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Appeal-Judicial Review - Fairness - Baker - Legitimate Expectations

. 30 Bay ORC Holdings Inc. et al. v. City of Toronto

In 30 Bay ORC Holdings Inc. et al. v. City of Toronto (Div Ct, 2021) the Divisional Court relied on procedural fairness doctrine that legitimate expectations (Baker) did not give rise to substantive rights:
[97] I would not accede to this argument for several reasons. First, I do not read the relevant passage from Vavilov as in any way rejecting or undermining the well-established administrative law principle that legitimate expectations cannot give rise to substantive rights: see Brown et al., at para. 7:1730. The fact that the Applicants may have believed that Council would approve their IMIT grant applications, based on the City’s past practice, does not give rise to any enforceable right to have their applications approved: Skypower CL I LP et al. v. Minister of Energy (Ontario), 2012 ONSC 4979 (Div. Ct.), at paras. 53, 84.
. 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
. Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue)

In Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue) (Fed CA, 2022) the Federal Court of Appeal considered the Baker doctrine of legitimate expectations as an aspect of procedural fairness:
[39] Turning to the notion of legitimate expectations, an administrative decision-maker’s failure to follow the procedure it has said it would follow may give rise to a breach of procedural fairness (Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (1999), 174 D.L.R. (4th) 193 at para. 26 [Baker]; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504 [Mavi]). The Supreme Court set out the conditions where an administrative decision-maker’s representations give rise to legitimate expectations in Mavi at paragraph 68:
Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision-maker’s statutory duty. Proof of reliance is not a requisite. See Mount Sinai Hospital Center [v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281], at paras. 29-30; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 78; and C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131. It will be a breach of the duty of fairness for the decision maker to fail in a substantial way to live up to its undertaking: Brown and Evans, at pp. 7-25 and 7-26.
. Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks)

In Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2020) the Divisional Court elaborated on the Baker test for administrative procedural fairness:
[60] In Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (CanLII), [2013] 2 SCR 559, the Supreme Court of Canada described the doctrine of legitimate expectations as follows in paras. 94-97:
(a) A legitimate expectation arises from some conduct of the decision-maker, or some other relevant actor.

(b) A legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a specific case.

(c) The practice or conduct must be clear, unambiguous, and unqualified, in the sense that if made in the context of a private law contract, they would be certain enough to be capable of enforcement.

(d) The doctrine cannot give rise to substantive rights, only appropriate procedural remedies to respond to the ‘legitimate’ expectation.


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