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Appeal-Judicial Review - Fairness Is Procedural, Not Substantive. Canadian Hardwood Plywood and Veneer Association v. Canada (Attorney General)
In Canadian Hardwood Plywood and Veneer Association v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers the essence of 'procedural fairness':[57] Regarding the alleged breach of procedural fairness, in the context of a judicial review, no standard of review is applied but the reviewing exercise is "“best reflected on a correctness standard”" (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, 291 A.C.W.S. (3d) 8 at para. 54 [CPR I], cited in Canadian Pacific Railway Company v. Canada (Transportation Agency), 2021 FCA 69, 332 A.C.W.S. (3d) 188 at para. 46). "“[T]he ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond”" (CPR I at para. 56). . Andrews v. Public Service Alliance of Canada
In Andrews v. Public Service Alliance of Canada (Fed CA, 2022) the Federal Court of Appeal considered the distinction between administrative 'fairness and 'reasonableness' as the JR standard of review, where the applicant advanced what the court considered to be a substantive grounds of appeal - that of 'unsupported by the evidence':[26] The applicant has attempted to characterize a number of her arguments as matters of procedural fairness. More specifically, she claims that some findings of the Board were unsupported by the evidence before it, or that the Board reached "“unfounded conclusions”". In essence, however, the applicant’s arguments take issue with the reasonableness of the Board’s findings of fact and amount to a disagreement with the Board’s conclusions. Such arguments do not pertain to procedural fairness and are best addressed in a substantive review of the merits under the reasonableness standard. Indeed, this Court has confirmed that the standard of review of Board decisions on the merits in cases of a duty of fair representation complaint is reasonableness: Osman v. Public Service Alliance of Canada, 2021 FCA 227, 340 A.C.W.S. (3d) 84 at para. 9; Pierre v. Public Service Alliance of Canada, 2013 FCA 223, 454 N.R. 223 at para. 11.
[27] Questions of procedural fairness are ones that concern the procedure used by the administrative decision maker, or ones which question the opportunity of those affected by the decision to be heard and have their views and evidence considered by the decision maker: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 22. None of the arguments presented by the applicant address the procedure used by the Board or allege a denial of her right to fully participate in a fair and open procedure. . 30 Bay ORC Holdings Inc. et al. v. City of Toronto
In 30 Bay ORC Holdings Inc. et al. v. City of Toronto (Div Ct, 2021) the Divisional Court relied on procedural fairness doctrine that legitimate expectations (Baker) did not give rise to substantive rights:[97] I would not accede to this argument for several reasons. First, I do not read the relevant passage from Vavilov as in any way rejecting or undermining the well-established administrative law principle that legitimate expectations cannot give rise to substantive rights: see Brown et al., at para. 7:1730. The fact that the Applicants may have believed that Council would approve their IMIT grant applications, based on the City’s past practice, does not give rise to any enforceable right to have their applications approved: Skypower CL I LP et al. v. Minister of Energy (Ontario), 2012 ONSC 4979 (Div. Ct.), at paras. 53, 84.
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