Staying out of the Wilderness of Single Instances: Some Thoughts on Context and Procedural Fairness

At the centre of R. (L.) v. West London Mental Health NHS Trust, [2014] EWCA Civ 47 was a man with significant mental health challenges. In a learned judgment, Beatson L.J. analyzed the requirements of the common law of procedural fairness and made some interesting observations about the challenges the common law poses for reviewing courts.

Governmental Contracting, Procedural Fairness and Fundamental Freedoms

As a general rule, governments cannot and should not be required to fund speech or activities with which they do not agree. An organization committed to perpetuating inequalities between men and women, or which decries homosexuality as sinful, can lawfully be shunned. But should such an organization, especially one which previously received government funding, be entitled to some procedural protections before a decision is made to refuse to contract with it on the basis of its speech or activities?

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.

The Basis of Fairness in Administrative Law: Osborn v. The Parole Board

The recent UK Supreme Court decision in Osborn v. The Parole Board, [2013] UKSC 61 has already provoked interesting commentary on the relationship between the common law of procedural fairness and the European Convention on Human Rights. I have nothing to add to that commentary, but one of the things I find interesting about Osborn is the discussion of the basis of fairness in administrative law.

Reasons -- Parroting the Statute as a Breach of Procedural Fairness, or Leading to Unreasonableness

The vexed question of the adequacy of reasons got another outing in Wall v. Independent Police Review Director, 2013 ONSC 3312.

Here, an individual arrested during an allegedly heavy-handed police operation at the 2010 G20 summit in Toronto made a complaint about his treatment. Having spent 28 hours in custody, he was released without charge.

First Principles: Substantive and Procedural Review on the UKSC

The decision of the UK Supreme Court in Bank Mellat v Her Majesty's Treasury (No. 2) [2013] UKSC 39 is not exactly ground-breaking as a matter of law, and is certainly the poor relation of Bank Mellat (No. 1), UKSC 38 (see e.g. here), but it is nonetheless a very interesting case on the application of the general principles of administrative law.

Immigration: Justiciability and Procedural Fairness

An organization entered into an agreement with the Minister for Citizenship and Immigration to sponsor immigrants to Canada. Initially, the agreement provided that the Minister would cover all health care costs. Subsequently, the federal cabinet (of which the Minister is a member) issued an order which had the effect of requiring the organization to defray certain medical expenses. The organization claimed that this would cost about $400 per immigrant (of which they had sponsored about 1,000) per year. In Hospitality House Refugee Ministry Inc. v. Canada (Attorney General), 2013 FC 543, an application for judicial review was dismissed.

Boilerplate Reasons

The President of France, M. Hollande, has recently suggested that where the administration fails to reply to individual decisions silence should be taken as indicating consent: "dans de nombreux domaines, le silence de l’administration vaut décision d’acceptation et non plus décision de rejet". 

Procedural Fairness in Extradition

The Supreme Court of Canada decided two interesting terrorism cases last Friday. R. v. Khawaja, 2012 SCC 69 has been grabbing most of the headlines because the Court upheld (though narrowly defined) anti-terrorism offences enacted shortly after 9/11. There were constitutional issues in the companion case of Sriskandarajah v. United States of America, 2012 SCC 70 as well, because the Court was asked to overrule one of its extradition precedents, Cotroni.

I want to focus, though, on the administrative law challenges addressed in Sriskandarajah. In particular, I want to question the Court's conclusion that there had been no breach of the appellants' rights to procedural fairness.

The Irish Supreme Court on the Right to Reasons in Administrative Law

In his judgment in Meadows v. Minister for Justice, [2010] IESC 3, Murray C.J. suggested that a general right to reasons for administrative decisions should be recognized in Irish law. In its decision last week in Mallak v. Minister for Justice, [2012] IESC 59, the Irish Supreme Court did not quite go that far, but its observations on the issue are far-reaching and important. Unfortunately, its observations are also somewhat muddled.

Privatization's Progeny: Canadian Offspring?

Term has happily come to an end up in now-icy Montréal, so I am catching up on all of the reading I missed in the last few hectic weeks. One paper I read some time ago but neglected to blog about is Privatization's Progeny by Jon Michaels.

A half-thought that occurred to me at the time was whether the process described by Michaels had an effect on the Supreme Court of Canada's 2008 decision in Dunsmuir v. New Brunswick, 2008 SCC 9.

Jurisdictional Error, Procedural Fairness and Advocacy by Tribunals

There is much to say about Samatar c. Canada (Procureur général), 2012 CF 1263, a case involving an apparent jurisdictional error, a flagrant breach of procedural fairness, and over-zealous advocacy on the part of an arm of the state.

Self-Represented Litigants and Administrative Tribunals

We know that administrative tribunals have plenty of scope to design their own procedures, which need not resemble those of a regular court. But there are limits, as the Québec Court of Appeal recently explained in a case involving a real estate agent who represented himself -- unsuccessfully -- at a disciplinary hearing.

Duties of Fairness in the Disposal of Municipal Buildings

At first blush, the result in North End Community Health Association v. Halifax (Regional Municipality), 2012 NSSC 330 is striking. A municipality's decision to sell an old school to a property developer was held to be unlawful because it breached a duty of fairness to local non-profit organizations and because it was sold at less than market value.

Towards a Right to Respond in Immigration Law?

You know when academics say, "Some of my best ideas come from students"? Sometimes, we mean it.

A Bad Day for NAMA

Ireland's National Asset Management Agency won a High Court legal battle against Treasury Holdings earlier this week, but it may end up losing the war. Finlay Geoghegan J.'s judgment, [2012] IEHC 297, cannot have been well received at NAMA headquarters. Over at NAMA Wine Lake, the editors wonder out loud "if indeed the Agency is panicking at the prospect of floodgates of legal action in the wake of yesterday’s judgment".