Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Fairness - Bakers - Basics (3)

. Danso v. The Human Rights Tribunal of Ontario et al.

In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court sets out the basic Baker doctrine, here in the unusual context of an administratively-declared 'vexatious litigant' whose tribunal case (and JR) were still heard:

[56] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court stated the following, at para. 22:

Although the duty of [procedural] fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, … the purpose of the participatory rights contained within the duty of procedural fairness is to ensure 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 to put forward their views and evidence fully and have them considered by the decision-maker.

[57] Several factors have been recognized, and enumerated in Baker, that determine what is required to fulfill the duty of procedural fairness. The list of factors in Baker are non-exhaustive, but the five main factors to be considered are: paras. 23-28.

1. The nature of the decision being made and the process followed in making it.

2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.

3. The importance of the decision to the individual or individuals affected.

4. The legitimate expectations of the person challenging the decision.

5. The choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.

....

[63] This Application should not have been processed by the Tribunal given the failure of the Applicant to properly comply with the order dated March 1, 2019, declaring him to be a vexatious litigant. The Tribunal went out of its way to provide the Applicant with a full right to be heard even though it could have simply refused outright from the filing of the Application to consider same.

[64] In reviewing the factors in Baker, the nature of the decision was taken into account. It was noted that the Applicant required leave because he had been declared a vexatious litigant. The administrative error was corrected by providing the Applicant with a full opportunity to make submissions on the issue of leave.

[65] The decision comparts with the statutory scheme prescribed for Reconsideration applications.

[66] It is a given that the issue was of importance to the Applicant. For that reason, he was provided an opportunity to make proper leave submissions.

[67] That the Applicant chose to ignore that invitation and yet again attempt to re-state his case does not give rise to an issue of procedural unfairness.

[68] This accounts for the expectations of the Tribunal that the Applicant would follow the procedure to have a matter considered for leave in essence, the refusal of the Applicant to accept that his first three Applications had failed and he had been declared a vexatious litigant does not support a suggestion of procedural unfairness in circumstances where the Tribunal has clear authority to determine its own procedure.

[69] As set out in Baker at para. 27, it is noted that:

Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedures made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, in the circumstances: Brown and Evans, supra, at pp. 7-60 to 7-70. While this of course is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: I.W.A. v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 per Gonthier J.

[70] For these reasons, I have concluded that the Applicant has not established that there was any procedural unfairness in this matter. I would not give effect to that ground of review.

. Desbien v. Jiang

In Desbien v. Jiang (Div Court, 2023) the Divisional Court considers basics of the Baker procedural fairness doctrine:

[13] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), at para. 21, the Supreme Court of Canada wrote:

... the duty of procedural fairness in administrative law is "eminently variable", inherently flexible and context-specific. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances ...

. Mirza et al. v. Law Society of Ontario

In Mirza et al. v. Law Society of Ontario (Div Court, 2023) the Divisional Court briefly canvasses basics of the Baker procedural fairness doctrine:

[22] The concept of procedural fairness is “eminently variable and its content is to be decided in the specific context of each case”: Baker v. Canada (Ministry of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 21. In Baker, at paras. 23-27, the Supreme Court of Canada set out a non-exhaustive list of five factors, that inform the content of the duty of fairness, which we will now address. In this case, applying the factors, it was a violation of procedural fairness to cancel the Applicants’ registration in the licencing process without having held a hearing.

. Yan v. 30 Forensic Engineering Inc.

In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court briefly summarized the 'Baker' fairness doctrine:

[30] To begin with, there is no question that the HRTO owed Ms. Yan a duty of procedural fairness. What must be assessed is whether that duty was met. The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27 identified several relevant factors to assess the level of procedural fairness: 1. The nature of the decision being made and the process followed to make it; 2. The nature of the statutory scheme; 3. The importance of the decision to the individuals affected; 4. The legitimate expectations of the person challenging the decision; 5. The choices of procedure made by the agency itself, especially if the statute leaves the decision-maker with the ability to choose its own procedures or when the agency has expertise to determine the procedures that are appropriate in the circumstances.

[31] Also in Baker, at para. 22, the Supreme Court of Canada observed that the:

purpose of the participatory rights contained within the duty of procedural fairness is to ensure that the 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.