Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Fairness - Baker - Importance of Decision

. Stuckless v. Canada (Attorney General)

In Stuckless v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal held that an administrative fairness issue was at the lower end of the Baker spectrum:

[2] Mr. Stuckless alleges that the Federal Court erred in finding that the required level of procedural fairness owed to him was at the lower end of the spectrum and in concluding that his procedural rights were not breached.

....

[4] I have carefully considered Mr. Stuckless’ written and oral submissions. I am not convinced that the Federal Court committed a reviewable error by referring to the decisions in Wojcik v. Canada (Attorney General), 2020 FC 958; Lum v. Canada (Attorney General), 2020 FC 797; and Henri v. Canada (Attorney General), 2014 FC 1141, to find that the degree of procedural fairness owed to Mr. Stuckless in this case was low. The statutory scheme and its purpose, the discretionary nature of the decision and the impact of the decision on Mr. Stuckless all support the Federal Court’s finding.

. Yen v. Office of the Independent Police Review Director

In Yen v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considers factors that feed in the Baker 'degree of fairness' consideration:

Procedural fairness was accorded to the Applicant

[23] The Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 states that the degree of procedural fairness required of any administrative decision maker is to be determined by reference to all the circumstances of that decision. These 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 individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of the procedure made by the administrative decision maker itself.

[24] The legislative scheme of the Police Services Act provides the Director with the discretion to decide not to deal with a complaint under s. 60(1). The summary nature of the initial screening process does not attract a high level of procedural fairness.

[25] The Applicant did not point to any part of that process that was unfair save and except the case coordinator’s initial recommendations being changed upon further review. The fact that the team lead did not agree with the recommendations of the case coordinator does not make the process unfair.

[26] The Applicant’s complaint was received, reviewed by a case coordinator, reviewed again by a Team Lead, with the ultimate decision being made by the Director. That decision was communicated to the Applicant with reasons. The process met the Respondent’s duty of procedural fairness.

. Schram v. Thompson

In Schram v. Thompson (Div Court, 2022) the Divisional Court held that the Baker 'fairness' importance standard for RTA matters was high:

[33] The adjudication of residential tenancy disputes requires a level of procedural fairness "at the higher end of the spectrum": Baker v Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), at paras 28, 30, 4547; Shapiro v Swingler, 2021 ONSC 6191 (Div. Ct.), at paras. 39-42. The right to be heard is a “fundamental precept of our system of justice": See, Duncan v. Toronto Community Housing Corp, 2015 ONSC 4728 (CanLII) at para 2.

. Ford v. University of Ottawa

In Ford v. University of Ottawa (Div Court, 2022) the Divisional Court considered (and allowed!) a classic student case, that of a judicial review of grades.

In these quotes the court notes the Baker fairness issue of the importance of the decision to the applicant::

[54] The degree of procedural fairness required for an administrative decision varies depending on the context. The reviewing court should consider factors such as the importance of the decision to the person affected, the statutory scheme, how similar the procedures are to those of a judicial decision-maker, and the legitimate expectations of the person involved: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at paras. 23-37; Khan v. University of Ottawa, 1997 CanLII 941 (ON CA), 1997 CarswellOnt 2613 (Ont. C.A.), [1997] O.J. No. 2650, 101 O.A.C. 241 at para. 13; Vavilov at para. 77.

[55] Processes that determine issues affecting livelihood or ability to pursue a profession will generally attract a high level of procedural fairness: see Kahsay at para. 2; AlGhaithy at para. 41; Baker at para. 25; Kane v. University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105; Khan v. University of Ottawa, at para. 14.

Brown v. Canada (Citizenship and Immigration)

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:

[136] 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), [1985] 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, [2002] 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).

[137] 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), [1993] 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.

[138] 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, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., 1980 CanLII 10 (SCC), [1980] 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.

. Dr. Rajiv Maini v. HPARB et al.

In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered that the degree of procedural fairness varies with the circumstances of the issue:

[24] The content of the duty of fairness applicable to any given set of circumstances is flexible and variable and will depend on the context. In the investigative context, the duty of fairness does not impose the same obligations as it does at a hearing stage, where the rights of a party are finally determined, and sanctions are potentially imposed. As the Supreme Court of Canada set out in Irvine v. Canada (Restrictive Trade Practices Commission), 1987 CanLII 81 (SCC), [1987] 1 S.C.R. 181, paragraphs 78 and 87.

Fairness is a flexible concept whose content varies depending on the nature of the inquiry and the consequences for the individuals involved ...

Courts must, in the exercise of this discretion, remain alert to the danger of unduly burdening and complicating the law enforcement investigative process. Where that process is in embryonic form engaged in the gathering of the raw material for further consideration, the inclination of the courts is away from intervention.