Procedural Duties in Administrative Law

This is an excerpt from my forthcoming article “The Doré Duty: Fundamental Rights in Public Administration“, to appear shortly in the Canadian Bar Review.

The Doré duty is a procedural duty. A procedural duty imposes obligations on administrative decision-makers to do certain things prior to making a decision. The source for a procedural duty can be statute, the common law or the Constitution and the obligations imposed are obligations to do certain things during the decision-making process. The Doré duty is constitutional in origin and obliges administrative decision-makers to take account of Charter values before making a final decision.  

            The purpose of this Part is, first, to demonstrate that there is nothing unusual about procedural duties being imposed on decision-makers as a matter of administrative law and, second, to describe the obligations arising from procedural duties. I describe this type of duty as “procedural” because it does not impose substantive limits on the ultimate decision, which remains that of the administrative decision-maker, but rather relates to how the decision-maker’s decision-making process should unfold. It would be fanciful to suggest that a procedural duty has no impact on the final decision, as the purpose of imposing procedural duties is to influence how administrative decision-makers go about their business by requiring them to take certain matters seriously. Nonetheless, it is a duty to do certain things rather than a duty to reach a particular result, and, for that reason, can safely be described as “procedural”. Furthermore, compliance with a procedural duty is assessed independently of the lawfulness of the final decision: in other words, a decision-maker may satisfy its procedural duties but, ultimately, fail to make a lawful decision; conversely, even if a decision is lawful in the sense that it is substantively reasonable, the decision may be invalidated if the decision-maker failed to comply with its procedural duties.

            A good example of a statutory procedural duty is the public sector equality duty imposed on decision-makers in the United Kingdom. Section 1 of the Equality Act 2010 provides that public authorities must “when making decisions of a strategic nature about how to exercise … functions,” pay “due regard” to the “desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.”[1] This had precursors in legislation relating to racial and disability discrimination.[2] Where the duty is engaged, the court must ensure that the decision-maker had “a proper and conscientious focus on the statutory criteria.”[3] The ultimate weight to be given to the criteria is a matter for the decision-maker[4] (as long as the decision is substantively reasonable and otherwise lawful) but compliance with the duty is an “essential preliminary” to a lawful decision: failure to comply with a procedural duty renders a decision unlawful.[5]

            A similar duty grounded in the common law is the so-called “Tameside” duty in English administrative law.[6] The eponymous case involved a statutory provision requiring the Secretary of State for Education to act reasonably: accordingly, Lord Diplock held, in the passage treated as the locus classicus of the Tameside duty, the Minister was obliged to “take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.”[7] Where the duty applies, a decision-maker must conduct “a sufficient inquiry prior to making its decision.”[8] The duty applies even to decision-makers exercising wide discretionary powers: indeed, “[t]he wider the discretion conferred … the more important it must be that [the decision-maker] has all relevant material to enable him properly to exercise it.”[9] Again, the ultimate weight to be given to a particular consideration is a matter for the decision-maker (subject to making a substantively reasonable and otherwise lawful decision) but a failure to comply with the duty is unlawful.[10]

            An example of a constitutionally based procedural duty is the duty to consult in Canadian public law. Where a decision-maker proposes to make a decision with the potential to affect Indigenous rights, a requirement of consultation is imposed. The extent of the duty varies according to the context but requires a decision-maker subject to the duty to act “with good faith to provide meaningful consultation appropriate to the circumstances.”[11] The ultimate decision after consultation is for the decision-maker, albeit a duty of accommodation may be “appropriate” in some instances.[12] A breach of the duty to consult renders the resultant decision unlawful, even if it is was otherwise legally unproblematic.[13]

            The Doré duty to take account of Charter values fits neatly into this set of procedural duties.

            Before moving on to consider the Doré duty in detail, it is necessary to introduce one last nuance on the “procedural” nature of the duty. In Canadian administrative law, procedural duties of this nature are most naturally addressed under the framework for judicial review set out in Vavilov.[14] The Vavilov framework applies to judicial review of the merits of administrative decisions rather than to process.[15] At first glance, one might think that a procedural duty goes to process, not to merits. However, in Vavilov, process was treated as co-extensive with “procedural fairness”, to be determined by reference to the factors set out in previous jurisprudence;[16] but these factors would not assist a court in determining whether a procedural duty (such as the Doré duty) has been discharged, as they are designed solely to calibrate the level of procedural fairness required in any particular instance. It is difficult to see, therefore, how the Doré duty could plausibly be said to fall on the “process” side of the merits/process divide set out in Vavilov.[17]

            Moreover, on reasonableness review as elaborated in Vavilov, a court must look both to the decision-making process and the final decision: for example, failing to consider certain aspects of a legislative scheme when interpreting a statutory provision, failing to grapple with key arguments and evidence, and failing to pay adequate attention to important interests are all things apt to lead a decision-maker to act unreasonably. Just like the Doré duty, these are things to be done during the decision-making process. As such, the Doré duty fits neatly into the Vavilov framework, under the reasonableness rubric. Indeed, subsequent to Vavilov, when Canadian courts have considered one of the analogues to the Doré duty—the procedural duty to consult Indigenous peoples—they have applied reasonableness review.[18]

            Where there is a statutory right of appeal, the correctness standard applies to extricable questions of law. Compliance with the Charter will typically—though not necessarily[19]—constitute an extricable question of law, and thus, the question for the court will be whether the reasons and record reveal compliance with the Doré duty.

            As a result, notwithstanding its “procedural” nature, compliance with the Doré duty is best assessed using the Vavilov framework.

This content has been updated on June 28, 2023 at 15:01.