Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: What is the duty of procedural fairness?

How to go about dealing with an organization that may be treating you unfair

Have you ever encountered a situation in which you knew an organization was being unfair, but you weren’t sure what to do about it?

It is possible that what you may have been involved in was a classic case of a violation of the administrative law duty of procedural fairness. This is sometimes referred to as the “duty to be fair” or the “rules of natural justice.” Administrative bodies need not generally comply with strict rules of evidence.

However, they generally are required to be procedurally fair.

One of the leading Supreme Court of Canada cases that explains the duty of procedural fairness is Baker v. Canada (Minister of Citizenship and Immigration).

In that case, an immigration officer refused a woman’s immigration application. The decision was unreasonable for many reasons. One key reason was that the officer’s notes revealed the decision took into account irrelevant considerations, including that she was on welfare and was schizophrenic. The immigration officer based the decision on these irrelevant considerations instead of relevant and proper considerations under the Immigration Act.

The Supreme Court of Canada quashed the decision, as the immigration officer failed to consider relevant grounds. In failing to consider them, the officer failed to implement the legislation’s objectives.

Although the officer had discretion whether or not to approve the application, the court made clear that discretion is not without limits. It must be exercised in accordance with “principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society” and of course the Canadian Charter of Rights and Freedoms.

The officer’s discriminatory comments were inconsistent with these principles. They also gave rise to a reasonable apprehension of bias, which is a topic worthy of an article unto itself.

The court stated that “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.”

The purpose of “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.”

The court outlined a non-exhaustive list of factors that determine the content of procedural fairness owed in individual cases. Those factors repeatedly continue to be recognized by the Supreme Court of Canada.

In Canada (Minister of Citizenship and Immigration) v. Vavilov, the court listed these factors as including:

(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.

The court in Baker also stated that in certain circumstances, the duty of fairness requires a written explanation for a decision.

If you would like to know more about the duty of procedural fairness, there is no shortage of reading material. More than 250 articles and more than 6,000 reported Canadian cases discuss the Baker decision.

Although Baker is now 20 years old, its timeless truths of fair dealing, humanity and compassion continue to resonate within the legal profession and among Canadians.

In 2019, it remained among the top 10 cases in Canada. As Canadians, we expect fairness and adherence to the rule of law. These principles are worth continually fighting to protect.

If you know you have been treated unfairly by an organization, consider finding out whether the rules of procedural fairness apply and were violated. If so, consider whether it may be worth it to pursue your case.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

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