Procedural fairness - a new Supreme Court decision

Canada (Attorney General) v. Mavi, 2011 SCC 30 released this morning stands for the proposition that procedural fairness always applies to administrative decisions. The content of what fairness requires is determined by context. The Court holds:

[38]                          The doctrine of procedural fairness has been a fundamental component of Canadian administrative law since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, where Chief Justice Laskin for the majority adopted the proposition that "in the administrative or executive field there is a general duty of fairness" (p. 324).  Six years later this principle was affirmed by a unanimous Court, per Le Dain J.:  ". . . there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual": Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653.  The question in every case is "what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context" (Cardinal, at p. 654).  See also Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 669; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 20; and Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 18.  More recently, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ. adopted the proposition that "[t]he observance of fair procedures is central to the notion of the 'just' exercise of power" (para. 90) (citing D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 7-3).

[39]                          Accordingly, while the content of procedural fairness varies with circumstances and the legislative and administrative context, it is certainly not to be presumed that Parliament intended that administrative officials be free to deal unfairly with people subject to their decisions.  On the contrary, the general rule is that a duty of fairness applies.  See G. Régimbald, Canadian Administrative Law (2008), at pp. 226-27, but the general rule will yield to clear statutory language or necessary implication to the contrary:  Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at para. 22.  There is no such exclusionary language in the IRPA and its predecessor legislation.

[40]                          In determining the content of procedural fairness a balance must be struck.  Administering a "fair" process inevitably slows matters down and costs the taxpayer money.  On the other hand, the public also suffers a cost if government is perceived to act unfairly, or administrative action is based on "erroneous, incomplete or ill-considered findings of fact, conclusions of law, or exercises of discretion" (Brown and Evans, at p. 7-3; see also D. J. Mullan, Administrative Law (2001), at p. 178).

[41]                          Once the duty of procedural fairness has been found to exist, the particular legislative and administrative context is crucial to determining its content. ...