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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Introduction to Fairness

'Fairness' is a common law principle applying to administrative law, generally recognized to have arisen in Canadian law in the case of Nicholson v. Haldimand-Norfolk Regional Police Commissioners (SCC, 1978):
In short, I am of the opinion that although the appellant clearly cannot claim the procedural protections afforded to a constable with more than eighteen months’ service, he cannot be denied any protection. He should be treated “fairly” not arbitrarily. I accept, therefore, for present purposes and as a common law principle what Megarry J. accepted in Bates v. Lord Hailsham[11] , at p. 1378, “that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness”.
As such, 'fairness' is the administrative legal child of 'natural justice', long the nursery for legal concepts not yet concretized by current law. But the undeniably growing field of administrative law, by virtue it's wholesale replacing the courts with statutory tribunals, now existentially rivals the courts. So this history is deceptive, administrative law is bigger than just another new development - it's a radical reform of the courts tailored to accomodate the requirements of advanced capitalism, capitalism that can no longer afford the governmental expense of 'court law' natural justice. 'Fairness' is the cheap substitute that we are being required to accept.

In my own mind, I view the ongoing development of the law of 'fairness' as a corollary of the earlier, hugely-historical development of the court's 'common law'. Just as the Courts of Justice Act and the Rules of Civil Procedure now codify the procedural law of the courts, so the Statutory Power Procedures Act (SPPA) was an early codification of administrative law. But there the analogy breaks down, as the SPPA hasn't undergone any significant amendments in years - despite the rampant growth of Ontario admin law generally.

What's happening is that the institutional change has itself shifted away from the court-to-administrative (ie. tribunals as a class) transition to a court-to-tribunal (ie. separate tribunals) transition. Rather than a gradual, codified statutory transition to a unified 'admin law' generally (which we would expect if the SPPA were recently amended), we don't see that. Rather, individual tribunals are leaping ahead of any general admin law development and developing such things as rules, interpretation guidelines, practice directions and such with only scant legislative and regulatory direction. This is allowed by SPPA s.25.1:
25.1 (1) A tribunal may make rules governing the practice and procedure before it.
In this present scheme the doctrine of 'procedural fairness' fills in the tribunal-made procedural gaps. In this role 'fairness' has very much taken on the same historical role that the common-law took on with respect to the development of the English legal system. On study you can see the same concerns re-asserting themselves: standing, notice of issues and proceedings, disclosure, litigation practice and far more.

On the review (appeal and judicial review) front we see a recent statement and affirmation in the case of Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019), which is summarized here: Vavilov. With Vavilov we see the courts spell-out their self-perceived role in this brave new world.


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Last modified: 09-08-22
By: admin