Tuesday, 11 March 2014

Deference on all Types of Procedural Fairness Question? Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59

In Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, Stratas J.A. added his voice to the chorus of judges urging deference on questions of procedural fairness. A choir composed of Bich J.A., Evans J.A. and Stratas J.A. cannot be drowned out by assertions of the orthodoxy that 'correctness is the standard of review for procedural fairness questions'. The Supreme Court of Canada is going to have to address this question sooner rather than later.

A set of procedural fairness arguments was made in the instant case. The Guild successfully applied to the Canadian Industrial Relations Board for the certification of a bargaining unit, an application that was opposed by the applicant company. The company complained that the Board departed without warning from a previously established policy; that the Guild was given the chance to make additional submissions; and that no oral hearing was held. Reconsideration was given by the Board on all of these issues but it refused to depart from its initial position.

The Federal Court of Appeal was unanimous in dismissing the subsequent application for judicial review on procedural and substantive grounds (though I will not discuss the latter). In his decision -- which did not attract the agreement of his colleagues -- Stratas J.A. accorded deference to the Board's procedural decisions.

He approached the matter from "first principles" (at para. 50).  First, the importance of context to the resolution of procedural fairness issues meant that:
The Board is best placed to decide this. It, not the reviewing court, is the fact-finder. It knows the circumstances in particular proceedings before it. It has expertise in the dynamics of labour relations and has policy appreciation. Armed with these advantages, the Board is master of its own procedure, free to design, vary, apply and, in reconsideration proceedings, assess its procedures to ensure they are fair, efficient and effective (at para. 50). 
Second, in its seminal decision in Dunsmuir the Supreme Court of Canada did not expressly take a position on the standard of review of procedural fairness questions, but instead urged that reasonableness be the default standard of review of expert tribunals acting in their areas of specialization (at paras. 51-53).

Third, a series of pre-Dunsmuir cases that "remain good law" (at para. 54) accorded deference (or at least referred to the possibility of deference) on procedural fairness questions (see the lists in paras. 55 and 56).

Stratas J.A. then attempted to respond to the generalized fear that deference on questions of procedural fairness would imperil individuals' ability to challenge abuses of administrative authority, noting that the range of reasonable outcomes would often be quite narrow in procedural fairness cases:
[57]           Does reasonableness review undercut the ability of this Court in appropriate circumstances to enforce fundamental matters of procedural fairness? Definitely not. Reasonableness review does not take anything away from reviewing courts’ responsibility to enforce the minimum standards required by the rule of law. In other words, it is not unduly deferential. Indeed, in some cases, the nature or importance of the procedural fairness issue, the severe effect of the alleged procedural defect upon the aggrieved party, the similarity of the procedures under review to court procedures, or any combination of these may severely constrain or eliminate the range of acceptable and defensible options or margin of appreciation open to the administrative decision-maker on the facts and the law (see paragraphs 34-35, above)...
[58]           Further, legislative standards and legal standards worked out in the jurisprudence can constrain the range of acceptable and defensible options or margin of appreciation open to the administrative decision-maker on the facts and the law...Given the well-defined legal standards set by the existing case law on procedural fairness, the range of acceptable and defensible options or margin of appreciation open to the administrative decision-maker often will be constrained. There will be cases, however, where the nature of the matter and the circumstances before the administrative decision-maker should prompt the reviewing court to give the decision-maker a wider margin of appreciation.
In the instant case, Stratas J.A. held that deference ought to be accorded:
[63]           In my view, the case at bar is one where the Board should be given some leeway under reasonableness review. The Board understood the requirements of procedural fairness, citing two of its own decisions that were based on relevant jurisprudence from the Supreme Court of Canada. The Board’s task in this case was to apply those standards in a discretionary way to the factually complex matrix before it, a task informed by its appreciation of the dynamics of the case before it and its knowledge of how its procedures should and must work, all in discharge of its responsibility to administer labour relations matters fairly, justly and in an orderly and timely way. It did so under the umbrella of legislation empowering the Board to consider its own procedures based on its appreciation of the particular circumstances of cases and to vary or depart from those procedures when it considers it appropriate: Canada Industrial Relations Board Regulations 2001, supra, section 46.
[64]           Maritime Broadcasting does not point to any particular misunderstanding of the Board as to the relevant legal concepts. Rather, it invites us to stand in the shoes of the Board and apply the principles in this case. As I have said, this is inapt.
Undoubtedly, the company had particular procedural rights, in particular to notice and to an opportunity to make submissions. But the Board's determination of the content of these rights was entitled to deference.

I think the greatest significance of this decision is that it clearly establishes a third category of cases in which Canadian courts have deferred to administrative determinations of procedural fairness questions (the three categories are described here).

On the scope of procedural fairness, there is the (relatively) old, unrepudiated authority of Bibeault v. McCaffrey, [1984] 1 S.C.R. 176. On whether a particular right exists, there is Bich J.A.'s decision in Au dragon forgé, 2013 QCCA 793. And now, on the content of procedural fairness, there is this decision (as well as the remarks of Evans J.A. in Re:Sound, 2014 FCA 48) which, moreover, involves a set of discretionary decisions by the Board rather than the interpretation of a statutory provision (as was the case in Bibeault and Au dragon forgé).

The case for deference on questions of procedural fairness is strong and being made ever more loudly. Yet the outcome is not a foregone conclusion: the UK Supreme Court recently rejected deference and the deferential turn I have identified in the Canadian cases is by no means uniform. It is time for the Supreme Court to get involved.

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