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Introduction to Fairness'Fairness' is a common law principle that in past has applied primarily to administrative law, generally recognized to have arisen in Canadian law in the case of Nicholson v. Haldimand-Norfolk Regional Police Commissioners (SCC, 1978):In short, I am of the opinion that although the appellant clearly cannot claim the procedural protections afforded to a constable with more than eighteen months’ service, he cannot be denied any protection. He should be treated “fairly” not arbitrarily. I accept, therefore, for present purposes and as a common law principle what Megarry J. accepted in Bates v. Lord Hailsham[11] , at p. 1378, “that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness”. 'Fairness' is thus the administrative legal child of 'natural justice', long the nursery for new legal concepts. And while the field of administrative law is undeniably growing (with it's wholesale legislative replacing the courts with statutory tribunals), it goes further than that. Fairness - a procedural doctrine born of administrative law - is also being applied in the very non-administrative fields of civil litigation, contracts and more [see 'FAIRNESS CHARACTERIZED: Fairness - More than an Administrative Issue?']. In short, 'fairness' is spreading into a general principle of law - this represents a secondary 'growth' of admin law into the legal realm.
I can point to other related doctrinal developments, in that the same procedural issues that occur in 'fairness' can occur as free-standing grounds of appeal in civil law - and even in criminal law, as in the case of ineffective assistance of counsel. Fairness procedural issues can also duplicatively arise in the doctrines of: 'abuse of process', the Vavilov judicial review standard of review of 'reasonableness', the semi-fairness doctrine of 'inadequate reasons for decision' - and I expect more.
The upshot is that administrative law - through it's thriving sprout 'fairness' - is performing a radical change on both our law, and the courts themselves.
Politically this is being tolerated, or even actively pursued, under the argument that - given the growth of such things as consumer law, social assistance law, labour law and more - the government can no longer afford the expense of 'court law' natural justice - and (it must be admitted) does not particularly feel the need to salvage this traditional essence of democracy. 'Fairness' is the cheap substitute that we are being required to accept.Note: I suspect this can be attributed the advanced stage of capitalism that I describe as 'manufactured need', the material over-production brought about counter-intuitively at the end of scarcity economics, and facilitated by the thriving of unnecessary 'persuasion' advertising, planned obsolescence and similar [see 'Progressivism, Identity Politics, Law and the End of the World, s.3. Rights, Outcomes and The End of the World'] - but that's a topic for another 'Something Big' topic. In my own mind, I view the ongoing development of the law of 'fairness' as a corollary of the earlier, hugely-historical development of the court's 'common law'. Just as the Courts of Justice Act and the Rules of Civil Procedure now codify the procedural law of the courts, so the Statutory Power Procedures Act (SPPA) was an early codification of administrative law. But there the analogy breaks down, as the SPPA hasn't undergone any significant amendments in years - despite the rampant growth of Ontario admin law generally.
I think what's happening is that the institutional change has itself shifted away from the court-to-administrative (ie. tribunals as a class) transition to a court-to-tribunal (ie. separate tribunals) transition. Rather than a gradual, codified statutory transition to a unified 'admin law' generally (which we would expect if the SPPA were recently amended), we don't see that. Rather, individual tribunals are leaping ahead of any general admin law development and developing such things as rules, interpretation guidelines, practice directions and such with only scant legislative and regulatory direction. This is allowed by SPPA s.25.1:Rules
25.1 (1) A tribunal may make rules governing the practice and procedure before it. In this present scheme the doctrine of 'procedural fairness' fills in the tribunal-made procedural gaps. In this role 'fairness' has very much taken on the same historical role that the common-law took on with respect to the development of the English legal system. On study you can see the same concerns re-asserting themselves: standing, notice of issues and proceedings, disclosure, litigation practice and far more.
On the review (appeal and judicial review) front we see a recent statement and affirmation in the case of Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019), which is summarized here: Vavilov. With Vavilov we see the courts spell-out their self-perceived role in this brave new world.
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