Professional Documents
Culture Documents
Chapter 8
The Reach of Procedural
Fairness Rights Minh Tran
April 2009
Administrative Law
Concerned with:
Regulation of governmental power in the
state's relations with individuals
Exercise of statutorily authorized powers by
designated actors
Law governing the implementation of public
programs, especially at the point of delivery
(where they have most immediate impact
on people)
Administrative Law
Application of Act
Section 3.(1): Subject to subsection (2), this Act applies
to a proceeding by a tribunal in the exercise of a statutory
power of decision conferred by or under an Act of the
Legislature, where the tribunal is required by or under
such Act or otherwise by law to hold or to afford to the
parties to the proceeding an opportunity for a hearing
before making a decision.
Ontario SPPA Cont.
Where Act does not apply
Section 3(2): This Act does not apply to a proceeding,
(a) before the Assembly or any committee of the Assembly;
(b) in or before,
(i) Court of Appeal; (ii) Superior Court of Justice; (iii) Ontario Court of Justice,
(iv) Family Court; (v) Small Claims Court, or (vi) a justice of the peace;
(c) to which the Rules of Civil Procedure apply;
(d) before an arbitrator to which the Arbitrations Act or the Labour Relations Act
applies;
(e) at a coroner’s inquest;
(f) of a commission appointed under the Public Inquiries Act;
(g) of 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; or
(h) of a tribunal empowered to make regulations, rules or by-laws in so far as its
power to make regulations, rules or by-laws is concerned.
Waiver
Section 4.(1): Any procedural requirement of this Act, or of another Act or a regulation
that applies to a proceeding, may be waived with the consent of the parties and the
tribunal.
Procedures in the Relevant Legislation
Judicial v. Administrative:
For many years the essential test for assessing whether or not a
hearing was required was based on the distinction between judicial or
quasi-judicial bodies, on the one hand, and purely administrative
bodies on the other.
This was a very difficult distinction to apply in practice, and the courts
never provided clear direction as to what constituted judicial or
administrative bodies.
The Common Law
Modern Canadian Administrative Law
Has returned to the functional base that characterized Cooper.
Key cases:
Nicholson
Minister of National Revenue v. Coppers & Lybrand
Knight
Canadian Association of Regulated Importers v. Canada
Re Webb
Baker
Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police
Facts: Nicholson was fired from his job as police officer while
he was still on probation as a new employee (less than 18
months).
- The relevant legislation provided that police officers are
entitled to a hearing before being dismissed, unless they
are still in their 18-month probation period.
Legal Principles:
Distinction between judicial and administrative functions
should no longer determine procedural claims
Duty to act fairly could apply to purely administrate
functions as well.
Decision: Nicholson was entitled to an opportunity
(whether orally or in writing) to respond to criticisms of his
performance before he was dismissed.
Minister of National Revenue v.
Coppers & Lybrand
There may be some cases where the distinction between
judicial, quasi-judicial and administrative functions will
matter.
Case provides a list of non-exhaustive factors that if
answered in the positive, indicate a judicial or quasi-
judicial function. Example of the factors include:
Is the issue at stake one that requires the application of
specific rules to a particular case (as opposed to one of
broader social or economic policy)?
Does the decision affect the rights and obligations of the
applicant?
Other Important Principles
Emerging from Case Law:
However, note that courts have had difficulty with the drawing the line between broad
policy-based decisions and more narrow individualized decisions
Facts: Minister changed the allocation of import quota for hatching eggs and chickens
-the importers said that they should have been given notice of this change and the
opportunity to respond…
Court of Appeal: changing quota policy was a legislative or policy decision = no procedural
fairness obligations exist
Take Away Point: There is still a great deal of uncertainty and clarification from the
Supreme Court of Canada is needed!
Other Important Principles Emerging
from Case Law: