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Legislature - Fairness. Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board
In Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board (Ont CA, 2023) the Court of Appeal held that procedural fairness did not apply to legislative functions, here "whether to proclaim legislation into force":[18] The Divisional Court further held that the Minister did not breach the duty of procedural fairness in making his decision. The decision about whether to proclaim legislation into force is a legislative function exercised by the executive based on grounds of public policy, and procedural fairness does not apply, relying on Reference Re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at pp. 557-58. In any event, even if the Minister owed CCC a duty of procedural fairness, the court found that CCC’s continued participation in the process indicates that he met this duty.
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[64] That said, I also would not accept the respondent’s premise with respect the proper characterization of the Minister’s discretion. First, the setting of a Minister’s decision whether or not to recommend proclamation is distinct from the actions of the Legislature itself, which are not subject to judicial review on fairness grounds. As the Supreme Court stated in Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40, at para. 37:Long-standing parliamentary tradition makes it clear that the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislation within Parliament’s competence is unassailable.
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