Procedural Fairness: a View from 20,000 Feet

Paul Daly December 1, 2014

Should courts defer to administrative decision-makers on procedural matters? As things stand (for the most part), judicial intervention is warranted whenever a decision-maker fails to live up to judicially developed conceptions of fairness. But this judicial supremacy sits uneasily with the modern, context-sensitive duty of fairness.

Historically, automatic intervention whenever a decision-maker deviated from the norm made some sense. Inferior tribunals were subject to judicial review only when acting “judicially” (e.g. R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. [1924] 1 KB 171). A deviation from the rules of natural justice was a failure to act judicially, which reviewing courts could correct, just as an appellate court would correct the errors of a lower court. In addition, courts could be said to have expertise in respect of the content of the rules of natural justice, since these same rules applied to their own functions.

But from the 1960s onwards, natural justice was ousted by a duty of fairness that applies to a wide range of administrative action but which applies in a context-sensitive manner. Once natural justice came to be replaced by fairness, the justifications for intrusive judicial review of procedural questions ceased to be persuasive.

Karim Renno writes in defence of intrusive review of procedural decisions:

By definition, a process that contravenes the applicable rules of procedural fairness is unfair. That is why a breach of procedural fairness does not (save very exceptional circumstances) entail the reversal of a decision, but its annulment. A breach of procedural fairness doesn’t mean that a decision is wrong, it means that the process is wrong and unfair. To put it another way: the fact that a party is not afforded the opportunity of being heard means that the process is fundamentally vitiated, not that the ultimate decision did not reach the right result. That is why, in my view, an administrative decision rendered where the process is wrong and unfair can never stand. As such, I can’t accept that the standard of review would be reasonableness. With all due respect, that would be going too far.
But when we look at the matter from 20,000 feet, we can observe a huge divergence between the historical justifications for correctness review of procedural questions and the modern, context-sensitive approach to procedural fairness. Why would we think that courts are better placed than administrative decision-makers to understand what fairness requires in a particular context? At the very least, shouldn’t we presume the decision-maker got it right? Don’t we undermine the autonomy of administrative decision-makers if — months or maybe years after the fact — we strike down a decision because, say, an adjournment was unfairly denied in the eyes of a reviewing court?
Indeed, there is reason to think modern courts are alive to these concerns; hence one sees the Supreme Court of Canada reaffirm the orthodox view that correctness is the standard of review of procedural questions but emphasize that a “margin of deference” must be accorded to decision-makers’ procedural choices (Mission Institution v. Khela, 2014 SCC 24).
It is rhetorically pleasing to say that judges watch over the “fairness” of administrative proceedings. But “fairness” here has a whiff of the Chancellor’s foot about it, with a risk that its content will depend on the preferences of judges rather than the practical realities of administration. Better, in my view, to defer on procedural questions, starting from the presumption that the decision-maker got it right; if they considered the arguments presented and gave cogent, context-sensitive reasons for denying a particular procedural claim, it is hard to see why they should automatically be second-guessed by courts.
Much depends, of course, on how deference is operationalized and reasonableness assessed. Karim has some concerns on this score (“a tiny bit of the soul of every jurist dies whenever he’s told that, yeah, the decision is probably wrong, but it’s not unreasonable”), but the proper conception of reasonableness is a rich one that ensures scrutiny of administrative action to keep it within legally acceptable bounds. Appropriately applied to procedural decisions, it poses no threat to the integrity of the legal system.

This content has been updated on November 30, 2014 at 15:29.