Friday, 28 March 2014

Move Along, Nothing to See Here: Orthodoxy and Procedural Fairness

A vigorous debate erupted in the comments to a recent post on deference on questions of procedural fairness. Recently, doctrinal orthodoxy has been challenged by several Canadian judges (a challenge based on Canadian developments but which ought also to be on the radar of those overseas) who have contended that procedural questions can no longer be said to fall exclusively in the province of the judiciary.

Will the following declaration from yesterday's Supreme Court of Canada opinion in Mission Institution v. Khela, 2014 SCC 24 quell the dissent?
[79]  [T]he standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be “correctness”.
This is doubtful. No authority is cited for the proposition, which (judging by the parties' factums) was not seriously argued in a case that turned on the scope of a common-law disclosure requirement and the relationship between the jurisdiction of the federal courts and provincial superior courts (more on those issues in future posts).

It is true that common law courts have typically professed no difficulty in stepping into the shoes of decision-makers when it comes to procedural matters. But on factual and policy matters falling within the specialized expertise of a decision-maker, it is clear, at least in Canada, that deference is now owed even on pure questions of law and constitutional matters.

Moreover, the Supreme Court of Canada recently noted that a full analysis of the standard of review is necessary "if the relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review" (para. 48).

If the standard of review of all procedural questions is correctness, then it is "inconsistent with recent developments".

Indeed, in a revealing slip, the Court itself deferred in part to the decision-maker's procedural determination in Khela:
[89]                          Section 27(3) authorizes the withholding of information when the Commissioner has “reasonable grounds to believe” that should the information be released, it might threaten the security of the prison, the safety of any person or the conduct of an investigation. The Commissioner, or his or her representative, is in the best position to determine whether such a risk could in fact materialize. As a result, the Commissioner, or the warden, is entitled to a margin of deference on this point. Similarly, the warden and the Commissioner are in the best position to determine whether a given source or informant is reliable. Some deference is accordingly owed on this point as well. If, however, certain information is withheld without invoking s. 27(3), deference will not be warranted, and the decision will be procedurally unfair and therefore unlawful. (Emphasis added)
The question of deference on questions of procedural fairness will continue to hang over Canadian administrative law until it is argued and authoritatively resolved by the Supreme Court.

1 comment:

  1. This is the same thing I hammered on about re Osbourn. Courts around the common law world insist that procedural fairness is reviewed on a correctness standard (to the extent that not-Canada countries consider standard of review, correctness is pretty much implicit here), but then give themselves room to de facto defer by saying that the doctrine is inherently contextual and the decisionmaker's choice of procedure is part of the context.

    I think it comes down to this weird need for courts to assert ownership over procedural fairness. The history of the doctrine is the history of executive agencies trying to act like courts and the courts telling them if they're going to do that they'd better have court-like processes. By imposing a correctness standard, no matter how much de facto deference there is, they still retain the final say on what fairness requires, and court-like adjudicative procedures remain the touchstone. If you put the deference where it really should be - in the standard of review - the content is up for grabs. Under a reasonableness standard, you don't have this platonic idea of an adjudicative process as a shining beacon of fairness. Instead, the choice of the decisionmaker - and their reasons for choosing a process that might be far from this adjudicative ideal - become the starting point, and the doctrine becomes a lot more flexible. I think this would be a positive step, but suspect it might take a while before the SCC talks itself into letting go of the reins.