PROCEDURAL FAIRNESS & LEGISLATIVE DECISIONS

LIMITATIONS ON THE APPLICATION OF THE DUTY OF FAIRNESS

A. THE DUTY DOES NOT APPLY TO LEGISLATIVE DECISIONS

Re Canada Assistance Plan (B.C.) "the rules governing PF do not apply to a body exercising purely
legislative functions"
o court never explained what it means by legislative functions, but it is clear that primary
legislation, whether passed by Parliament or a provincial legislature, is not subject to a duty of
fairness. It is not exempt bc it has no impact on rights, privileges, or interests. Whereas,
legislation is likely to have a profound impact for large numbers of people because it
applies GENERALLY.

Wells v. Newfoundland - explained rationale for exempting legislative functions from the duty of
fairness
o "Legislative decision making is not subject to any known duty of fairness. Legislatures are
subject to constitutional requirements for valid law-making, but within their constitutional
boundaries, they can do as they see fit. The wisdom and value of legislative decisions are
subject only to review by the electorate."

Authorson v Canada (AG) - no one has the right to prevail in the political process, no matter how
sympathetic his or her cause may seem.
o Parliament passed legislation retrospectively limiting the amount of money owed to disabled war
veterans-- decades of interest on pension and benefit funds-- to whom the Crown owed
fiduciary duties. The law affected thousands of veterans, non of who was given notice of the
proposed change to the law.

1. Are Cabinet and Ministerial Decisions Covered by Legislative Exemptions? (Cabinet and
Cabinet Appeals)
o Cabinet and Ministerial decisions are not subject to the legislative exemption per se, but it
will often be easy to characterize Cabinet and ministerial decisions as LEGISLATIVE IN
NATURE, and as a result, they will be exempted from the duty.
o
o

Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] 2 SCR 735 (Can.)
Estey J considered the Cabinet's power to be legislative in nature, in part because the
legislation authorized Cabinet to overturn a decision of the CRTC on its own motion. This, he
said, was "legislative action in its purest form".
Criticised on the basis that it overstates the difficulties inherent in applying the DofF to
Cabinet decisions. After all, the duty is flexible and its content could be tailored
Facts: In 1976, Bell applied to increase their rates. CRTC has authority to approve rate
increases and does so Governor in Council has discretion to vary or rescind such orders
by CRTC. Inuit Tapirisat (IT) intervened to CRTC to oppose part of Bells application.
When case went to Cabinet, IT not given opportunity to make submission on their own
behalf. Minister dismissed appeal.
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Claims: IT argue hearing should have been given, and had it been given it did not
comply with principles of natural justice.
Crown argues that IT had already had opportunity to make submission to Bell and
CRTC. Also, decision of Cabinet was of legislative nature, and statutory provisions did
not provide procedural safeguards and so no protections were owed as a matter of law.
Issue: Does the Governor in Council have a duty to observe natural justice, or even a
duty of fairness, when reviewing regulatory decisions?
Holding: NO (Canada/CRTC/Bell wins)
Estey J for the SCC: Court is to look at the statutory provisions for procedural
requirements for Cabinet to provide notice to groups such as IT.
Statute delegates to CRTC the function of approving rate hikes with directives on
standards to be applied. Secondary delegation of this function is to the Governor in
Council, but without any standards or guidelines.
Cabinets decision to give a hearing to IT is not an obligation, but a discretion that
can be taken. This b/c Cabinet is at the high end of policy making spectrum. Also b/c this
kind of decision is a political-policy one since it will potentially affect all inhabitants of
Canada and must factor competing interests
To provide hearing to reps of Inuit T would mean potentially to provide hearing to anyone
and everyone with complaint for the rate increase.
The duty to observe procedural fairness need not be express, but this doesnt
mean it will be implied in every case.
Statute gives Governor in Council complete discretion provided he observes its
jurisdictional boundaries, this means there is no need to hold any kind of hearing or even
acknowledge the receipt of a petition.
Considerations would be different if the executive had been assigned a function
performable in past by Parl. itself and the subject-matter is not an individual concern or a
right unique to the petitioner.

Idziak v Canada (Minister of Justice) - the Court has emphasized the unique role and
responsibilities of the executive branch as a reason for not extending the DofF to ministerial
decisions.
"Parliament chose to give discretionary authority to the Minister of Justice. It is the
Minister who must consider the good faith and honour of this country in its relations with
other states. It is the Minister who has expert knowledge of the political ramifications of
an extradition decision. In administrative law terms, the Minister's review should be
characterized as being the extreme legislative end of the continuum of administrative
decision-making."
Decisions involving particular individuals are most likely to give rise to the application of the Dof
F to Cabinet and ministerial decisions, but, as Idziak demonstrates, the Court may be reluctant
to impose procedural reqs for a variety of reasons.

2. Is Subordinate Legislation covered by the Legislative Exemption? (Bylaws and Rulemaking)

o Political self-interest often ensures that consultation occurs prior to the passage of legislation,
even where there is no formal requirement of it. There will, however be times when it is not in
the political interest to consult before legislating.
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In general, the courts have not imposed procedural requirements in the subordinate lawmaking function (Andrew Green, Ch. 4, Regulations and Rule Making: The Dilemma of
Delegation)

EXCEPTION: Homex Realty and Development Co v Wyoming (Village) 1980 SCR: SCC
concluded that passage of a municipal by law was subject to the DofF.
Why? Bc it was clear that the village's motivation for passing the bylaw was an ongoing
dispute it had with a particular developer.
Facts: Dispute between municipality and Homex about obligation to install services in a
subdivision owned by H. Without giving notice to H, the municipality made a bylaw under
the Planning Act, designating the plan as a plan deemed not to be a registered plan of
subdivision. The effect of this designation was that lots in the subdivision could not be
conveyed unless a new plan was registered or consents were obtained from the
committee of adjustments of the municipality and, in either way, the municipality would
have been able to impose conditions.
H made an application for review to quash the bylaw and succeeded. An appeal by the
municipality also succeeded, and H appealed to SC.
Note: this bylaw affected exclusively the subdivision of H, not the entire municipality
Held: that the village was not allowed to couch its action in a form designed to oust the
application of the DofF.
Note: Substance more important than form where the legislative exemption is
concerned.
The majority of the Court characterized the bylaw as quasi-judicial rather than legislative
in substance.
Justice Dickson (dissenting on remedial point): put the case for PF more simply: "what
we have here is not a by-law of wide and general application which was to apply to all
citizens of the municipality equally. Rather, it was a by-law aimed deliberately at limiting
the rights of one individual, Homex. I would hold that H was entitled to some procedural
safeguards. This does not mean that the municipality was under a duty to observe the
procedures appropriate to a court of law. But, at a minimum, it was under a duty to give
Homex notice of the proposed by-law and the opportunity to be heard."
Estey Held:
It is clear that the passage of the bylaw, if effective, has stripped H of its freedom to
exercise the right of conveyance given by the provincial planning statute.
Statute does not expressly require notice to the affected landowners. Council was aware
the H would oppose such bylaw. The bylaw had some characteristics of a community
interest
I would conclude that the action taken by the council was not in substance legislative but
rather quasi judicial in character so as to attract the principle of notice and the
consequential doctrine of audi alteram partem.
Estey agrees with Dickson J that the hearing requirement was not satisfied because H
did not know that the municipality intended to ass bylaws but argument about conduct
was accepted.
The majority concluded that H was not entitled to relief because of the inconsistent and
evasive conduct of its principals.
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Dickson J (dissenting):
Long line of authority which establishes that before a public body can limit or abrogate
the property rights of citizens, it must first give the individuals concerned an opportunity
to be heard. This is long-standing principle of PF.
Where statutory body seeks to limit property rights, Courts will imply the right to be heard
unless there is an express declaration to the contrary. No such declaration here, Homex
should have been heard.
The Municipality argues that it was exercising a legislative function. Dickson J
disagrees. The right to a hearing does not spring from there being competing groups, but
from the fact that the by-law interferes with the property rights of one owner. The
presence of a compelling public interest doesnt diminish the citizens right to procedural
protection. If anything, public interest is best served by giving private interests full
disclosure and fair opportunity to be heard. The act cannot be labeled legislative for the
purpose of dispensing with fairness and procedure.
It is unnecessary to classify a process as judicial or quasi-judicial to establish a right to
procedural fairness (based on Martineau and Re Nicholson). Once it is clear that rights
are being affected, it is necessary to determine the appropriate procedural standard that
must be met by the statutory body. This analysis requires flexibility (ie nature of the
functions and facts of each case).
Homex entitled to some procedural safeguards at a minimum to be given notice of the
proposed by-law and the opportunity to be heard.
Ratio:
Spectrum purely ministerial decision, on broad grounds of public policy will typically
afford little/no procedural protection.
Comments:
Take from this case that By-law is legislative in nature (subset of law). Nevertheless, in
this case, the court found that procedural fairness was owed.
The crucial point in the Homex decision is that the municipality had made a policy
decision that had an immediate and specific target. This suggests that where a by-law or
subordinate legislation of a more general character is being enacted, claims to
procedural entitlements even by those affected immediately may be either diminished or
eliminated.
Unlike Inuit, here we have something that looks like acts of retainder (where law is done
to affect someone in particular).
3. Are Policy Decisions Covered by the Legislative Exemption? (Policy Making)
o The legislative exemption includes decisions that may be described as "policy" decisions as well
as decisions that are general in nature.
o

Martineau v Matsqui Institution Disciplinary Board [1980] 1 S.C.R. 602, Justice Dickson: "[a]
purely ministerial decision, on BROAD GROUNDS OF PUBLIC POLICY, will typically afford the
individual no procedural protection."

Knight v Indian Head School Division No. 19, Justice L'Heureux-Dube: noted that many
administrative bodies have been required to assume duties traditionally performed by the
legislatures, and distinguished "decisions of a legislative and general nature" from "acts of a
more administrative and specific nature".
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The rationale for exempting policy decisions from the duty of fairness is similar to that of
formal legislative decisions. Both are inherently POLITICAL IN NATURE and are, in principle,
subject to political accountability.

Imperial Oil Ltd. v Quebec (Minister of the Environment) 2003: SCC held that in exercising
discretionary power to require an oil company to undertake site decontamination measures (at
its own expense), Quebec's environment minister was performing a political role in choosing
from among the policy options allowed under provincial environmental protection legislation and
was not subject to fairness obligations beyond those in the Act.

Canadian association of Regulated Importers v Canada (AG) 1993 FC

Facts: ministerial decision changing the quota distribution system for the importation of
hatching eggs and chicks, a change that significantly affected historic importers. In
challenging the change, the historic importers claimed that they had not been consulted.
Reed J Held: traditionally, a decision has been classified as being of LEGISLATIVE
nature if it sets out GENERAL rules which apply to a LARGE number of persons.
However, the decision which is challenged sets down rules governing a very limited
segment of the population. The Minister in deciding how to allocate import quota as
exercising a statutory power which had been delegated to him. The effect of the decision
was to cause considerable economic harm to the applicants and others.
There was an IMPLIED PRINCIPLE that Parliament intended that the statutory powers
being exercised WOULD BE exercised in accordance with the rules of fairness, including
notice to the applicants and an opportunity to comment. however
policy/legislation/statute did not have this implied principle.
Arguments were made with respect to the nature of the applicants rights and a
demonstrable interest justifying an application for judicial review.
The applicants may not have had a right to import but, for many years, they had in an
unregulated environment been importing. They had established a position in the market
and an economic viability based on this practice of importing. Thus, establishing an
interest sufficient to found a claim for review.
It was impractical to give those affected an opportunity to comment before its adoption.
it is clear that even if all chick producers and all hatcheries should have an opportunity
to comment, the number of persons affected were not large. It would not have been
impractical to have provided for notice and an opportunity to make recommendations.
Fed Court Held: Notice to Importers was a policy decision only and therefore no notice
was required.
FCA: Generally, the rules of natural justice are not applicable to legislative or policy
decisions. [Inuit Tapirisat and Martineau]
Held that the principles of natural justice are not applicable to the setting of a quota
policy although they may be to individual decisions respecting grants of quotas. It is a
Minister rather than a Board that is establishing the quota. The exercise is essentially a
legislative or policy matter, which Courts do not normally interfere.
It might have been a considerate thing for the Minister to give the respondents notice
and an opportunity to be heard, but he was not required to do so.
What the respondents are seeking here is to impose a public consultation process on
the Minister when no such thing has been contemplated by the legislation.

Vanderkleot v Leeds Grenville (Board of Education) 1985 ONCA

Facts: School boards decision, in the face of declining enrollment, to reorganize three
elementary schools by having students up to grade two attend one school and older
students attend the other two schools.
Under statutory authority, Ontarios minister of education issued guidelines governing the
closing of schools that required public consultation and participation. The board itself
had prepared policies for school closings and a policy statement which required the
board to make the various alternatives known to the school community before making a
decision.
A group of ratepayers challenged the boards decision to relocate students, arguing that
the board had not complied with either the ministerial guidelines or the boards own
policies and that its resolutions relocating the students were void.
CA Held: The relocation did not amount to a school closing and that the guidelines and
policies did not apply
Turning to the claim that the school board had failed to afford the ratepayers PF, the
court held: a board acting [in] good faith within its statutory authority has complete
power over relocation of students within a district and, in so doing, is not affecting the
legal rights of any person. I am not satisfied that the principles of PF are applicable to a
board of education, an elected public body, who, in good faith and within the jurisdiction
assigned to it by the Legislature, resolve to reallocate the student body within its school
district.

Bezaire v. Windsor Roman Catholic Separate School Board (1992)

Facts:The school board decided, in the face of a financial crisis, to close nine schools.
Contrary to ministerial guidelines and to the boards policy on school closings, the
affected parents and students were given no opportunity for input into the decision
before it was made, there was some consultation after the decision was announced
After deciding that the ministerial guidelines were not technically subordinate legislation
(and thus not strictly binding on the board) the Divisional Court considered the parents
claim that the board owed them a duty of fairness.
Held: Court distinguished Vanderkleot on the basis that that case involved a relocation of
students, while this case involved school closures to which the guidelines applied.
Unlike the decision taken by the board in Vanderkleot regarding the allocation of
students which was held not to attract the doctrine of fairness, the guidelines, although
ambiguous and lack the force of subordinate legislation, result in the applicability of the
doctrine of fairness.
While ambiguous, the guidelines read as a whole are clearly premised on the principle
that the closing of a school is the business of the community and the community, one
way or another, must be consulted. The requirements of publicity, public sessions, and
the importance of factors such as the social, cultural and recreation impact of a closure
on the community, make it clear that real community consultation is a condition
precedent to a valid decision.

B. THE DUTY APPLIES TO (FINAL) DECISIONS (Inspection or Recommendation)

it does not apply to investigations or advisory processes that may occur prior to the
commencement of a formal decision-making process.
note: this limitation is reflected in the Ontario Statutory Powers Procedure Act, s. 3(2)(g) procedural requirements do not apply to "one or more persons required to make an investigation and to
make a report, with or without recommendations, where the report is for the information or advice of the
person to whom it is made and does not in any way legally bind or limit that person in any decision he
or she may have power to make."
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 Apparent in Abel, not all recommendatory and investigative functions will attract an obligation of
PF and this is reaffirmed by LHeureux Dube in her judgement in Knight when she states that " a
decision of a preliminary nature will not in general trigger the duty to act fairly". While Abel does
provide us with a useful functional test for discerning the "exceptional" cases in which that duty will be
triggered, it is nonetheless not standard.

Guay v Lafleur [1965]: Guay had no right to a hearing because the function was purely
administrative. L was not deciding or adjudicating.

EXCEPTION: Re Abel and Advisory Board 1979:

o Board created by Cabinet under Mental Health Act, function to review patients charged
criminally. Made report including recommendations of release. X lawyer requests disclosure of
file, which provided a lifetime of incarceration that was held by institution, Chairman refusing to
grant because it did not have jurisdiction to disclose. Application for review failed because
disclosure was clearly prohibited by act.
o ISSUE: Do rules of natural justice apply? YES
o HELD: Decision quashed and matter remitted to board for reconsideration. Chairman needed no
jurisdiction to provide report which Board received pursuant to s.29(4) of Mental Health Act.
o SIGN: Case concerned non-binding reports, case affirms and extends duty of fairness is
required of all persons/bodies exercising power even though power might be classed as admin,
rather than judicial.
Grange J Held:
o CA rejected the argument that the board was only making an administrative decision.
o A patient's only hope for release lies in a favorable recommendation by the Board.
o If counsel for the patient seeks to represent his client properly, one can well understand his
desire, his imperative need, to examine such report.
o The effect of the recommendation of the ARB is for the applicants of most Italian concern.
o De Smith in Judicial Review of Administrative Action: after concluding that the authorities are
often in conflict suggests that the degree of proximity between the investigation and the decision
and the exposure of the person investigated to harm are matters of paramount concern. Here,
the proximity is great. The second test of De Smith is easily met when one considers the effect
the recommendation and its acceptance has on the freedom of the applicants.
o One of the fundamental rules of natural justice is, of course as put by de Smith, "a party must
have an adequate opportunity of knowing the case he has to meet, of answering it and of
putting his own case."
o Even though it is only a recommendation, it has significant weight for the final decision. You
should look at the nature of the persons interest these recommendations are of vital concern
to the detainee. The court creates a proximity test the proximity between the investigation, the
decision, the recommendation and the exposure of the person affected. If there is a high level of
the exposure and investigation is closely linked to the recommendation and the decision there
is sufficient connection it triggers the obligation of df.
o application against ARB must be granted. Decision of the chairman in refusing to order
production of the reports is quashed and the matter remitted to the board for reconsideration.

o
o

Does not mean the documents must be produced. Just that the chairman in deciding whether to
order disclosure should weigh whether disclosure might inflict serious harm on persons directly
concerned, might be a breach of confidence, or might be injurious to public interest.
Ratio LG is not bound to act upon the recommendations in the report. Patients only hope of
release lies in favorable recommendations of the ARB. This is virtually the only chance the
applicants have of avoiding a lifetime of incarceration. Effect of the ARB recommendation is of
the most vital concern.
Note conflict between security concerns of the institution and public versus the patients right
to have access to their information.
Typically recommendation/investigation does not trigger fairness. But where the
recommendation/investigation is so critical to the ultimate decision, fairness may apply.

Dairy Producers' Co-operative Ltd. v Saskatchewan (Human Rights Commission)

o Facts: Following complaint of workplace sexual harassment, the commission appointed officer
to investigate and provide the commission with a report on whether there was a sufficient basis
for recommending the appointment of a board of inquiry to adjudicate (arbitrate, try) on the
complaints. Investigator reported there was probable cause to believe of infringement of Act. As
a consequence, the commission attempted to settle the matter, company provided with full
details of the complaints and the evidence supporting them. The company applied to the court
for (inter alia) orders quashing the establishing of the board of inquiry and the investigator's
report that there was a "probable cause" to believe there had been infringement of the Act.
o Wright J Held: The test to be applied to an investigation was settled in Syndicat des employes
de production du Quebec st de l'Acadie v. Canadian Human Rights Commission [1989]:
"It is not intended that this be a determination where the evidence is weighed as in a judicial
proceeding but rather the Commission must determine whether there is a reasonable basis in
the evidence for proceeding to the next stage. It was not intended that there be a formal hearing
preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from
the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s 36(3)
(a) is metIt was not intended that the Commission comply with the formal rules of natural
justice."

Federation of Women Teachers' Association of Ontario: "these cases makes clear that the duty of
fairness OWED when dealing with an investigative body is TO INFORM an interested party of the
SUBSTANCE of the case against it and ALLOW AN OPPORTUNITY for the responding
representations or submissions. There is no requirement to disclose the whole file, but duty to provide a
fair summary of the relevant evidence ."

C. THE DUTY DOES NOT APPLY TO PUBLIC OFFICE HOLDERS EMPLOYED UNDER CONTRACTS
D. THE DUTY MAY BE SUSPENDED OR ABRIDGED IN THE EVENT OF AN EMERGENCY
The duty of fairness establishes duties must be observed before a decision can be made. However,
there will be circumstances in which procedural requirements cannot be met without risking harm of
one sort or another.
In emergency situations, compliance with the duty of fairness may be suspended until after the
required decision has been made.
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R v. Randolph 1966 Key Case

o Facts: Post Officer Department suspended mail for purpose of investigation without respondents
having heard or without opportunity to object.
o Held: Interim orders validly made pursuant to Section 7 Act after-the-event hearing. Section
enables Post General to act swiftly in performing the duty of protecting public.
EXCEPTION: Cardinal v. Director of Kent Institution 1985:
o Facts: Prison riot. Alleged instigators put in solitary confinement by Director pursuant to
regulation. Review Board recommends release of prisoners into gen. pop, but Dir decides to
keep prisoners in segregation (i) without giving them notice; nor (ii) any opportunity to be heard.
Prisoners sought habeus corpus and certiorari. Held: decision invalid.
o Court held that although the duty of fairness applied to the imposition of isolation or
segregation of prison inmates in "apparently" urgent or emergency circumstances, (the inmates
alleged to have been involved in a hostage taking were transferred to another institution and
placed in isolation to secure prison order), "there could be no requirement of prior notice and an
opportunity to be heard before the decision[T]he process of prison administration, because of
its special nature and exigencies, should not be unduly burdened or obstructed by the
imposition of unreasonable or inappropriate procedural requirements."
o Once a recommendation to end the segregation of prisoners had been made by the review
body the duty of fairness requires that the prison director inform the inmates of his
intended decision to reject the recommendation, provide reasons, and afford them an
opportunity to contest his intended decision.
o Le Dain J. asserted that this Court has affirmed that there is, as a general common law
principle, a duty of procedural fairness lying on every public authority making an
administrative decision which is not of a legislative nature and which affects the rights, privileges
or interests of an individual. Although administrative segregation is distinguished from punitive
or disciplinary segregation under s40 of the Penitentiary Service Regulations, its effect on the
inmate in either case is the same and is such as to give rise to a duty to act fairly. The right to a
fair hearing must be regarded as an independent, unqualified right which finds its essential
justification in the sense of procedural justice which any person affected by an administrative
decision is entitled to have.