Evolution of Fairness in Administrative Law PDF - Fall 2024

Evolution of Fairness in Administrative Law FALL 2024  Fairness Fairness as a guiding principle  in response to concerns about the expansion of government powers, courts began to develop rules of fairness in decision-making PROGRESSION  STARTING WITH: rules applied only to...

Evolution of Fairness in Administrative Law FALL 2024  Fairness Fairness as a guiding principle  in response to concerns about the expansion of government powers, courts began to develop rules of fairness in decision-making PROGRESSION  STARTING WITH: rules applied only to decision-makers who made quasi- judicial decisions that affected people's rights - types of decisions/functions usually carried out by tribunals)  THEN EXPANDED TO: Quasi-judicial or administrative decisions made by departments/agencies (other than a legislative or policy decision, or a minor admin decision) that affected an individual's rights, privileges or interests - NOW EXPANDED TO FAIRNESS PRINCIPLES - require decision-makers to consult individuals who have come to rely on a policy or procedure before they change the policy or procedure where those individuals have been led (by promise or other administrative action) to have a legitimate expectation that the policy or procedure would continue to apply Procedural Fairness vs Natural Justice  HISTORICALLY: courts took an ALL OR NOTHING approach to rights to challenge fairness of procedures used by government bodies  DOES IT APPLY? TO QJ? -YES (functions of tribunals)  TO ALL OTHER FUNCTIONS? (legislative, policymaking, investigative, administrative) - NO  IF YES (ie. tribunal decision-maker), affected party had a wide variety of procedural fairness rights, for example the right to a fair hearing, which included: - right to notice of proceedings - right to be represented by lawyer or agent - right to oral hearing - right to call and x-examine witnesses - right to make closing arguments and submissions before the decision was made  IF NO affected party had no right to notice or an opportunity to be heard after the decision was made Relevance of Quasi-judicial status  Generally, if a government body or agency denied a right, benefit or privilege, decision was considered QJ and triggered requirement of natural justice.  IF DECISION WAS ADMINISTRATIVE - no minimum procedures had to be followed to ensure fairness proxy other than those that were explicitly or implicitly set out in the governing statute  - decision-maker was not subject to common law rights of natural justice  TRIBUNAL'S BINDING DECISIONS - considered QJ therefore NJ applied  TRIBUNAL'S RECOMMENDATIONS TO GOVERNMENT - considered administrative therefore NJ not applicable  PROBLEM WAS DECIDING WHICH DECISIONS WERE QJ VS ADMIN Ministry of National Revenue v Coopers and Lybrand  In 1979 decision of Ministry of National Revenue v Coopers and Lybrand SCC attempted to clarify difference but setting out the following 4 FACTORS:  1) whether anything in language or statute suggests that a hearing is contemplated before a decision is reached;  2) decision directly or indirectly affects rights and obligations of a person affected by the decision;  3) whether an adversarial process is used in making the decision; AND  4) whether there is an obligation to apply substantive rules to many individual cases rather than an obligation to implement social and economic policy in a broad sense. Quasi-judicial or not?  NEED ALL 4 YESSES TO BE QJ  IF ANY ANSWER IS NO- NOT QJ and body is free to make decisions without consulting the person affected by the decision or applying rules of natural justice THEREFORE SCC also reaffirmed traditional approach of denying procedural rights if not QJ decisions and therefore a wide variety of executive and administrative decisions were not subject to rules of natural justice Nicholson v Haldimand-Norfolk Regional Police Commissioners  BUT SAME YEAR 1979 in case of Nicholson v. Haldimand-Norfolk Regional Police Commissioners SCC changed its position a decision that the requirement to follow fair procedures DID NOT depend on whether a decisions was QJ or fell into some other category, i.e. admin  SCC found that certain basic procedural rights applied to ANY government decision that would affect a particular individual or group more than it would the general public CARDINAL v DIRECTOR OF KENT INSTITUTION  THEN in 1985 case of Cardinal v Director Of Kent Institution SCC reaffirmed that any administrative decision that affects the rights, privileges/interests of any individual triggers the DUTY OF FAIRNESS – AT A MINIUMUM: anyone adversely affected by a decision must be told the reasons for it AND given an opportunity to respond, or at least to “be heard” by an unbiased decision- maker, if not to have a full “hearing”  Doctrine/principle is called procedural fairness Baker v Canada (Minister Of Citizenship And Immigration)  SCC in 1999 case of Baker v Canada (Minister Of Citizenship And Immigration) further elaborated as follows: “Purpose of participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision maker.” L’Heureux-Dube Right to be heard vs Right to hearing  They are not the same  Procedural Fairness VS Natural Justice  Formal hearing not required  Person must be consulted before final decision is made  Formal proceeding that must be held by court/Tribunal according to rules of natural justice Procedural Fairness - current definition  TODAY: Standard of treatment required by all agencies, including Tribunals, is generally referred to as “procedural fairness” but duties that that entails differ depending on several factors, including whether decision-making body is a Tribunal or some other body or an individual  Natural Justice is still sometimes used to describe particular kind of procedural fairness that applies to Tribunals  The right to receive procedural fairness has been extended from person most directly affected by a decision to others who may be less directly affected.