Simon's Megalomaniacal Legal Resources

Appeal/Judicial Review - Fairness - General

. Kuk v. Canada (Attorney General)

In Kuk v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of "a decision of the Appeal Division of the Social Security Tribunal (SST)" denying the appellant EI (sic) eligibility due to "failure to comply with [SS: 'the employer's'] COVID-19 vaccination policy".

Here the court characterizes the nature of procedural fairness:

[10] Mr. Kuk also argues various breaches of procedural fairness. However, the issues he raises do not concern procedural fairness, in which the ultimate question is whether Mr. Kuk knew the case he had to meet, had an opportunity to respond and had an impartial decision maker consider his case fully and fairly: see Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, 291 A.C.W.S. (3d) 8 at para. 41. Mr. Kuk has given us no reason to doubt that he was given procedural fairness.

. Wepruk v. Canada (Attorney General)

In Wepruk v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal neatly summarized the 'procedural fairness' concern:

[8] The applicant also raises procedural fairness arguments. The standard of review for procedural fairness is best described as correctness, and the ultimate question is whether the applicant knew the case to meet and had a full and fair chance to respond: Watson v. Canadian Union of Public Employees, 2023 FCA 48 at para. 17; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at paras. 54 and 56.

. Finn v. Highland Shores Children’s Aid Society

In Finn v. Highland Shores Children’s Aid Society (Div Court, 2023) the Divisional Court considered the SOR for procedural fairness, here in a JR context:

Duty of Procedural Fairness

[21] There is no standard of review for issues of procedural fairness on judicial review. The reviewing court must evaluate whether the decision-maker adhered to the duty of procedural fairness by (a) assessing the specific circumstances giving rise to the allegation and (b) determining what procedures and safeguards were required to comply with the duty.

[22] As the Court observed in Chapman v. York Region Children’s Aid Society, 2021 ONSC 2620 (Div. Ct.) at para. 40:

The objective of the common law duty of procedural fairness is to provide participatory rights appropriate to the administrative decision being made (Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC 699, at para. 22.) The content of the duty is contextual, as the content of the right of participation varies with such factors as the nature of the decision, the statutory scheme, the importance of the decision to an individual, legitimate expectations about procedure, and the choices of procedure made by the decision-maker (Baker, at paras. 21-28.)

. Ghafari v. Canada (Attorney General)

In Ghafari v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a decision of the Federal Public Service Labour Relations and Employment Board (FPSLREB) that dismissed a "complaint alleging abuse of authority in an internal appointment process". In these quotes the court reviews basics of procedural fairness:

[14] Procedural fairness requires that the person affected by a decision have the opportunity to present their case fully and fairly and to have the decision made in a fair, impartial and open process, appropriate to the context of the decision: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 (S.C.C.) at para. 28 (Baker). However, the requirements of procedural fairness are context specific: R. v. Nahanee, 2022 SCC 37 at para. 53; Baker at paras. 21-22.

[15] When a breach of procedural fairness is alleged, this Court must ask itself whether, having regard to all the circumstances, a fair and just process was followed: Lipskaia v. Canada (Attorney General), 2019 FCA 267 at para. 14; Canadian Pacific Railway v. Canada (Attorney General), 2018 FCA 69 at para. 54; Canadian Pacific Railway Company v. Canada (Transportation Agency), 2021 FCA 69 at paras. 46-47; Gulia at para. 9. Those circumstances include “factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the [decision-maker’s] constituencies”: Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 231.

. Perrin v. Canadian Union of Public Employees

In Perrin v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal considered a JR of a CIRB [Canada Industrial Relations Board] 'duty of fair representation' (s.37 of the Canada Labour Code) decision, here regarding COVID vaccination policy which the union did not grieve.

In this quote the court considers the wholistic nature of a fairness assessment:

[14] When the Court reviews issues of procedural fairness, its role is to determine whether the proceedings were fair in all of the circumstances (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at paras. 54-56). ...