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Appeal-Judicial Review - Fairness - Disclosure

. 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 relating to disclosure by the decision-maker:
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. …
Brown v. Canada (Citizenship and Immigration)

In Brown v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal comments on administrative procedural fairness in the immigration detention context:
[136] Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).

[137] Although the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings "“will merit greater vigilance by the courts”" (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.

[138] Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (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; Kane v. Bd. of Governors of U.B.C., 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.


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