The Case for Deference on Questions of Procedural Fairness — in Canada

Here is the second extract from my forthcoming article, “Canada’s Bi-Polar Administrative Law: Time for Fusion“, in which I argue for deference on questions of procedural fairness. This extract makes an argument specific to Canada. Download the paper here.

The Court’s recent insistence that “the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be ‘correctness’” rings somewhat hollow.[1] Even if it could be said that the jurisprudence has “satisfactorily” established correctness as the standard of review of procedural fairness claims, the “relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review”.[2] Post-Dunsmuir, this calls for a reassessment of the prevailing orthodoxy.

The dominant role of legislative intent has led to the “triumph” of reasonableness review on matters of substance.[3] On some occasions, as in Au dragon forgé and McCaffrey, resolution of a procedural fairness issue will require the decision-maker to interpret its home statute, an interpretation presumptively entitled to deference post-Dunsmuir. It is difficult to perceive why a sub-category of interpretations of law should be treated differently simply because they deal with matters of procedure rather than substance.

More generally, reasonableness is now also the standard of review when an administrative decision-maker applies three types of general norm that are analogous to procedural fairness. (1) The Court made clear in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals that the application of a common law rule, such as estoppel, by an expert decision-maker acting in its specialized domain, should be reviewed deferentially:

[L]abour arbitrators are authorized by their broad statutory and contractual mandates ― and well equipped by their expertise ― to adapt the legal and equitable doctrines they find relevant within the contained sphere of arbitral creativity. To this end, they may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized.[4]

(2) Application of an external statute is also subject to deferential review. In Bernard v. Canada (Attorney General), the Public Service Labour Relations Board had to apply the Privacy Act[5] to a labour relations matter. But, as Evans J.A. explained in the Federal Court of Appeal,the issue was not one of “general application”but turned instead on findings of fact made in the Board’s specialized domain.[6] There was no “readily extricable question of more general application that would elevate it to one of statutory interpretation” because the Board was applying the Privacy Act “to a labour relations context, its undisputed area of expertise”.[7] On appeal, the Court laconically stated that the Board had come to a “reasonable” conclusion.[8]

(3) Most significantly, this is now true even of the application of the Canadian Charter of Rights and Freedoms in the context of a particular statutory scheme. As Abella J. explained in Doré v. Barreau du Québec: “An administrative decision-maker exercising a discretionary power under his or her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter values”.[9] Moreover, if alleged breaches of constitutional rights are reviewable on a deferential standard in some cases, as held in Doré,[10] there is less justification for giving additional judicial protection to procedural fairness rights. It would be incongruous for common law procedural protections to provide more robust protection than the Charter.

In summary, given that administrative bodies will have a “distinct advantage” in applying such general norms “to a specific set of facts and in the context of their enabling legislation”,[11] automatic correctness review on any procedural matter is inapposite. Deference on procedural fairness would be consistent with the general “orientation” of the Court’s recent jurisprudence.[12]

[1] Mission Institution v. Khela, 2014 SCC 24, at para. 79.

[2] Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, at para. 48.

[3] John M. Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 Canadian Journal of Administrative Law & Practice 101.

[4]2011 SCC 59, [2011] 3 S.C.R. 616, at para. 45. See also British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422.

[5] R.S.C. 1985, c. P-21.

[6] 2012 FCA 92, at para. 36.

[7] 2012 FCA 92 at para. 37.

[8]2014 SCC 13, at para. 33. See also Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, at para. 13.

[9]Doré,at para. 47.

[10] See also Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467.

[11] 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 48.

[12]Au dragon forgé, at para. 46.

This content has been updated on September 2, 2014 at 11:21.