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Fairness - SOR (3). Canada (Public Safety and Emergency Preparedness) v. Rodas Tejeda
In Canada (Public Safety and Emergency Preparedness) v. Rodas Tejeda (Fed CA, 2026) the Federal Court of Appeal considers the SOR for issues of procedural fairness, here in an abuse-of-process/delay context:[33] In the ID JR Decision, due to the uncertainty in its jurisprudence, the Federal Court declined to select a standard of review and addressed the issue of the ID’s jurisdiction to consider delay under both the correctness and reasonableness standards. The Federal Court jurisprudence does reveal a divergence regarding the standard of review to be applied to questions of procedural fairness where a determination made by the administrative tribunal, whose decision is being reviewed, is alleged to be procedurally unfair.
[34] More specifically, some Federal Court decisions treat a tribunal’s assessment of whether there has been a breach of procedural fairness before it to be a merits-based decision reviewable for reasonableness: see, e.g. Naimi v. Canada (Public Safety and Emergency Preparedness), 2024 FC 1294 [Naimi] at paras. 8–12; Kowalska v. Canada (Citizenship and Immigration), 2024 FC 1053 at para. 26; Khan v. Canada (Public Safety and Emergency Preparedness), 2022 FC 210 at para. 18; Akram v. Canada (Citizenship and Immigration), 2021 FC 1024 at paras. 17–18; and B006 v. Canada (Citizenship and Immigration), 2013 FC 1033 at paras. 35–36 (collectively, the first line of cases).
[35] Other cases hold that such determinations engage the duty of procedural fairness and are reviewable on a standard akin to correctness: see, e.g. Ahmad v. Canada (Citizenship and Immigration), 2014 FC 1666; Ganeswaran v. Canada (Citizenship and Immigration), 2022 FC 1797 [Ganeswaran] at paras. 20–28; Badran v. Canada (Citizenship and Immigration), 2022 FC 1292 at para. 14; Chabanov v. Canada (Citizenship and Immigration), 2017 FC 73 at para. 23; and Ismaili at para. 7.
[36] The first line of cases conflicts with binding authority from this Court and from the approach taken by the Supreme Court of Canada to procedural fairness issues that arise in an administrative law context.
[37] The Supreme Court of Canada has confirmed that issues of delay in administrative proceedings raise questions of procedural fairness. In Abrametz, the Supreme Court of Canada stated at paragraph 38 of the majority reasons that "“in administrative proceedings, abuse of process is a question of procedural fairness”", citing Blencoe; G. Régimbald, Canadian Administrative Law (3rd ed. 2021) at pp. 344–50; P. Garant, with P. Garant and J. Garant, Droit administratif (7th ed. 2017) at pp. 766–67. In Blencoe, the judges who adopted an administrative law review approach to the question of delay, as opposed to an analysis under section 7 of the Charter, approached the issue as one of procedural fairness. These judges assessed for themselves whether the delays in question gave rise to an abuse of process warranting a stay of proceedings or some other remedy. Thus, the first issue raises a question of procedural fairness.
[38] This Court has determined that, for questions of procedural fairness, the reviewing court asks whether, having regard to all the circumstances, a fair process was followed. As this Court has observed, while the terminology is imperfect, this inquiry may be reflected by terming it a "“correctness standard”", as the ultimate question is whether the individual had a meaningful opportunity to know and meet the case and had a full and fair chance to respond: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 [CPR] at paras. 54–56. When applying this standard, the reviewing court may choose either to uphold the administrative decision-maker’s determination or to substitute its own views, as the reviewing court is required to come to its own conclusions on the questions at issue: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 54.
[39] Multiple decisions of this Court have followed the approach in CPR: see the decisions in Byrne v. Canada (Border Services Agency), 2025 FCA 30 at para. 7, Wepruk v. Canada (Attorney General), 2024 FCA 55 at para. 8, and Sjogren v. Canada (Attorney General), 2019 FCA 157 at para. 6, to name only a few.
[40] This Court has also held that it matters not whether the administrative tribunal has ruled on the procedural fairness issue by considering what procedural fairness requires or whether a claimed violation of procedural fairness is argued for the first time before this Court based on what the administrative tribunal did or did not do as opposed to what it decided in the reasons it gave. In both instances, the same standard of review, akin to correctness, applies to procedural fairness questions: see, for example, Bergey v. Canada (Attorney General), 2017 FCA 30 at paras. 7 and 64–67; Canada v. Akisq’nuk First Nation, 2017 FCA 175 at paras. 16, 20–25 and 55–59; Bremsak v. Professional Institute of the Public Service of Canada, 2014 FCA 11 at paras. 9–15. See also Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 35; Denso Manufacturing Canada, Inc. v. Canada (National Revenue), 2021 FCA 236 at para. 36.
[41] This Court’s approach follows the case law of the Supreme Court of Canada. In Mission Institution v. Khela, 2014 SCC 24 [Khela], the Supreme Court noted that compliance with the duty of procedural fairness is subject to correctness review (at para. 79). Likewise, in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Justice Binnie noted at paragraph 43 that procedural fairness issues are determined on a correctness basis. To similar effect, at paragraph 74 of Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, the Supreme Court stated that procedural fairness requires no assessment of the appropriate standard of judicial review and that evaluating whether the duty of procedural fairness has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation.
[42] This approach to procedural fairness, of full curial review of the issue, has been applied by the Supreme Court in many cases. For example, this approach was adopted in Baker, where the Supreme Court outlined the relevant contours of the required approach to procedural fairness and applied them to assess whether the appellant had been accorded procedural fairness in the administrative process at issue. Similarly, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, in respect of what Justice Rennie termed "“the orphaned issue”" (at paragraph 47 of CPR), the Supreme Court assessed for itself whether Mr. Dunsmuir had been afforded procedural fairness and applied no standard of review to that question.
[43] While at least one appellate court has adopted a different position in Loiselle c. Haggai, 2025 QCCA 932 at paragraphs 70–92, leave to appeal granted 2026 CanLII 41513 (S.C.C.), in the Federal Courts, questions of procedural fairness are to be decided based on a standard of review akin to correctness. This latter approach has similarly been followed in many of Canada’s common law jurisdictions: see, for example, Queen Elizabeth Annex (QEA) Parents’ Society v. Vancouver School District No. 39, 2025 BCCA 160 at para. 46; Feng v. Saskatchewan (Economy), 2020 SKCA 6 at para. 43; Landry v. Rocky View County (Subdivision and Development Appeal Board), 2025 ABCA 34 at paras. 32–33; Afolabi v. Law Society of Ontario, 2025 ONCA 257 at para. 60.
[44] That said, I hasten to note that, in applying this standard of review to procedural fairness issues, reviewing courts should consider and give appropriate weight to the procedural choices of the administrative decision-maker. As noted at paragraph 27 of the majority reasons in Baker:The analysis of what procedures the duty of fairness requires should also take into account and respect 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: Brown and Evans, supra, at pp. 7-66 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: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, per Gonthier J. [45] Hence, in determining whether an administrative decision-maker was procedurally fair, a reviewing court is required to give weight to the administrative decision-maker’s procedural choices in similar matters. Thus, in essence, a certain degree of deference is built into the standard of review applied to the assessment of procedural fairness issues by a reviewing court under the approach to these issues mandated by Baker.
[46] Thus, on the first issue regarding the ability of the ID to rule on allegations of abuse of process due to delay in admissibility matters, this Court applies a standard akin to correctness. As such, we must determine if the ID was correct in its assessment of these matters. . Christian Heritage Party of Canada v. Hamilton (City) [IMPORTANT, holding 'none']
In Christian Heritage Party of Canada v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against an earlier dismissal of a JR application - that against "whether the respondent, City of Hamilton (the “City”), acted unfairly or unreasonably in rejecting a proposed advertisement for City-owned transit shelters from the appellants, Christian Heritage Party of Canada and Christian Heritage Party Hamilton-Mountain Electoral District Association (collectively, “CHP”)".
Here the court addresses the ongoing conflict between whether the SOR for issues of procedural fairness was 'none' or 'correctness' (deciding that 'none' is preferable):[23] With respect to the appellants’ argument that the City breached its duty of fairness, as this court has noted, there is no standard of review per se in relation to alleged breaches of procedural fairness: “While there are cases in which the ‘correctness’ standard of review has been held to apply on a judicial review for procedural fairness, the use of the correctness approach can be awkward and confusing in such a context”: Afolabi v. Law Society of Ontario, 2025 ONCA 257, 44 Admin. L.R. (7th) 191, at para. 60 (footnote omitted). As the Supreme Court observed in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 74, procedural fairness requires no assessment of the appropriate standard of judicial review. Rather, the question for the reviewing court is to assess whether decision-maker discharged its duty of fairness. In this case, the Divisional Court concluded that the City has done so.
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