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Procedural Fairness in Administrative Law

Questions:

1.Whether there should be a procedural fairness obligation for decisions made by Cabinet.

2.What the position is for procedural fairness in the making of delegated legislation.

The decision making power for the interest of justice are the main objective of Administrative law. Procedural fairness and natural justice are the two main mechanisms of Administrative law. The term procedural fairness denotes the fair making of administrative decision[1]. This law has concentrated on the decision of the judges and the lawmakers. The future of a country is very much depended on the decisions. Therefore, it is required that the decision should fair in nature. According to Curt Griffiths, the procedural fairness makes the process of the decision fair and not act as a substantive fairness. If there is any laxity regarding the procedural fairness in a decision, the affected person may seek for judicial review[2]. The Supreme Court of Canada has ruled out certain process regarding the procedural fairness by stating the flexible character of the administrative process. Jodie Ferguson has made an attempt to find out the role of the procedural fairness in the development of the legislative content and analyse the principle in the light of present state of law in Canada. Certain dilemma are present regarding the process such as the power of the cabinet regarding the procedural fairness and how the concept affected their decisions[3]. The position of the procedural fairness in the delegated legislation has also been discussed.

The central pivot of this discussion is whether the legislative decisions have to maintain a duty regarding the procedural fairness or not. It has been observed that the law regarding the administrative process prescribed certain rules regarding the applicability of the procedural fairness to ensure the justice to all. The main objective of the doctrine is to establish a fairness provision in the decision so that the justice could not be denied[4]. It has been decided in the case of Saeed v Minister for Immigration and Citizenship that procedural fairness is protected by the legal principle and in the words of Mark Aronson, the courts should have to construe the legislation to establish the existence of procedural fairness.

However, in the states of Canada, the rule or policy makers are hesitating to adopt the doctrine of procedural fairness in case of judicial review. It has been pointed out in Nicholson’s case that the application of natural justice is depending on certain things and it is hard to establish the rules of quasi-judicial process in the society. Professor R. A. Macdonald is also of the view that a dilemma has been cropped up regarding the applicability of the procedural fairness on the cases of judicial review[5].

Decision Making and Procedural Fairness

The approach regarding the fairness is widely approached by Professor David Mullan. According to him, the court should have to assess the review power with flexibility. He did not categorise the power as judicial or quasi-judicial. He has applied the process of procedural fairness on every types of power. He has observed that the judiciary confirmed the power of procedural fairness upon every official regarding his or her performance in case of administrative process. He believed the fact that the procedural law can better establish the theoretical approach of law[6].

The attitude of the court towards the procedural fairness has generated from the case of Nicholson. In this case, the chief justice of Supreme Court has stated that the concept of fairness needs procedural protection. The observation made by the Chief justice in the case has brought a theoretical revolution in the case of administrative law. The doctrine of procedural fairness has been divided into two parts. The first one deals with the intellectual underpinning of the procedural supervision and the second part deals with the potential application of fairness doctrine. It has been observed that the rule of natural justice is attached with the doctrine of procedural fairness reciprocally and it supports the inherent power of the court regarding the review power[7]. Prescriptive analysis is necessary for the upcoming development of the procedural review.

In the case of Nicholson, it has been observed that the Police authority suspended him without giving an opportunity to make any submission regarding the same. Therefore, the process of fairness has been necessitated in this case. It has been observed by the Supreme Court that it is the right of the person to get justice and the doctrine of procedural fairness should be applicable so that serious consequence should not occurred by the statutory decisions[8]. According to the Chief Justice, the person should be treated fairly and not arbitrarily.

The modern approach for procedural fairness has been generated by the ideology of Justice McLachlin. He has encoded his notions in a paper named “The Roles of Administrative Tribunals and Courts in maintaining the Rule of Law”. It has been observed by him that the public power should base on the rationality and fairness. The Supreme Court to the organizational tribunals has also delivered certain guidelines. The thinking capabilities of the decision makers should base on the fairness to ensure the justice for all. However, it has been observed that for past few decades the Canadian court or the policymakers do not maintain the applicability of the procedural fairness[9].

The Role of Procedural Fairness in Canadian Law


The modern applicability of the procedural fairness is based on the case called Baker v Canada (Minister of Citizenship and Immigration). The present state of law in Canada is depending on the five factors observed in this case. The factors can be categorised as follows:

  • Procedural fairness should be based on the nature of decision and the process of it;
  • It should maintain the nature of a statutory scheme;
  • The importance of the decision should be analysed and the outcome of it on the individuals is needed to be verified;
  • There should be certain legitimate expectations to challenge the decisions that are not based on the procedural fairness;
  • Maintain an integrity regarding the doctrine of procedural fairness.

The fifth factor of the case is much appreciated by the Canadian policy makers and it has been observed that the increasing problem regarding the fairness can be challenged in this ground. In the case of Dunsmuir, the doctrine of procedural fairness has been reaffirmed by the court and considered the doctrine as an essential part to secure justice for others[10].

The Canadian administrative law addresses the action of the government in the provinces of Canada. In this case, the administrative decision of the government can be challenged and the court can decide the matter by way of review the decision of the policymakers[11]. It has been observed and literally mentioned under the law that the decision should be based on procedural fairness. In Canadian Union of Public Employees v Ontario 2003 SCC 29, it has been proved that the legitimate expectation is to represent a clear idea through the decision and it should maintain the process of fairness. In Canada, the judicial system is based on two principles such as the natural justice and impartial judgment. There are certain legitimate expectations regarding the establishment of procedural expectation. The expectations should be maintained so that the decisions of the administration ensure the justice.  

The procedural fairness regarding the decisions of the cabinet was for the first time established by the case of Baker v Canada (Minister of Citizenship and Immigration). It attempts to define both the substantive and the procedural matters of the administrative law. It has been observed by the Supreme Court that the decision of the court should be based on flexibility and certain appreciations regarding specific issues are to be mentioned. It should be taken into consideration that the decision of the cabinet or the administrative authorities should not be affected the personal justice of the human being.


In the continents of Canada, the administrative tribunals are enjoying broad discretionary power regarding the acceptance of evidence and it has been observed by the Administrative Act that the powers can be governed in accordance to the stipulated principles. In Michael Di Biase v City of Vaughan, it has been observed that the natural justice should not be denied and the decision of the commissioner should be based on the procedural fairness.

The Application of Procedural Fairness in Delegated Legislation

There is certain importance present regarding the maintenance of procedural fairness in the cabinet decision as the cabinet has to take decision on the important matters related to the internal as well as the external administration and therefore, the future of the state is very mush depended on the decisions[12]. It should be kept in mind that if the decisions are taken arbitrarily, the notion of justice could be getting affected and the idea of fairness will be deprived. Therefore, it is important to take these decisions for the interest of justice and for the well-being of the humankind.   

Five theories of the Baker’s case have been taken for the facilitation of the process of fairness. It has been pointed out by the Supreme Court that the procedural fairness is based on the nature of the decision, role of the decision in the statutory schemes, impact of the decision on individuals, legitimate expectation for challenging the decision and choice of the procedure[13].

The parliamentary system of law can be divided into two parts. The first one is the primary legislation and the second one is the secondary or delegated legislation. The rules and orders of the council and the other administrative parts of government can be regarded as the delegated legislation. Apart from this, certain bylaws and parliament sovereignty can be treated as the part of the delegated legislation. For the commencement of the process of the government, these decisions are playing an important part and therefore, it is required to maintain certain fairness regarding the applicability of the decisions[14]. The common principle of the law is to establish justice and equality among the citizen and in the words of the Martin Luther, justice delayed means justice denied. Therefore, the cabinet or the council should have to take certain decisions with fair provision. The accountability of the executive branches of the government are depended on the fair decision making process and effective performance regarding the same should be maintained. Therefore, it can be said that the procedural fairness hold an important position in case of the delegated legislation[15].

Conclusion:

Therefore, it can conclude that the mechanism regarding the procedural fairness plays an important part regarding the policymaking system of the administrative bodies and it can be stated that the rule of justice should be established through this process. It has been observed that for few decades, the mentality of the Canadian government was negative regarding the fairness and the outcome of it was grievous in nature. It is the common principle of law that if the decision of the court or any administrative tribunals do not reflect the clarity and fairness, it is impossible to secure justice[16]. However, through certain decisions, the Supreme Court observed the potentiality of the procedural fairness and bring back the process for the interest of justice.

Maintaining Fairness in Cabinet Decisions

References:

Asimow, Michael. "Five models of administrative adjudication." The American Journal of Comparative Law 63.1 (2015): 3-32.

Aylward, Stephen, and Luisa Ritacca. "In Defence of Administrative Law: Procedural Fairness for Administrative Monetary Penalties." Canadian Journal of Administrative Law & Practice 28.1 (2015): 35.

Carr, Cecil T. Delegated legislation. Cambridge University Press, 2016.

Evans, John M. "Fair's Fair: Judging Administrative Procedures." Canadian Journal of Administrative Law & Practice 28.2 (2015): 111.

Ferguson, Jodie L., Pam Scholder Ellen, and William O. Bearden. "Procedural and distributive fairness: Determinants of overall price fairness." Journal of business ethics 121.2 (2014): 217-231.

Griffiths, Curt. Canadian Criminal Justice: A Primer, 5e. Vol. 5. Nelson Education, 2014.

LeBel, Louis. "Notes for an address: Reflections on natural justice and procedural fairness in Canadian administrative law." Canadian Journal of Administrative Law & Practice 26.1 (2013): 51.

Leyland, Peter, and Gordon Anthony. Textbook on administrative law. Oxford University Press, 2016.

Parpworth, Neil. Constitutional and administrative law. Oxford University Press, 2016.

Pierro, Antonio, et al. "Follower need for cognitive closure as moderator of the effectiveness of leader procedural fairness." European Journal of Work and Organizational Psychology 23.4 (2014): 582-595.

Poirier, Johanne. "Intergovernmental Agreements in Canada: At the crossroads between law and politics." (2015).

Zhang, Weiyu. "Perceived procedural fairness in deliberation: Predictors and effects." Communication Research 42.3 (2015): 345-364

Ferguson, Jodie L., Pam Scholder Ellen, and William O. Bearden. "Procedural and distributive fairness: Determinants of overall price fairness." Journal of business ethics 121.2 (2014): 217-231.

Pierro, Antonio, et al. "Follower need for cognitive closure as moderator of the effectiveness of leader procedural fairness." European Journal of Work and Oganizational Psychology 23.4 (2014): 582-595

Zhang, Weiyu. "Perceived procedural fairness in deliberation: Predictors and effects." Communication Research 42.3 (2015): 345-364

Evans, John M. "Fair's Fair: Judging Administrative Procedures." Canadian Journal of Administrative Law & Practice 28.2 (2015): 111

Aylward, Stephen, and Luisa Ritacca. "In Defence of Administrative Law: Procedural Fairness for Administrative Monetary Penalties." Canadian Journal of Administrative Law & Practice 28.1 (2015): 35.

Leyland, Peter, and Gordon Anthony. Textbook on administrative law. Oxford University Press, 2016.

LeBel, Louis. "Notes for an address: Reflections on natural justice and procedural fairness in Canadian administrative law." Canadian Journal of Administrative Law & Practice 26.1 (2013): 51.

 Parpworth, Neil. Constitutional and administrative law. Oxford University Press, 2016.

Asimow, Michael. "Five models of administrative adjudication." The American Journal of Comparative Law 63.1 (2015): 3-32.

Poirier, Johanne. "Intergovernmental Agreements in Canada: At the crossroads between law and politics." (2015).

Carr, Cecil T. Delegated legislation. Cambridge University Press, 2016.

Parpworth, Neil. Constitutional and administrative law. Oxford University Press, 2016

LeBel, Louis. "Notes for an address: Reflections on natural justice and procedural fairness in Canadian administrative law." Canadian Journal of Administrative Law & Practice 26.1 (2013): 51.

Evans, John M. "Fair's Fair: Judging Administrative Procedures." Canadian Journal of Administrative Law & Practice 28.2 (2015): 111.

Pierro, Antonio, et al. "Follower need for cognitive closure as moderator of the effectiveness of leader procedural fairness." European Journal of Work and Organizational Psychology 23.4 (2014): 582-595.

Leyland, Peter, and Gordon Anthony. Textbook on administrative law. Oxford University Press, 2016.

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