Module 10: "Triggers" for Common Law Procedural Fairness

[Music] welcome to module 10 of administrative law I'm Craig forces in the last module we began our discussion of common law procedural fairness focusing first on the historical evolution of a ministry of law procedural protections at common law we saw that by the late 1980s the Supreme Court of Canada had established first that something called procedural fairness existed and that there was no need anymore to distinguish between it and the older concept of natural justice and the Supreme Court had established a trigger of sorts that is a test for when this common law procedural fairness

concept applied a decision of a delegate that affected the rights privileges or interests of an individual but there was also a caveat this duty of procedural fairness did not apply to an administrative decision that was of a legislative nature now in this module we need to explore this idea of a trigger in greater detail and in fact we'll look at two separate common law triggers first this standard from the Cardinal case of rights privileges or interests and second something called legitimate expectation and so our first trigger the trigger I'll call the interests trigger let me

share with you some passages from Supreme Court of Canada decisions concerning common law procedural fairness they'll give you some sense as to the elements and expectations and exceptions in terms of the application of this interest trigger for common law duty of fairness supplements existing statutory duties and fills the gap where procedures are not provided for explicitly that's the Green decision from the Supreme Court in 2017 note how it harmonizes with that conversation we had in the last module about the common law supplying the omission of the legislature filling the gaps in terms of procedural protections

the fact that a decision is administrative and affects the rights privileges or interests of an individual is sufficient to try the application of the duty of fairness that's from the Baker decision from 1999 and again consistent with that Cardinal threshold of rights privileges or interests public decision-makers are required to act fairly in coming to decisions that affects the rights privileges and interests of an individual that's from Dunsmuir 2008 but there are some buts there are some exceptions the doctrine of procedural fairness has been a fundamental component of Canadian administrative law for over 30 years as

a general common law principle it applies to every public authority making an administrative decision which is not of a legislative nature and which affects the rights privileges and interests of an individual subject of course to clear statutory language or necessary implication to the contrary that's from the Mavi decision in 2011 and note two of the passages which I emphasize with my voice as best I could a decision that is not of a legislative nature and next the reference to procedural fairness perhaps not applying where contrary to clear statutory language or language that precludes procedural fairness

by necessary implication some hint there that the common law may give way if the statutory language precludes the application of the common law procedural fairness rule that shouldn't be too surprising to you you know enough about the common law by this point in your studies you know that an assisstant predicated on parliamentary supremacy the common law can be overridden by a statutory provision we'll come back to that in the context of procedural fairness in a few moments another passage but the duty of fairness is engaged only if the decision-maker makes a decision that affects the

rights privileges and interests of an individual by for example imposing a suspension not when it acts in a legislative capacity to make rules of general application in the public interest that's from Greene a decision of the Supreme Court from 2017 so there we have that invocation of a legislative decision but there's some sense here - what that means a legislative capacity making rules of general application in the public interest a hint there that will need to come back to here's a passage from the Federal Court of Appeal in 2020 a case called Olney AK it

is axiomatic that a common law anyone whose rights privileges and interests are affected by an administrative decision is absent valid legislation to the contrary entitled to procedural fairness AHA once again that suggestion that the common law can give way in the face of contrary instructions in a statute and then a final passage this one from Knight versus Indian head school board from the Supreme Court in 1990 and we'll be coming back tonight a decision of a preliminary nature will not in general trigger the duty to act fairly whereas a decision of a more final nature

may have such an effect ah so that suggests yet another exception in terms of circumstances where the common law duty of procedural fairness may not apply all right so those were a lot of passages let's try to unpack them and organize them in some sort of systemic way and so I'm gonna actually propose a system drawn from Knight versus Indian head school board it's what I call the knight three prong trigger and so this is again we're focusing on the trigger that stems from an interest being affected by the decision-makers decision but we're gonna package

it into three tranches or three sub tests and I'm gonna rearrange the order slightly from what one finds in Knight and so I'm gonna put the first prong of the knight case I'm gonna put it last and so the order I'm gonna propose to you the first consideration number one and Knight they talked about the relationship between the employer and the employee don't worry about that that was tied to the facts really what I'm going to talk about in this first prong I'm gonna translate it as the nature of the power being exercised this seems

common sensical because this is a course on administrative law and as you'll recall from my show me the power of mantra were really concerned here with delegates who are exercising power pursuant to a statute or every once in a while the Royal Prerogative and so we're talking here about the power being a public power delegated power pursuant to a statute or the world raghav and so effectively except in those rare instances where we're talking about the Royal Prerogative we're talking about statutory decision-makers and so administrative law the doctrine of fairness obviously only applies to those

sorts of people because otherwise we wouldn't be talking about administrative law and so the first aspect of this three prong night test is really the nature of the power be exercised is it a public power is it a power pursuant to a statute or more rarely the royal prerogative now I'm gonna add a footnote here just as an aside and as an aside there are instances where courts have invoked rudimentary administrative law concepts and grappling with the affairs of private bodies like real estate boards or golf clubs or other forms of associations now those are

not bodies exercising public power they're not statutory delegates however the courts have by analogy reached back into a ministry of law I'm drawn out concepts that look a little bit like procedural fairness they aren't technically administrative law doctrines but they have drawn inspiration from them and the courts are going back and forth on this jurisprudence on this is not consistent you can find jurisprudence for example about the extent to which procedural fairness concepts apply say to political parties who are effectively in our system private clubs all right so that's all I'm gonna say about the

first prong of the night three prong the nature of the power being exercised second prong the impact of the decision now night itself talks about rights it suggests that there is a duty of procedural fairness only where rights are at issue by which it means that the decision is a significant one and has an important impact on the individual but this position from night itself requires considerable qualification rights in this context is not restricted to claims that are pre-existing legal rights of the sort you would find say by virtue of a contract remember that Cardinal

language rights yes but also privileges and interests privileges and interests means that procedural fairness can reach such things as while say the opportunity to receive a license or to engage in a profession or to enter Canada from a foreign state procedural fairness comes up quite a bit in in law as Hals buries laws of Canada puts it today the duty of fairness applies to suspensions the refusal of discretionary benefits investigations public inquiries referrals to hearings and recommendations in short the duty to act fairly may apply to any administrative decision that could significantly influence the ultimate

decision or expose the individual to some other harm that's a low threshold generally if someone is sufficiently affected enough to have standing on judicial review they're likely to have enough of an interest in a decision to attract procedural fairness their exceptions to that but those will be rare okay so let me turn to the third and last prong the nature of the decision under this prong the Supreme Court in Knight suggested two exceptions first that procedural fairness would not apply to preliminary decisions and second that procedural fairness would not apply to so-called legislative decisions so

turning first to this preliminary decisions issue Knight says no fairness in relation to preliminary decisions but again this grossly overstates the case there are cases where delegates are just conducting investigations and just making recommendations where they are obliged to act fairly preliminary decisions are subject to the rules of procedural fairness if again and I'll use that passage from Hall's burries laws of a Canada they are decisions that could significantly influence the ultimate decision or expose the individual to some other harm all right so if it's a preliminary decision yes pause look at it decide whether

procedural fairness applies in most cases it will apply if that preliminary decision will have a significantly large impact on the ultimate outcome if it's a recommendation from a investigative body but that recommendation is almost certain to be adhered to by the final decision-maker well procedural fairness should apply to that preliminary decision-making process that leads to the recommendation turning to the second exception in terms of the nature of the decision the so called legislative decisions as I've said procedural fairness rarely applies to the exercise so-called legislative powers we've seen that repeatedly in the passages I've shared

with you this concept of legislative powers creates huge confusion when teaching administrative law now I just want to remind you a ministry of law is about the powers of the executive not the legislature and so this reference to legislative powers in this context does not mean the things that the legislature does we are not talking about Parliament we're still talking about the conduct of the executive we're still talking about public officials who are exercising statutory power except in those rare circumstances where an issue might be the world prerogative either way we're talking about the executive

so how is it that the executive can wield something called legislative powers well you will call from our discussion in the first few modules that the legislative branch has enormous powers to delegate power to the executive and it's now routine for Parliament to delegate legislation making powers to delegates in fact it's not uncommon for the legislature to enact legislation providing for the making of regulations by the executive governing some sphere of activity and we looked at examples in the first modules of this course where statutes provided to the executive the power to make regulations we

call this more generically rulemaking power the power to make rules that look and walk and talk like legislation that Parliament might enact but in fact constitutes subordinate or delegated legislation made pursuant to a statute of Parliament or the provincial legislature that empowers the executive to make this form of delegated legislation in other instances Parliament may provide to the executive the power to decide matters on a broad discretionary basis discretionary powers look for that word may sometimes these discretionary powers are so broad that Parliament has delegated to the executive the power to make decisions on broad

grounds of Public Policy ministers for example may be given powers to make public policy decisions in the Martineau case justice Dickson made the fall in comment about these sorts of broad policy based Delhi powers he said a purely ministerial decision on broad grounds of public policy will typically afford the individual no procedural protection similarly public bodies exercising legislative functions may not be amenable to judicial supervision at least on procedural grounds so wonderful there's these classes of decisions out there for which there are no common law standards of procedural fairness if they're of a sufficiently general

that is legislative nature well how we decide if we're gonna classify these powers into this camp of legislative we need some better definitions so how do we define this concept of legislative better well the easy sorts are those legislative decisions that look and walk and talk a lot like what we expect legislation to look like namely rulemaking that is circumstances where Parliament or the provincial legislature have said to the delegate you can make regulations or you can make rules governing XYZ in those sorts of circumstances we clearly have a legislative decision fine that's the sort

of legislative decision to which procedural Ferris will not attach what about this other concept of broad policy based discretionary decision-making how do we know if that's a legislative power or not well let's start with a definition that's offered by the English administrative lawyer de Smith a legislative act is the creation and promulgation of a general rule of conduct a general rule of conduct without reference to particular cases on the other hand a non legislative act which he calls administrative just add more confusion here cannot be exactly defined but it includes the adoption of a policy

the making and issue of a specific direction and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice all right so let's unpack that especially that reference to a general rule of conduct so if we were to summarize the qualities of decisions that qualify for this category of legislative decision we would say first it's usually discretionary look for that word may it's also then second general in its application and so as Hal's burries laws of Canada say usually the power is of a general

application it will not be directed at a particular individual sometimes courts have made this point by talking about something being of public convenience that is it applies to the general public and not a matter of private convenience that is it's not targeted or focused on an individual or specified subset of individuals if the matter is a matter of private convenience that is it's a private concern it's it's focused on a subset of individuals then it's not likely to be a legislative decision and so the more personal the focus of the so-called legislative decision the more

likely it is that the delegates power loses that legislative nature and becomes more amenable to the application of common law procedural fairness and then a third requirement a third requirement in terms of the legislative decision making it's got to be based on the exercise of judgment after assessing public policy considerations remember courts don't really like to be perceived as making policy choices so three things again discretionary general an application and based on the exercise of judgment focused on public policy considerations those qualities wrap together typically are the qualities that constitute a legislative decision now I

have to add a caveat I have to add an exception to this exception sometimes even a legislative power will attract procedural fairness remember the more personal the nature of the decision the more focuses on an individual or subset of individuals the more likely it is that delegates power loses its legislative nature again the more targets that narrow subset of persons the more it is likely to be perceived as the sort of thing that should attract procedural fairness this is what I call the whole mix exception after a Supreme Court decision called home X in the

home xscape that involved actually the making of bylaws by in a municipality and recall a municipality is a delegate they're not a legislature there are exercising administrative power and they were making a bylaw which looks and walks and talks a lot like what we would expect legislation to look like so this was a form of rulemaking however the bylaw was focused specifically on one individual in this case a company one company whose conduct had to upset the municipality we won't have to sweat the details for our purposes but the bottom line is that the Supreme

Court looks at this decision as by law made by the municipality and concludes the municipality passed the bylaw to go after this company the company was a specific target the fact that the municipality had made a policy decision that had an immediate and specific target prompted the court to say hmmm this isn't really a legislative decision this is the sort of decision to which common law procedural fairness should apply and so the home X exception suggests that even when you're trying to decide whether something is legislative or not it's not enough simply to say hey

this is say a form of delegated legislation you can sometimes pierce that veil and look at the actual impact in order to argue that in fact procedural fairness should attach because there's a narrow subset of individuals who are affected okay there are two other exceptions to procedural fairness I'll just mention very briefly as I've suggested in the passages are shared with you a statutory bar a statute can exclude the application of common law procedural fairness remember that concept of parliamentary supremacy and so if you're saying as a matter of common law procedural fairness it's triggered

I should get a hearing and the statute says no hearing for you while the statute prevails against the common law and then last in terms of exceptions to procedural fairness emergencies there is a body of case law stating that procedural fairness need not be met in emergencies all right let's set aside this first common law trigger and look at the second one called legitimate expectation we know from Cardinal and from the three prong test and night that the classic situation in which principles of procedural fairness apply is where there's some legal right interest privilege at

issue remember the Cooper case you can't demolish my building without meeting the duty of fairness but good public law administration may require more than a duty trigger where some legal right interest privileges affected there might be a need for a separate trigger why because you may have a promise from a delegate that they will act in a certain way and as a matter of procedural fairness perhaps it's in the interest of good administration to oblige the delegate to adhere to that promise otherwise the exercise of administrative power may be cast into disrepute well let me

share with you some passages again from the Supreme Court of Canada this one from a Guerrera in 2013 if a public authority has made representations about the procedure it will follow in making a particular decision or if it has consistently adhered to certain procedural practices in the past in making such a decision the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been and so here a reference to representations or consistent practice equaling a promise that may give rise to this concept of legitimate expectation

here's a passage from Brown and Evans judicial review of administrative action in Canada which is regularly cited with approval by the Supreme Court a legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process of course the practice or conduct said to give rise to the reasonable expectation must be clear unambiguous and unqualified those are important qualifiers and we'll come back to them here's another passage this time from a via 2011 Supreme Court case where a government official makes representations within the scope of his

or her authority to an individual about an administrative process that the government will follow and the representations said to give rise to the legitimate expectation are clear unambiguous and unqualified the government may be held to its word providing the representations are procedural in nature and do not conflict with the decision-makers statutory duty proof of reliance is not a prerequisite in Mavi also the Supreme Court explained what was meant by this reference to clear unambiguous and unqualified by comparing it with the law of contract it said generally speaking government representations will be considered sufficiently precise for

purposes of the doctrine of legitimate expectation if had they been made in the context of private law contract they would be sufficiently certain to be capable of enforcement in other words if the promise is definite enough to constitute something that would create a contract it would be enforceable in contract that would be definite enough to give rise to legitimate expectation now a couple qualifiers the doctrine of legitimate expectation cannot give rise to substantive rights you can't be promised an outcome it's about procedural promises we will see how substantive promises about outcomes you will get the

license you will be allowed to get into Canada those sorts of promises can have an effect on the content of procedural fairness but they do not themselves trigger legitimate expectation okay enough pithy passages from the Supreme Court let's pull the do demand expectation together in terms of a test of sorts where it applies legitimate expectation is a concept of procedural fairness that obliges delegates who promise to proceed in a certain way to in fact keep that promise and for to arise first there must be a promise or representation from a delegate that must be sufficiently

clear unambiguous and unqualified and this can be an express representation or as I've suggested can be adherence to pass practices procedural practices that were followed in the past in making similar decisions so either an express promise or a past pattern of practice second it must be a procedural promise a promise to proceed in a certain way not a substantive promise it's a promise to give you a hearing not a promise to give you a license give you a hearing that's a procedural promise give you a license that's the substantive promise now there is a caveat

to the notion that substantive promises can never be enforced in administrative law it's this concept of public law promissory estoppel it's been raised in a handful of Supreme Court cases it's rarely won it's very very infrequently that you see public law promissory estoppel argued let alone prevail if something of a unicorn in other words in Canadian administrative law but basically it says that where there is sufficiently clear and unambiguous promise about an outcome that a person then relies upon and changes their conduct in response to that can give rise to this estoppel concept obliging the

decision-maker not to go back on their a promise the problem is that the courts have been reluctant to enforce this because to do so would generally circumvent the statutory authorities that the decision-maker is supposed to a minister and so if decision-makers on a lark of their own and says I'm gonna give you a license and the person is detrimental e effective that is they changed their behavior in reliance upon that promise but it turns out that the statute says you don't get a license until you've passed the driving exam for the court to turn around

and say to the applicant yeah yeah you can get a license even though you didn't pass the driver's test because this person made this promise well that would have the effect of rewriting the legislation and courts are not gonna do that okay a couple other things we know about legitimate expectation just to wrap up this module first much like with the regular interests trigger the nine three prong legitimate expectation does not apply to legislative decisions so that concept of legislative it also pertains to this concept of legitimate expectation if the decision is legislative in nature

no legitimate expectation for you and then of course this remains a source of common law procedural fairness legitimate expectation does and so if there's a statutory provision that says no hearing for you a delegate can't turn around and say I'm gonna give you a hearing anyway that won't work if the statute precludes the promise if the statute says the procedure that was promised is unavailable well then the statute prevails and so in the event of a conflict between a promise in the statute the statute will always prevail okay so let's wrap up this module I've

said that there are two common law triggers you need to worry about when it comes to procedural fairness the first is what I've called the interests trigger and there I focused on the night three-prong test ii is legitimate expectation there are requirements for both of these different triggers there are also exceptions for these triggers the bottom line is that the common law only applies to the extent that the statute permits it to apply that puts it on a very different footing than the constitutional concept of fundamental justice in Section 7 of the Charter that then

is the topic of our next module specifically when is section 7 of the Canadian Charter of Rights and Freedoms triggered to extend procedural protections to individuals this ends module 10 [Music]