PROCEDURAL FAIRNESS FRAMEWORK

A. Read statute/regulations

Does home statute/reg, or general procedural statute, give you the answer to
your procedural problem?

Example:
 statute/reg says must be oral hearing and it was denied!
o go to court to enforce
 statute/reg says “no oral hearings” – what can you do?
o common law useless, maybe Charter/Bill of Rights (see below)
 statute/reg silent or doesn’t answer question
o common law (see below)

B. Common law

1. Is duty of PF owed by DM? If no, end of story

o Knight (rpi)
o usually not preliminary decisions (eg investigations)
o usually not general decisions (eg legislative, policy decisions)

2. If yes, DM owes:
o right to be heard
o right to unbiased decision

3. What is level of PF owed?

o Baker (low/medium/high)

4. Based on level of PF owed, go to list of “procedural benefits” (Mandarin

menu)
o which ones did you expect to get but did not receive?
o is that a reasonable expectation based on level of fairness, what courts
say (case law) about those benefits?

 e.g., oral hearing, courts say usually not expected unless level of
PF high, credibility at stake (“he said/she said”)

C. Charter/Bill of Rights

If applicable, may “rewrite/strike down” statutory provision that is blocking you

from procedural benefit