I posted about the first-instance decision in Canadian Arab Federation v. Canada (Citizenship and Immigration), 2015 FCA 168 a while ago. Here, the Minister refused to enter into a new agreement with the Federation because of what he perceived as anti-semitic comments by one of its representatives. My particular interest is in the procedural fairness […] Read more

Isbester v. Knox City Council, [2015] HCA 20 is an interesting example of the operation of the rule against bias to administrative proceedings. At the centre of the tale is a dog, Izzy, who had attacked and injured a person. Legislation in the Australian province of Victoria gives the Council the power to order that […] Read more

When an administrative decision-maker hears argument but decides a point on another ground, what is the appropriate posture of a reviewing court? Is this a matter of procedural fairness, because it goes to the ability of the parties to make full and complete submissions, or is it a matter of substantive reasonableness, because it goes […] Read more

Modern examples of successful exclusion of the rules of procedural fairness are relatively rare. An interesting recent example is  CPCF v Minister for Immigration and Border Protection, [2015] HCA 1, a typically lengthy and thorough decision of the High Court of Australia. There are very useful summaries available on the University of Melbourne’s Opinions on […] Read more

The English courts have in recent decades recognized a common law duty to consult as an aspect of the duty of fairness. It was the subject of a comprehensive treatment by the Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014] UKSC 56, though it is not clear whether Lord Wilson’s more expansive […] Read more

I am rusty on civil procedure — because I do not pay enough attention to Karim Renno’s torrent of excellent posts! — but I think I am entitled to a response to his reply to my defence of deference on questions of procedural fairness. Whether he wants a sur-reply is up to him; by then […] Read more

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 […] Read more

It seems to be, post-Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 245. First, the facts. The Board conditionally approved a major pipeline project to be completed by Enbridge. There are various challenges to the decision pending before the courts. This challenge concerned a number of matters that could fairly be described as […] Read more

Canadian courts are to take five factors into account in determining the content of procedural fairness in any given case. One of these factors is whether the applicant had any legitimate expectation about the procedure to be followed. I have always found this unusual. Surely once an applicant establishes that a legitimate expectation has been […] Read more

Canadian administrative law is different in many ways from that of other Commonwealth jurisdictions, but on one question it (for the most part) clings doggedly to an old mantra: procedural questions are for the courts alone to decide, without any deference to decision-makers. This orthodoxy has recently been challenged as a matter of principle. But […] Read more