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Administrative Law - Duty of Fairness - Not Applicable to Crown

Kachkar (Re) (Ont CA, 2014)

In this case the Court of Appeal considered, but decided against, the proposition that the Crown was owed a duty of fairness within administrative proceedings (here Ontario Review Board proceedings to decide conditions to be placed on a person committed as 'not criminally responsible'). In the course of the reasons the court usefully reviews the law applicable to the duty of administrative fairness:
[39] In Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at 653, Le Dain J. succinctly defined the circumstances in which the duty of procedural fairness arises:
This Court has affirmed that 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.
[40] For the duty to arise, several criteria must be met. There can be no doubt that one of these is present here. The Board is clearly a public authority making an administrative decision when it makes its disposition concerning the respondent.

[41] However, for the purposes of the duty of procedural fairness analysis, I do not think that the Crown can be said to be an individual, nor to have a right, privilege or interest that is affected by the Board’s disposition.

[42] In my view, the duty of fairness extends to those impacted by the administrative decision-making process in the sense that they have a right, privilege or interest that they can claim as their own that is affected, usually adversely, by the decision. While the jurisprudence has increasingly extended this notion to include, for example, corporations either private or public, see D. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, vol. 2, looseleaf at p. 7-54, the Attorney General representing the Crown sits uncomfortably in this company. Even with an expanded definition, the Crown cannot be described as an individual.

[43] Nor do I think that the Attorney General can be said to be advancing a right, privilege or interest that the Crown can claim as its own. Indeed, the Attorney General does not purport to rely on a Crown right or privilege to trigger the duty of procedural fairness. Rather, the Attorney General argues that the Crown is owed procedural fairness because of its interest in ensuring as far as possible a Board disposition that is least onerous and least restrictive to the respondent consistent with public safety. In other words, the Crown’s interest is in ensuring compliance with s. 672.54 of the Criminal Code. That is the interest that is said to trigger its entitlement to procedural fairness.

[44] In my view, the Attorney General does not advance an interest that the Crown can claim as its own. What is being asserted is the public interest, not a private interest. This is to be contrasted with the respondent’s liberty interest, which is clearly his own and equally clearly affected by the Board’s disposition.

[45] Nor can it be argued that the interest asserted by the Crown is adversely affected by the Board’s disposition. The Criminal Code requires the Board to comply with s. 672.54. It must ensure that its disposition is least onerous and least restrictive to the respondent while protecting public safety. The Crown can hardly claim that a disposition that does so adversely affects the interest the Crown advances so as to trigger an entitlement to procedural fairness. If the Crown considers that a disposition does not do so, its right is to appeal on the grounds of unreasonableness rather than assert a breach of procedural fairness.

[46] To summarize, I do not think that the circumstances of this case place on the Board a common law duty of procedural fairness to the Crown. What remains to the Crown are the procedural protections offered to the Attorney General by the provisions of the Criminal Code.

[47] If I am wrong, and the Crown is owed a duty of procedural fairness by the Board, the content of that duty must be determined in the context of this case. In Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48 (CanLII), 2004 SCC 48, [2004] 2 S.C.R. 650 at para. 5, McLachlin C.J. said this:
The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
[48] In my view, the decisive factor in these circumstances is the third one, the importance of the decision to the individuals affected. In the words of McLachlin C.J. at para. 9, “[t]he stringency of procedural protection is directly proportional to the importance of the decision to the lives of those affected and the nature of its impact on them.”

[49] The importance of the Board’s decision to the Crown relates directly to its interest in ensuring so far as possible that the disposition is least onerous and least restrictive to the respondent consistent with public safety. However, that interest is fully protected by according to the Attorney General the opportunity to urge upon the Board the disposition that the Attorney General says will achieve this result. The Attorney General had that opportunity in this case. Procedural fairness requires no more. Protection of the interest advanced by the Attorney General does not require that the Attorney General be given the right to make submissions about the community access condition before the Board attaches it to the disposition. That would not enhance protection of the interest relied on by the Crown. Thus, even if the Crown is owed a duty of procedural fairness by the Board in the circumstances of this case, I would conclude that the duty was met.

[50] In short, even though it might have been desirable for the Board to offer a more fulsome explanation of why it went beyond the joint submission, I conclude that the Crown’s procedural fairness argument fails.


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