Friday, 8 November 2013

Deference Denied on Questions of Procedural Fairness: Osborn v. The Parole Board, [2013] UKSC 61

Traditionally courts have seen themselves as the guardians of fair procedures. The substance of administrative decisions is for the decision-makers: they are the ones entrusted by the legislature with making decisions, and they have the expertise to do so.

Courts have been much less deferential in addressing the processes by which those decisions are reached. When it comes to the fairness of procedures, administrative decision-makers have to get it right. If they do not, courts stand ready to correct them.

Where the issue is whether a right, such as the right to notice, or to an oral hearing, was wrongly denied, this approach may be appropriate. Yet there are at least some procedural questions which are difficult to classify as purely questions of procedural fairness and on which intrusive judicial review is harder to justify.

For example, a decision as to the content of a procedural right might be something within the expertise of the administrative decision-maker in question. An individual might have the right to legal representation, but maybe not to two or three lawyers. A right to call witnesses might also be limited at the discretion of the decision-maker; by the time witness number seven trots up the stand the decision-maker might reasonably call a halt. Similarly, a right to submit evidence is not unlimited. Indeed, it has been suggested that decisions as to admissibility of evidence should be reviewed deferentially.

An argument of this sort failed to convince the UK Supreme Court in Osborn v. The Parole Board, [2013] UKSC 61. Readers will recall that the issue was the circumstances in which the Parole Board had to hold oral hearings. In one of the cases, the Court of Appeal had held "the reasons given for refusal [to hold an oral hearing] are not irrational, unlawful nor wholly unreasonable" (para 38).

This received a firm rebuttal from Lord Reed:
These dicta might be read as suggesting that the question whether procedural fairness requires an oral hearing is a matter of judgment for the board, reviewable by the court only on Wednesbury grounds. That is not correct. The court must determine for itself whether a fair procedure was followed....Its function is not merely to review the reasonableness of the decision-maker's judgment of what fairness required (at para. 65). 
In articulating the test applicable to determine whether an oral hearing is required Lord Reed suggested that something of a balancing exercise is appropriate. Good administration (better decision-making) on the one hand; the rule of law (individual dignity) on the other:
  1. Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and, as was said in West, the importance of what is at stake. The board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide...   
  1. The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. An oral hearing should therefore be allowed where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. 
One might ask whether this balancing exercise is not a matter on which the Parole Board has a comparative advantage over the reviewing court. Certainly the Parole Board is better placed to determine whether its decision "may benefit" from an oral hearing. Should not significant weight be given to this determination? Or, put another way, should not the Parole Board's determination be upheld unless the weight given to the prisoner's dignity interests was so modest as to render its determination unreasonable?

Indeed, Lord Reed's apparent preference for balancing is somewhat at odds with his approach to the rule of law and good administration, which he treats as interlinked rather than mutually exclusive. Yet if they are so closely interlinked, how can they balanced against each other?

In any event, despite the reference to balancing, a hard-and-fast rule applies in certain circumstances:
  1. In accordance with the guidance provided in West, an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted.
No alchemy needed! If certain facts are present, then an oral hearing will be required (see similarly para. 86). Moreover, this hard-and-fast rule could be seen as an amalgam of the good administration and rule-of-law considerations so dear to Lord Reed. Disputed facts and important explanatory or mitigating factors touch both the interest in better decision-making and the individual interest in participating in the process.

However, I might quibble that the question as to which facts "appear to be important" is again more a matter for the Parole Board than a reviewing court. Despite the primacy of the reviewing court's role, it is hard to downplay the potential for deference to the Parole Board. Some weight is presumably due to at least some determinations of the Parole Board.

Nonetheless, Lord Reed's reassertion of orthodoxy sits well with Rezmuves v. Canada (Citizenship and Immigration), 2013 FC 973. The question here was the legality of a refusal to disjoin refugee applications by two members of the same family.

Internal procedural rules provided for disjoinder in certain cases. The applicants argued that the refusal breached their right to fair procedures. The respondents relied on an important recent Québec Court of Appeal decision in which deference was given to the decision-maker on a question of procedural fairness on the basis that the decision-maker's constitutive statute spoke to the procedural issue raised.

Gleason J. refused to defer. She distinguished the Québec case on the basis that it spoke directly to the question of procedural fairness, whereas the internal rules in the present case merely enabled the taking of a decision on disjoinder:
[19] Syndicat des employés de Au dragon forgé can therefore be read as a case where the content of parties’ procedural fairness rights were fixed by statute and the tribunal’s interpretation of that statute was subject to reasonableness review, as is normally the case when a tribunal interprets a provision in its constituent statute...
[20]           Sections 49 and 50 of the Rules, on the other hand, do not in any way define the scope of the procedural fairness rights that a party before the RPD enjoys at common law. Rather, paragraph 50(c) of the Rules merely requires the RPD to determine whether providing for joinder or disjoinder would “likely cause an injustice”, which does not circumscribe the rights a party would otherwise enjoy to procedural fairness as such rights exist to prevent injustice.
Orthodoxy reigns again. However, if courts continue to recognize the relative expertise of administrative decision-makers when it comes to substantive review, it may prove difficult to hold back the deferential tide.

On some procedural questions, intrusive judicial review may remain appropriate. Where complex procedural choices touching the efficient management of decision-making processes are at issue, however, deference may be appropriate. A question was certified to the Federal Court of Appeal in Rezmuves, which may present an occasion to fully consider the relationship between deference and procedural fairness.

UPDATE: Another recent case involving balancing is Kaur v. Canada (Citizenship and Immigration), 2013 FC 1023, though with the balance falling on the side of the individual:
[18]           In my view, the decision is problematic on two fronts. First the process followed is defective. Second, the decision lacks in demonstrating why it is reasonable in the circumstances to conclude that the misrepresentation, if any, is material and satisfies the test of section 40 of the Act.

[19]           In this case, after reviewing the application for two years, the respondent provided a “fairness letter” allowing for 30 days to answer, yet it appears that it is received only 24 days later. Although the evidence would suggest that the two requests for an extension of time were received by the respondent, no response is given. And then, suddenly, a final determination is made.

[20]           As stated by Brown and Evans in their Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing Inc., 2013), about procedural fairness, at paragraph 7:3110:
. . . Its principal purpose is to provide a meaningful opportunity for those interested to bring evidence and arguments that are relevant to the decision to be made to the attention of the decision-maker, and correlatively, to ensure that the decision-maker fairly and impartially considers them.

I am of course conscious of the fact that the fair opportunity to participate is not an open-ended proposition. It is tempered by, in the words of Brown and Evans, “the public interest in effective, expeditious and efficient decision-making . . .” (at paragraph 7-1100). It seems to me that if fairness commands that the applicant be advised of admittedly legitimate concerns, it follows that a fair opportunity to respond must be given. In the particular circumstances of this case the precipitation of the respondent remains unexplained, as well as the fact that it did not communicate with the applicant’s representative in due course. Efficient decision-making cannot obviate the need to allow for representations to be made. In the particular circumstances of this case, I believe a proper response was not given.

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