and/or determines the final decisions, procedural obligation may then arise. See ABEL.

• (Apply to the facts of your question). In the instant case, the decision of the ADM is not of a legislative or rulemaking
or even policy spectrum, the tribunal was set up by (Enabling Statute) to make administrative decisions regarding
(Insert ADM Objectives) (Martineau and Hutfield), the decision is a final decision as stated in the scenario hence
from the nature of the decision, procedural fairness obligation should be afforded the applicant.
2. The Relationship Existing Between That Administrative Body and The Individual:
• In Knight, the court in its common law threshold analysis took note of “the relationship existing between (the
ADM) and the individual” as a matter of relevance to whether procedural fairness was owed. The principle in
Knight was that public office holders whose office and/or duties were established under statute - are owed
procedural fairness when subject to dismissal.
• However, in Dunsmuir, the SCC rejected the distinction between public office holders and contractual employees
on which the decision in Knight had relied and held that if the public office holder's employment is governed by
contract, then the dismissal process should be governed by the terms of the contract and that no additional
public law duty of fairness would be allowed.
• The public law duty of fairness may still apply where: the public employee is not protected by Statute; an office
holder is subject to summary dismissal and Statutory power governs the employment relationship.

• (Apply to the facts of your question). In applying this principle to the case at hand, the applicant... (state
whether any indication has been given in the facts about the content of this criteria).

3. Effect of the Decision on The Individual's Rights, Interest, and Privileges:

• This is an expansion from pre-Nicholson days, when the decision had to affect legal rights in order to cross the
threshold. Now, it is sufficient if the decision affects one's “rights, interests, property, privileges, liberties”.
Martineau. Even a decision regarding an initial application for a benefit (such as a physician's application for
hospital privileges) might cross the threshold, depending on the circumstances. Hutfield.

• (Apply to the facts of your question). In the instant case, the decision of (Insert ADM) would have significant
impact on the applicant from the facts of the case, the outcome of the decision would…, hence procedural
fairness obligation should be afforded the applicant.

• The application of common law could also be triggered by the concept of legitimate expectations. The courts
may still impose certain procedures on the ADM where a party had a legitimate expectation of procedural rights,
based on a promise by a public official, or the past practice of the ADM (i.e., Express Representation or Implied
from practice). Old St. Boniface Residents Assn. Legitimate expectation does not give rise to substantive
rights, only procedural rights. Reference Re. Canada Assistance Plan.

• This doctrine looks to the conduct of public authorities in the exercise of their powers, including established
practices, conduct or representations that can be characterized as clear, unambiguous or unqualified, for
example, if a government official makes a clear, unambiguous and unqualified representation within the scope of
his or her authority to an individual about an administrative process that the government will follow, the
government may be held to those representations provided they are procedural in nature and do not conflict
with the officer's statutory duty.
• Further, proof of reliance is not a prerequisite. Mavi. This doctrine will however not apply when the body or
public officer is exercising a purely legislative function or in the case of purely ministerial decision made on
broad grounds of public policy Reference Re Canada Assistance Plan, Martineau v. Masqua Institution
Disciplinary Board.

• (Apply to the facts of your question) In the instant case…

1. CHARTER TRIGGER:
• If the enabling legislation precludes the procedural entitlement being sought, one cannot ground a claim for that
procedure in the common law. Therefore, in such cases, one must ask whether the decision is over the Charter
threshold (for both provincial and federal ADMs) or over the Bill of Rights threshold (for federal ADMs).
 • On procedural review, the most frequently argued section of the Charter is section 7.
• If the ADM’s decision affects life, liberty, or security of the person, the Charter threshold has been passed.
• As with the common law threshold, the applicant need not show that legal rights (apart from the s.7 rights in
issue) are affected: an impact on interests or privileges is sufficient. Singh.

• If a decision affects life, liberty, or security of the person, then in accordance with the wording of s. 7 of the
Charter, the procedures followed by the ADM must be in keeping with the principles of fundamental justice.
• What is required to trigger the Charter right under is to show:
o (1) That he has or could be deprived his right to life, liberty, and security.
o (2) That the deprivation was or would not be in accordance with the principles of fundamental justice.
• The issue is not whether the right is justified, but whether the limit has been imposed in a way that respects the
principles of fundamental justice. Charkaour.

2. Who does the Charter apply to?

• The Charter applies to government action. This is the case whether a federal, provincial, or municipal
government is acting.
• The Charter does not apply to private interactions between individuals or private businesses.
o For example, the Charter would not apply to dealings between an individual and his or her spouse or
landlord.
o Interactions between private parties are governed by provincial or federal human rights legislation.
• Sometimes, an entity that appears to be private will be subject to the Charter because it is exercising a power
given to it by the government, or it is implementing a government objective.

Baker Five-Step Analysis:

1. Nature of the decision made, and the process followed:
a. Although there is no more distinction between judicial and administrative body with respect to the duty
being owed, if the decision is judicial or adjudicative in nature, it will require more extensive protection than
regulatory decisions which impact social and economic policy (Nicholson). (Apply to the facts of your
question).
b. In the instant case, the decision and/or process of the tribunal in reaching its decision has a semblance to
judicial or adjudicative cases, because it required…, hence a high level of procedural fairness will apply.

2. The role of the decision maker within the statutory scheme:

a. Courts are attentive to the terms of legislation that authorised the tribunal to act. If the enabling statute
provides the official with a fact finding or investigative function as a preliminary stage to a hearing before
the decision maker will render its decision, then a low threshold of procedural obligations will apply at that
stage. If, however, no appeal procedures are provided for in the Act, then greater procedural obligations
will be owed. (Apply to the facts of your question).
b. In the instant case…

3. The importance of the decision to the affected individual:

a. The more important the decision or its impact on the lives of those affected, the greater the procedural
obligations that will be owed. In Suresh, the court stated this factor as a determinant to meet the
requirement of fundamental justice under Section 7 of the Charter. (Apply to the facts of your question).
b. In the instant case, the decision would greatly have an effect on the rights, interests and privileges of the
applicant because from the facts given, the….

4. The legitimate expectations of the person challenging the decision:

a. The legitimate expectations of the person challenging the decision may also determine what procedures the
duty of fairness requires in the given circumstances. If a claimant has a Legitimate expectation that a
 certain procedure will be followed, this procedure will be required by the duty of fairness. Similarly, if a
claimant has a legitimate expectation that a certain result will be reached in their case, fairness may require
more extensive procedural rights than would otherwise be accorded. (Apply to the facts of your question).
b. In the instant case….

5. The choices of procedure made by the agency/ADM itself:

a. Particularly when the statute leaves to the ADM the ability to choose its own procedure or when the agency
has an expertise in determining what procedures would be appropriate in the circumstances then a high
level or degree of procedural obligations would arise.
b. The rule is that the greater the power, the greater the responsibility, the more an ADM can choose its
procedures the more procedural obligations an applicant should be afforded. (Apply to the facts of your
question).
c. In the instant case….

III. Based on the above, especially the factors considered in the Baker case, my conclusion at this stage of the analysis
is that the degree of duty of procedural fairness is:
a. high (in favour of granting higher procedural fairness obligation), OR
b. low (against the grant of higher degree of procedural fairness obligation).
IV. Having decided that the procedural fairness obligations owed the applicant by the ADM is high or low, the next step is
to examine the actual procedural entitlements.
V. Part of the fifth step of the analysis is to determine from a wide range of possible procedural fairness rights,
the exact content of the right that is owed in the case at hand.

VI. NOTE: Procedural fairness obligation requires the right to heard and the right to an unbiased and impartial
tribunal.
a. The duties that may arise under the right to be heard in this case, such as in pre-hearing, actual hearing,
and post-hearing, in relation to the case, at hand, and
b. if applicable the right to unbiased, impartial, and independent tribunal, this analysis will identify the exact
procedural fairness duty that is owed in the case at hand.

CONCLUSION:
• Having reviewed the process the administrative decision maker (Insert name of ADM) followed to arrive at the
decision, and also upon a further review of all the procedural fairness obligations, which were denied to the applicant,
it is apparent that the (Insert name of ADM) owed the applicant the duty to follow the appropriate process before
making its decision.
• The failure of the decision maker to follow the appropriate process before determining the rights, interest, and
privileges of (Insert name of Applicant) is a breach of the procedural fairness obligations, which ought to have been
afforded to the applicant.

• Author's Notes: The above conclusion only applies where the applicant was indeed owed procedural fairness
obligations, in the likely alternative that no procedural rights are owed, the conclusion must be reversed.