Administrative Law - Fairness. Girouard v. Canada (Attorney General)
In Girouard v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal commented on the administrative principle of procedural fairness:
 It is well established that the requirements of procedural fairness vary according to the requirements set out by Parliament itself and the procedural choices an administrative agency may make, particularly when the statute itself recognizes the agency’s ability to make its own procedures. It is true that how important a decision is to the affected person must also be taken into account. But, ultimately, what is most important is that administrative decisions are made "“using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision‑maker”": Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 S.C.R. 817 at paragraph 22. See also: Therrien, at paragraphs 87–89; Moreau‑Bérubé, at paragraph 81. Brown v. Canada (Citizenship and Immigration)
 I am well aware of the line of decisions according to which any breach of the principles of procedural fairness, particularly of the right to be heard, must result in the incorrect decision being set aside, without regard to the effect the violation might have had on the decision: Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC),  2 S.C.R. 643 at paragraph 23; Université du Québec à Trois‑Rivières v. Larocque, 1993 CanLII 162 (SCC),  1 S.C.R. 471 at paragraphs 38–53. However, an exception must be made when the error committed by the administrative agency is not determinative and the result would have inevitably been the same if the violation had not occurred: Mobil Oil Canada Ltd. v. Canada‑Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC),  1 S.C.R. 202 at paragraphs 52–55. Many decisions of this Court are to the same effect: see, in particular, Cartier v. Canada (Attorney General), 2002 FCA 384,  2 F.C. 317, at paragraph 33; Robbins v. Canada (Attorney General), 2017 FCA 24; Canada (Minister of Public Safety and Emergency Preparedness) v. Cha, 2006 FCA 126,  1 F.C.R. 409; Stevens v. Conservative Party of Canada, 2005 FCA 383,  2 F.C.R. 315.
In Brown v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal comments on administrative procedural fairness in the immigration detention context:
 Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC),  2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1,  1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).. 1582235 Ontario Limited v. Ontario
 Although the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings "“will merit greater vigilance by the courts”" (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), 1993 CanLII 128 (SCC),  1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.
 Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52,  2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., 1980 CanLII 10 (SCC),  1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.
In 1582235 Ontario Limited v. Ontario (Ont CA, 2020) the Divisional Court stated the appellate approach to deciding issues of administrative procedural fairness:
 The parties agree that there is no standard of review in respect of procedural fairness issues. Rather, it is for the court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration.. Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks
In Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks (Ont CA, 2020) the Divisional Court heard a judicial review application from a wind energy firm. The decision to be reviewed was that a Ministerial appeal from an Environmental Review Tribunal (ERT) ruling [the appeal was conducted by the Minister of the Environment, Conservation and Parks under s.145.6(2) of the Environmental Protection Act]. The main issue was whether the decision of the Minister, made on evidence on issues that were not argued at the ERT hearing, denied the appellant procedural fairness::
 With respect to procedural unfairness, Nation Rise argues that the Minister failed to provide adequate notice that harm to bat maternity colonies was an issue on the appeal. Thus, he breached the principle of audi alteram partem - that is, the right of the applicants to address the issue in a meaningful way, with reference to material in the record. Nation Rise also argues that the failure to provide a separate hearing with respect to remedy was a denial of the right to be heard. Finally, it submits that the Minister’s decision gives rise to a reasonable apprehension of bias.. Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks
 In Vavilov at para. 77 the Supreme Court confirmed that “[t]he duty of procedural fairness in administrative law is “‘eminently variable’, inherently flexible and context-specific”. The non-exhaustive list of factors that inform the content of that duty include “(1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or the individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself” (the “Baker factors”).
(i) The Nature of the Decision Being Made and the Process Followed in Making It
 In this case the Minister submits that the nature of the decision being made was consistent with minimal procedural fairness as it was a ministerial decision closer to the policy end of the spectrum. In Martineau v. Matsqui Institution, 1979 CanLII 184 (SCC),  1 S.C.R. 602 at 628, Dickson J., as he was then, found that this rule applies to “purely ministerial decision[s]”. However, such decisions were distinguished from those of a judicial or quasi-judicial nature in which individuals were entitled to substantial procedural fairness (ibid at pp. 628-629).
 According to the Minister, the use of the phrase “in the public interest” in s. 145.6(2) makes it clear that the “appeal” to the Minister was not to be considered judicial or quasi-judicial in nature. We have rejected this submission in dealing with the Minister’s authority to raise new issues on the appeal. Further, the Minister’s decision makes it clear that in deciding the issue of whether the “harms test” had been met he did not consider the public interest.
(ii) Nature of the Statutory Scheme
 The Minister’s appeal is the last appeal provided for in the statutory scheme. According to Baker, this supports the imposition of a higher standard of procedural fairness.
(iii) Importance of the Decision to the Individual(s) Affected
 The Minister’s decision is an important one – both to the proponent of the Project (Nation Rise) and to the appellant before the Minister (CCNS). This too supports a higher standard of procedural fairness.
(iv) Legitimate Expectations of the Persons Challenging the Decision
 Both the past practice of the Minister and the proposed procedure outlined by the Minister in this case gave rise to a legitimate expectation on the part of all parties that they would have the right to notice of the issues that were of concern and the opportunity to meaningfully address those issues.
(v) Choice of Procedure Followed by the Minister
 The Minister submits that deference should be given to his choice of procedure because the procedures on appeal are not constrained by statute (other than the requirement that the appeal be in writing). However, the Minister, like other administrative decision-makers, is still required to comply with common law duties of fairness, unless those rules have been ousted by express statutory language or by necessary implication (which they have not) (Re Webb and Ontario Housing Corporation (1978), 1978 CanLII 1490 (ON CA), 22 O.R, (2d) 257 (C.A.); Supermarchés Jean Labrecque Inc. v. Québec (Tribunal du travail), 1987 SCC 19). The common law duties of fairness include the duty to give notice and the rule of audi alteram partem, which affords all parties the right to be heard on the salient issues of the case.
 A weighing of the Baker factors leads to the conclusion that the Minister’s duty of procedural fairness was more than minimal. It at least included the obligation to give the parties meaningful notice of the significant issues and the opportunity to address those issues
 In this case CCNS and the Minister argue that Nation Rise was given notice of and the right to be heard on the issue that the case was decided on ̶ bat maternity colonies ̶ because the Minister specifically asked for submissions on bats. This submission ignores the fact that the parties were to restrict their submissions to the errors committed by the ERT, and nowhere in the ERT’s reasons or in the evidence of the experts heard on the issue of bats was the issue of bat maternity colonies discussed in relation to whether the Project would cause serious and irreversible harm to bats. Furthermore, the issue of bat maternity colonies was neither raised nor discussed by any of the parties in their submissions to the Minister. Therefore, how can it fairly be said that Nation Rise knew or ought to have known that the Minister might decide the appeal because of a concern about bat maternity colonies? Finally, the argument that Nation Rise made a “strategic” decision not to file the Pre-Construction Monitoring Report makes no sense, given the contents of that report. In fact, given that the Report addresses the issue of bat maternity colonies, the fact that the Report was not filed supports Nation Rise’s position that it did not have proper notice of the issue.
 Bat maternity colonies turned out to be the most significant issue in the appeal. In our view the Minister breached his duty of procedural fairness when he failed to give Nation Rise notice of or the opportunity to be heard on the question of bat maternity colonies.
In Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks (Ont CA, 2020) the Divisional Court heard an issue as to whether the decision below by the Minister violated procedural fairness in how it ruled on it's remedy:
 Nation Rise and CanWEA submit that the Minister breached procedural fairness when he failed to give the parties an opportunity to be heard on remedy. According to Nation Rise, a decision-maker must generally give the parties notice about potential remedial options and a chance to make submissions on the issue before ruling on the remedy (see Agrium Vanscoy Potash Operations v. USW, Local 7552, 2013 SKQB 445, where the Saskatchewan Court of Queen’s Bench quashed an arbitrator’s remedial order in the absence of submissions on remedy). In Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2014 ONSC 974 (Div. Ct.), an appeal to the Divisional Court from the ERT, this Court set aside the decision of the ERT to revoke an REA, because the ERT failed to accord the parties procedural fairness by deciding the appropriate remedy without submissions from the parties. On further appeal (2015 ONCA 269), the Court of Appeal upheld the Divisional Court’s finding that the ERT erred in how it dealt with remedy and observed that “parties are not capable of providing meaningful submissions on remedy in the absence of a decision on the substantive merits” (para. 21). This principle applies in an appeal to the Minister.. Green v Law Society of Manitoba
 As noted by Nation Rise, this Court has held that the ERT must not only solicit submissions on remedy, but that it is also incumbent upon it to do so only after it has delivered a decision on the substantive merits. Ostrander involved an appeal under the EPA from a decision of the ERT to the Divisional Court. The Divisional Court set aside the ERT’s decision to revoke an REA and held that the ERT failed to accord the parties procedural fairness by deciding the appropriate remedy without giving the parties an opportunity to address remedy. On further appeal, the Court of Appeal upheld the Divisional Court’s finding that the ERT erred in how it dealt with remedy (at paras. 96-97):
[T]he Tribunal should have provided the parties with the opportunity to address remedy. The potential limitation of the Tribunal's remedial power was a new issue that the Tribunal introduced itself. The parties might have provided helpful submissions…. As the Court of Appeal noted in Ostrander, in the context of an appeal under the EPA, parties are not capable of providing meaningful submissions on remedy in the absence of a decision on the substantive merits.
I also agree with the Divisional Court that, given the broad and varied range of attacks launched against the REA, it was not realistic to expect the parties to address the appropriate remedy at the end of the hearing of the merits without knowing what the Tribunal's findings were in regard to the broad range of alleged harms.
 While the Minister and CCNS argue that Ostrander is distinguishable and that determinations as to procedural fairness owing in an ERT appeal cannot inform the procedural fairness owing in a ministerial appeal, there is no reason why this should be so.
 It is not only the Minister who is directed to consider the “public interest” in making its decisions; the Director is too. Moreover, while the EPA does not contain a specific statutory direction that the ERT is to consider the public interest in its remedial decisions, s. 145.2(1) provides as follows:
Subject to sections 145.3 and 145.4, a hearing by the [ERT] under this Part shall be a new hearing and the [ERT] may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the [ERT] considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the [ERT] may substitute its opinion for that of the Director. As found by the ERT in Prince Edward County Field Naturalists v. Ontario (Ministry of the Environment and Climate Change),  O.E.R.T.D. No. 25 at para. 51 (the case relied upon by CCNS), the wording of this section puts the ERT “in the shoes of the Director” and, thus, it “may consider matters that the Director may consider in respect of the public interest.” Thus, the fact that the statute provides the Minister with the explicit ability to consider the “public interest” is not a reason to distinguish the procedural fairness obligations of the Minister from those of the ERT, which is implicitly given the same authority on the issue of remedy.
 CCNS was clear about the remedy it was seeking – revocation. Nation Rise in its submissions to the Minister did make the statement that, given the wording of the statute, the Minister did not have the authority to revoke or alter the REA. However, it did not argue its position on whether the REA should be revoked, and it did not and could not make a meaningful argument on what alternate remedy the Minister could and should impose until such time as it knew the Minister’s view as to whether there had been an error in the ERT’s decision and, if so, what the nature of that error was.
 The inability of Nation Rise to meaningfully address remedy until it knew the Minister’s conclusion that the “harms test” had been met, and why, is apparent on the facts of this case. The Minister concluded that the harm at issue could not be mitigated by the conditions in place. He did so for a number of reasons, some of which have already been addressed.
 The Minister concluded that the “proposed operational mitigation measures […] only kick in after a significant number of bats, at a rate of ten per turbine per year, are known to have been killed”. If Nation Rise had been given the opportunity to address this concern, it could have pointed out that, in fact, the OMP required under condition Q provided that the mitigation measures would be implemented as soon as the Project began to operate.
 The Minister also found that condition P6 only required monitoring at a minimum of ten turbines, not at all thirty-three turbines. Again, if Nation Rise had been given notice of this concern, it could have pointed out that mitigation measures implemented to protect “Little Brown Myotis [bats]” required that each turbine be monitored monthly during the period from May to September, the period when mortalities, which were not anticipated in any event, may occur. Further, a subset of at least thirty percent of the turbines would be monitored twice weekly from May 1st to October 31st.
 Finally, the Minister found that condition P14 only required that monitoring continue for the first three years. In fact, the OMP required that mortality monitoring specific to “Little Brown Myotis” occur for the first three years and every five years thereafter. If the monitoring in the first three years determined that there were negative impacts to the species, then further monitoring would be considered in years 4 to 6.
 Nation Rise also suggested in oral argument that it might have suggested further mitigation measures as an alternative to cancellation had it had an opportunity to do so – for example, curtailing the Project’s operation through the months when the bats are active.
 These issues go to the reasonableness of the Minister’s decision, but they also illustrate how Nation Rise could not make meaningful submissions on remedy until it knew the Minister’s concerns.
 For these reasons we find that the Minister did breach procedural fairness when he failed to give Nation Rise the right to make submissions on remedy after he had reached his decision that the “harms test” had been met.
In Green v. Law Society of Manitoba (SCC, 2017) the Supreme Court clarifies that the common law administrative duty of fairness exists independent from any delegated rule regime, and can operate to supplement such regimes (eg. to require a hearing where the regime does not expressly do so):
 The common law duty of procedural fairness does not reside in a set of enacted rules. As Brown and Evans explain, “delegated legislation that apparently permits a fundamental breach of the duty of fairness will not normally be found to be exhaustive of procedural rights”: Judicial Review of Administrative Action in Canada (loose-leaf), at topic 7:1512. A statutory decision-maker can always provide for procedures in addition to those set out in a rule in order to ensure that the dictates of procedural fairness are met: see Culligan v. Miller, J. (1996), 1996 CanLII 11286 (NB QB), 178 N.B.R. (2d) 321 (Q.B.), at paras. 23-24; Shewchuk-Dann v. Assn. of Social Workers (Alberta) (1996), 38 Admin. L.R. (2d) 19 (C.A.); Laferrière v. Canada (Attorney General), 2015 FC 612, at paras. 13-14 (CanLII); Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396 (CanLII), 609 A.R. 299, at paras. 58 and 63. However, the common law duty of fairness “supplements existing statutory duties and fills the gap” where procedures are not provided for explicitly: G. Huscroft, “From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review” in C. M. Flood and L. Sossin, eds., Administrative Law in Context (2nd ed. 2013) 147, at p. 152.. Kachkar (Re)
In Kachkar (Re) (Ont CA, 2014) the Court of Appeal considered, but decided against, the proposition that the Crown was owed a duty of fairness within administrative proceedings (here Ontario Review Board proceedings to decide conditions to be placed on a person committed as 'not criminally responsible'). In the course of the reasons the court usefully reviews the law applicable to the duty of administrative fairness:
 In Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC),  2 S.C.R. 643 at 653, Le Dain J. succinctly defined the circumstances in which the duty of procedural fairness arises:
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. For the duty to arise, several criteria must be met. There can be no doubt that one of these is present here. The Board is clearly a public authority making an administrative decision when it makes its disposition concerning the respondent.
 However, for the purposes of the duty of procedural fairness analysis, I do not think that the Crown can be said to be an individual, nor to have a right, privilege or interest that is affected by the Board’s disposition.
 In my view, the duty of fairness extends to those impacted by the administrative decision-making process in the sense that they have a right, privilege or interest that they can claim as their own that is affected, usually adversely, by the decision. While the jurisprudence has increasingly extended this notion to include, for example, corporations either private or public, see D. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, vol. 2, looseleaf at p. 7-54, the Attorney General representing the Crown sits uncomfortably in this company. Even with an expanded definition, the Crown cannot be described as an individual.
 Nor do I think that the Attorney General can be said to be advancing a right, privilege or interest that the Crown can claim as its own. Indeed, the Attorney General does not purport to rely on a Crown right or privilege to trigger the duty of procedural fairness. Rather, the Attorney General argues that the Crown is owed procedural fairness because of its interest in ensuring as far as possible a Board disposition that is least onerous and least restrictive to the respondent consistent with public safety. In other words, the Crown’s interest is in ensuring compliance with s. 672.54 of the Criminal Code. That is the interest that is said to trigger its entitlement to procedural fairness.
 In my view, the Attorney General does not advance an interest that the Crown can claim as its own. What is being asserted is the public interest, not a private interest. This is to be contrasted with the respondent’s liberty interest, which is clearly his own and equally clearly affected by the Board’s disposition.
 Nor can it be argued that the interest asserted by the Crown is adversely affected by the Board’s disposition. The Criminal Code requires the Board to comply with s. 672.54. It must ensure that its disposition is least onerous and least restrictive to the respondent while protecting public safety. The Crown can hardly claim that a disposition that does so adversely affects the interest the Crown advances so as to trigger an entitlement to procedural fairness. If the Crown considers that a disposition does not do so, its right is to appeal on the grounds of unreasonableness rather than assert a breach of procedural fairness.
 To summarize, I do not think that the circumstances of this case place on the Board a common law duty of procedural fairness to the Crown. What remains to the Crown are the procedural protections offered to the Attorney General by the provisions of the Criminal Code.
 If I am wrong, and the Crown is owed a duty of procedural fairness by the Board, the content of that duty must be determined in the context of this case. In Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48 (CanLII), 2004 SCC 48,  2 S.C.R. 650 at para. 5, McLachlin C.J. said this:
The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 S.C.R. 817. In my view, the decisive factor in these circumstances is the third one, the importance of the decision to the individuals affected. In the words of McLachlin C.J. at para. 9, “[t]he stringency of procedural protection is directly proportional to the importance of the decision to the lives of those affected and the nature of its impact on them.”
 The importance of the Board’s decision to the Crown relates directly to its interest in ensuring so far as possible that the disposition is least onerous and least restrictive to the respondent consistent with public safety. However, that interest is fully protected by according to the Attorney General the opportunity to urge upon the Board the disposition that the Attorney General says will achieve this result. The Attorney General had that opportunity in this case. Procedural fairness requires no more. Protection of the interest advanced by the Attorney General does not require that the Attorney General be given the right to make submissions about the community access condition before the Board attaches it to the disposition. That would not enhance protection of the interest relied on by the Crown. Thus, even if the Crown is owed a duty of procedural fairness by the Board in the circumstances of this case, I would conclude that the duty was met.
 In short, even though it might have been desirable for the Board to offer a more fulsome explanation of why it went beyond the joint submission, I conclude that the Crown’s procedural fairness argument fails.