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Appeal-Judicial Review - Fairness - Baker - Basics

. Denso Manufacturing Canada, Inc. v. Canada (National Revenue)

In Denso Manufacturing Canada, Inc. v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the Baker test for procedural fairness and some additional cases:
A. Procedural Fairness – Failure to Disclose the Opinion of a Senior Program Advisor

[40] As noted by the majority of the Supreme Court in Vavilov, at paragraph 77, "“[t]he duty of procedural fairness in administrative law is "eminently variable", inherently flexible and context-specific …”". The majority of the Supreme Court then set out five factors that were previously identified by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (Baker):
(1) the nature of the decision being made and the process followed in making it;

(2) the nature of the statutory scheme;

(3) the importance of the decision to the individual or individuals affected;

(4) the legitimate expectations of the person challenging the decision; and

(5) the choices of procedure made by the administrative decision maker itself …
[41] In Baker, after referring to these factors, the Supreme Court noted:
28 I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.
....

[44] In Canadian Pacific, at paragraph 56, this Court held that "“the ultimate question [for procedural fairness] remains whether the applicant knew the case to meet and had a full and fair chance to respond”". ...

[52] In my view, the Minister had no such duty or obligation. In May v. Ferndale Institution, 2005 SCC 82, the majority of the Supreme Court of Canada noted:
92 In the administrative context, the duty of procedural fairness generally requires that the decision-maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker fails to provide sufficient information, his or her decision is void for lack of jurisdiction. …
. Metro Ontario Real Estate Limited v. Corporation of the City of Orillia

In Metro Ontario Real Estate Limited v. Corporation of the City of Orillia (Div Ct, 2020) the Divisional Court emphasized the purpose of the Baker case (a key case on procedural fairness) was to ensure that administrative processes were fair:
[23] In Baker, the Supreme Court of Canada explained when a duty of procedural fairness will arise at common law: there must be an administrative decision, and that decision must affect “the rights, privileges or interests of an individual” (at para. 20).

[24] If there is such a decision, the Supreme Court held that the content of the duty of procedural fairness would vary and depend on the statutory context and the rights affected (at para. 22). The Court set out a number of factors to consider in determining the content of the duty in a particular case that I need not set out here. Notably, for purposes of the present application, the Court emphasized that the purpose of the duty of procedural fairness is to ensure participatory rights in the process leading to a decision. As the Court stated (at para. 22),
I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
In other words, the duty of procedural fairness is designed to give a party who will be affected by a decision notice and an opportunity to provide its position on the issues with appropriate supporting material before the decision is made.
. Canadian Pacific Railway Company v. Canada (Transportation Agency)

In Canadian Pacific Railway Company v. Canada (Transportation Agency) (Fed CA, 2021) the Federal Court of Appeal harkens back to the beginning of the doctrine of fairness:
[53] Ever since Nicholson v. Haldimand‑Norfolk Regional Police Commissioners, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311, 88 D.L.R. (3d) 671, it has been recognized that administrative decision makers have a duty to act fairly. While the cases in which the question arose often involved adjudicative tribunals, the principle does not flow from the nature of the tribunal but from the effect of the decision on the interested party. This was recognized, though not for the first time, in Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653 when the Court wrote:
...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: Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board (No. 2), 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602; Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735. ...
[55] Fairness is an elastic concept which varies according to the circumstances. As the Supreme Court wrote in Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, 69 D.L.R. (4th) 489, at 682 and confirmed in 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. 21 [Baker], "“the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”".

[56] Baker sets out a number of factors to be considered in determining the content of the duty of fairness. One of these is the legitimate expectations of the person concerned. In this case, CP claims that it had legitimate expectations that it would be consulted before the manner of determining its CoC was changed, expectations which were based on the Agency’s past practice and its own undertaking to act transparently.

[57] Legitimate expectations can only arise as a result of an administrative tribunal’s conduct or its representations:
…If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. ...

Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at para. 94
[58] This Court has explained the interests underlying the legitimate expectations doctrine as follows:
The interests underlying the legitimate expectations doctrine are the non-discriminatory application in public administration of the procedural norms established by past practice or published guidelines, and the protection of the individual from an abuse of power through the breach of an undertaking. These are among the traditional core concerns of public law.

Apotex Inc. v. Canada (Attorney General), 2000 CanLII 17135 (FCA), [2000] 4 FC 264, 188 D.L.R. (4th) 145 at para. 123
. Pacific Northwest Raptors Ltd. v. Canada (Attorney General)

In Pacific Northwest Raptors Ltd. v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal commented usefully on procedural fairness:
[25] In Baker, after referring to these factors, the Supreme Court noted:
28 I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

[emphasis added]
....

[30] As noted by the Supreme Court in Baker, "“[t]he values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly”".

....

[40] In Canadian Pacific, at paragraph 56, this Court held that "“the ultimate question [for procedural fairness] remains whether the applicant knew the case to meet and had a full and fair chance to respond”". ....
. Roozbuilt Ltd. v. Jamieson

In Roozbuilt Ltd. v. Jamieson (Div Ct, 2022) the Divisional Court considered the role of procedural fairness in the administrative law system:
[21] The duty of fairness is meant to provide participatory rights in an administrative process. Two important elements of procedural fairness are notice and an opportunity for an affected party to make submissions. However, the content of the duty varies with the context, and so a reviewing court considers various factors in determining the precise content of the duty of procedural fairness in a particular case (Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras. 22-27).
. Scott v. Toronto (City)

In Scott v. Toronto (City) (Div Ct, 2021) the Divisional Court considered a judicial review of a 'parking pad' permit denial by a municipal 'Community Council'. In the course of this they considered basics of procedural fairness:
[25] A decision-maker has a duty of procedural fairness when making a decision that is not legislative in nature that affects the rights, privileges or interests of an individual: Canada (Attorney General) v. Mavi, 2011 SCC 30, at para. 38. Here, the issue involved an individual privilege – that is, an exemption from the parking pad restrictions set out in Chapter 918. The duty of procedural fairness applies. Procedural fairness governs participatory rights, to ensure that administrative decisions are made using a fair procedure, appropriate to the decision being made and its statutory, institutional, and social context: Baker, para. 22

[26] The procedural protections and participatory rights required to meet the duty of fairness are assessed contextually, in accordance with the five Baker factors. As discussed below, these factors suggest that the content of the duty of fairness owed in this case is at the low end of the spectrum.
. Chapman v. York Region Children’s Aid Society

In Chapman v. York Region Children’s Aid Society (Div Ct, 2021) the Divisional Court set out basics of the administrative duty of fairness:
[40] The objective of the common law duty of procedural fairness is to provide participatory rights appropriate to the administrative decision being made (Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 1999 SCC 699 at para. 22). The content of the duty is contextual, as the content of the right of participation varies with such factors as the nature of the decision, the statutory scheme, the importance of the decision to an individual, legitimate expectations about procedure, and the choices of procedure made by the decision-maker (Baker at paras. 21-28).
. Singh v. Wawanesa Mutual Insurance Company

In Singh v. Wawanesa Mutual Insurance Company (Div Court, 2022) the Divisional Court considered some basics of procedural fairness:
(2) Procedural Fairness

[46] The Court of Appeal in 1657575 Ontario Inc. v. Hamilton (City), 2008 ONCA 570, 92 O.R.(3d) 374, at para. 24, summarized the factors identified by the Supreme Court in Baker to aid in assessing the degree of procedural protections required as follows:
(a) The nature of the decision being made, and the process followed in making it;

(b) The nature of the statutory schemes and the terms of the statute pursuant to which the body operates;

(c) The importance of the decision to the individual affected;

(d) The legitimate expectations of the person challenging the decision; and

(e) Choices of procedure made by the agency itself.
[47] When considering whether the rules of procedural fairness have been followed, deference is owed to a tribunal’s procedural decisions: Baker, at para. 27; Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing, 2021 ONSC 4116 (Div. Ct.), at para.110

[48] Whether procedural fairness is met is context specific. In Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, at para. 31, the Federal Court of Appeal states: “The guiding principle, therefore, is that the person affected should be afforded the means to present their case fully and fairly, and have a decision made in a fair, impartial, and open process, taking into consideration the statutory, institutional, and social setting of that decision.”

[49] Further, a single judge of the Divisional Court has also noted that “[a] process is fair or not depending on the degree of procedural protections required and whether they were provided in the circumstances of the case before the court: see Niagara Funeral Alternatives Inc. v. Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966 (Div. Ct.), at para. 26 citing Baker.
. D. Michael Goldlist v. Registrar, Alcohol, Cannabis and Gaming Regulations and Public Protection Act

In D. Michael Goldlist v. Registrar, Alcohol, Cannabis and Gaming Regulations and Public Protection Act (Div Ct, 2022) the Divisional Court set out the standard Baker test for procedural fairness:
[54] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699, at paragraphs 23 to 28, provides a flexible framework to address practical issues of procedural fairness. The Supreme Court enumerated the following non-exhaustive list of factors to be considered when determining the procedural protections mandated by the duty of fairness:
• The nature of the decision and the process followed in making it;

• The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

• The importance of the decision to the individual or individuals affected;

• The legitimate expectations of the person challenging the decision; and

• The choice of procedure made by the agency.


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