Breaking Out of Federal Court: Mission Institution v. Khela, 2014 SCC 24

Under the Federal Courts Act, the Federal Court has exclusive jurisdiction

to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal.

A notable absentee from this list is the writ of habeas corpus. Since its assertion that the "rule of law must run within penitentiary walls", the Supreme Court of Canada has given prisoners a choice between making habeas claims in the provincial superior courts or judicial review applications in Federal Court.

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.

Procedural Fairness and Prosecutorial Discretion: Murphy v. Ireland, 2014 IESC 19

The Irish Supreme Court recently released its judgment in Murphy v. Ireland, 2014 IESC 19. Of greatest general interest is the recognition that the applicant had a limited right of procedural fairness which imposed a duty on the Director of Public Prosecutions to give reasons to send him for a non-jury trial at the Special Criminal Court on various taxation offences.

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.

Deference, Weight and Procedural Fairness

In both Canada and the United States, considerable jurisprudential effort has been expended on identifying "standards of review" of administrative action. Standards of review refer to the tests applied to determine whether a court should strike down administrative decisions.

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.

Publish or Be Damned

A troubling controversy is emerging about the decision of a couple of federal adjudicative tribunals, those charged with social security and refugee appeals, to refuse to publish all of their decisions. Those who regularly represent clients in these appeals are complaining.

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.

Liberty, Vires and Fairness: the UKSC Decision on Workfare

The UK government has established a variety of schemes with the goal of returning welfare recipients to the workforce. Some require claimants to work in return for benefits. R. (Reilly) v. Secretary of State for Work and Pensions, [2013] UKSC 68 addresses the legality of two of these "workfare" schemes. Of particular interest, given the implications for the applicants' freedom of choice, is the interpretive approach taken by the UK Supreme Court. This, it seems to me, is long on principle, but short on practical effect.

Procedural Fairness before Tribunals of Inquiry: Mr. Chevrette and the Charbonneau Commission

Quebec's Charbonneau Commission is continuing to make headlines. Most recently, the testimony of Ken Pereira, a former trade union activist, is keeping the printing presses tipping over.

The Commission registered an important victory earlier this week before the Superior Court on a question of procedural fairness: Beaulieu c. Charbonneau, 2013 QCCS 4629.

Procedural Fairness in Public Sector Bargaining

Public Service Alliance of Canada v. Canada (Attorney General), 2013 FC 91 is an illuminating case on many issues, especially procedural fairness. 

At issue was a labour relations dispute between the federal government and one of its agencies. The bone of contention was a direction by the Minister for Canadian Heritage that a group of workers at the Canada Border Services Agency should hold a vote on the last offer made to them. Section 183 of the Public Service Labour Relations Act allows the Minister to order that a vote be taken where he considers it would be in the public interest to do so.

The direction in the present case was issued without consideration of a report concluded by an expert body which had previously been appointed under the Act. Moreover, it was issued without notice to the applicant. Gleason J.'s ultimate conclusion was that the direction was unfair.

Making Adverse Findings against a Party Who Withdraws an Appeal is a Breach of Procedural Fairness

Somewhat obvious, one would have thought! One can imagine the surprise of the applicant in Can-Euro Investments Ltd. v. Ollive Properties Ltd., 2013 NSCA 80, who, having withdrawn an appeal before the Utility and Review Board was nonetheless strongly criticized in a decision handed down weeks later.

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.

Jumping off Horses in Mid-Stream

An English accountant, Mr. Hill, was the subject of disciplinary proceedings. Hill gave lengthy evidence-in-chief and was also cross-examined. On one of the days of the hearing, one of the tribunal members left early, with the agreement of counsel for both sides. A transcript was provided to the member and he was able to ask clarifying questions the following day. But this procedure was later challenged by Mr. Hill: Hill, R (on the application of) v Institute of Chartered Accountants In England and Wales [2013] EWCA Civ 555.

The core of the challenge is explained in the following passage of the Court of Appeal's decision:

It is now said that, despite Mr Cope's agreement to the way matters proceeded, there was in fact no power on the part of the disciplinary tribunal to permit one of its members to depart during the hearing and then take part in the remainder of the hearing. It is also said that there was a breach of the rule of natural justice that "he who decides must hear" and that that breach was not waived. All proceedings after 5.00 p.m. on 18^th December 2009 were therefore a nullity including the decision of the tribunal that the charge was proved.

Longmore L.J. reviewed the tribunal's authorizing provisions and concluded that the practice of temporarily absenting oneself was not prohibited. The key issue, though, was whether the absence led to unfairness.

As a general matter, tribunal members should be present for the totality of a hearing. Reviewing the transcripts afterward is insufficient:

1. The judge (para 72) did not find it easy to draw any general conclusion from these authorities; she thought that the principle that "he who decides must hear" had been strictly applied in criminal cases and in cases with juries but had been more flexibly applied in civil cases without a jury. I agree with that and would myself add that in professional disciplinary cases the tribunal is, subject to the relevant bye-laws or other rules, master of its own procedure. If there is a hearing with live witnesses giving their evidence orally, it will normally be a breach of rules of natural justice for a member of the tribunal (in the absence of agreement) to absent himself while a witness is giving evidence and later return to participate in the decision. This will not normally be cured by the absent member reading a transcript of the evidence given in his absence, unless the evidence is comparatively uncontroversial for the reasons given by Lord Griffiths in Ng v The Queen. Such absence will be difficult (if not impossible) to justify if the evidence being given is that of the defendant or respondent to the disciplinary proceedings.

However, the consent to the absence here was determinative. Indeed, there was no breach of any rule of natural justice:

1. I would therefore reject Mr Hamer's argument that, if any breach of natural justice occurred, it could not be waived. I would go further and say that a breach of the rule of natural justice of the kind that is said to have occurred in the present case is at most an irregularity that could be waived. Indeed if there was an agreement to the procedure adopted, I would prefer to say that there has been no breach of the relevant rule of natural justice at all. One must look at the position as it was at about 5.00 p.m. on Day 4 when Mr Mander left; if one does that, it is odd to say that the tribunal acted in breach of the rule of natural justice when all parties agreed to the course that was to be taken. "Waiver" is more naturally used in respect of something that was definitely a breach when it occurred but is later agreed not to matter.(my emphasis)

In a concurring speech, Beatson L.J. agreed with this distinction between cases in which a breach is subsequently agreed to (a classic example of waiver) and one in which there is no breach at all because of consent:

1. The underlying reason of principle for not analysing the second type of case as a waived breach, primarily flows from another inherent quality of the principle entitling a person to a fair hearing. It is the recognition that denying a person a fair hearing is a wrong that is personal to that person so that, although the principles of natural justice are part of our public law and although those not directly affected or not affected at all are generally accorded standing to challenge a decision that is flawed in public law terms, this is not the case where the breach is of the audi alteram partem principle. Moreover, although there have been statements that waiver is not always possible in natural justice cases (see e.g. Mayes v Mayes [1971] 1 WLR 679 at 684 Sir Jocelyn Simon P), that is a minority view. Even after a serious breach, including the rule automatically disqualifying a person on the grounds of pecuniary interest to which I have referred (see Locabail (UK) Ltd v Bayfield Properties Ltd. [2000] QB 431 at [15]) waiver is possible provided it is done so freely and in full knowledge of the facts by the person affected, and there is no other interested party affected who (as in R v Hnedon R.D.C. ex parte Chorley [1933] 2 K.B. 696) objects. 


2. More broadly, the requirements of natural justice have often been described as "fair play in action": see, for example, Lord Morris of Borth-y-gest in Wiseman v Borneman [1971] 1 AC 297 at 309. Particularly since the re-invigoration of the principles almost 50 years ago in Ridge v Baldwin [1964] AC 40, the concept of fairness embodied in the different strands of natural justice has been seen as flexible and as not requiring the courts to lay down over rigid rules: see R v Monopolies and Mergers Commission, ex p. Matthew Brown Plc [1987] 1 WLR 1235 and Lloyd v McMahon [1987] 1 AC 625 at 702. One example of that flexibility is as to what precisely is required for a procedure to be fair: see, for example, McInnes v Onslow-Fane [1967] QB 617, at 630. Regarding a procedure which has been freely accepted in advance and with full knowledge of the facts as a breach of natural justice which has been waived is in my judgment both contrived and inconsistent with the flexibility in the concept and with the idea that a procedure which breaches the rules is "unfair" and that the rules reflect the idea of "fair play in action". It in effect would create a category which might be characterised as a technical breach of natural justice, but, as Bingham LJ stated in R v Chief Constable of the Thames Valley Police, ex p Cotton [1990] IRLR 344, there can be no such thing "because … a procedure must in all the circumstances of a given case be either fair or unfair".

As Beatson L.J. observed, the best reason for this sort of approach is that it avoids any lapse into metaphysical discussions about whether a decision is "void" or "voidable" on the basis of error (see para. 50). A distinction between constitutive and adjudicative jurisdiction, which runs along similar lines, should also be avoided. So, where the parties agree to avoid metaphysics, there is no need for philosophical indulgence on the part of reviewing courts.

Procedural Fairness in Public Procurement

Public procurement is governed by a plurality of legal regimes. Statutes, regulations, international law and common law all have a say. Norms are enforceable by judicial review and (somewhat more lucratively) in private actions. Given the pluralistic nature of legal regulation of public procurement, it is unsurprising that norms associated more with public law have seeped into the private law framework. A recent Canadian example is Entreprise P.S. Roy inc. c. Magog (Ville de), 2013 QCCA 617.

Procedural Fairness for Office Holders -- Again -- in New Brunswick -- Again

In most jurisdictions, courts have had difficulty in calibrating the appropriate procedures for public office-holders. It is easy to understand why: employment -- and dismissal -- by public bodies is bound up with statute and thus presents questions that are amenable to judicial review. However, many public employees also benefit from contractual protections, just like private employees -- why, then, should they benefit from greater protection?

The Supreme Court of Canada's response to this question in Dunsmuir v. New Brunswick, 2008 SCC 9, was to focus on the existence of an employment contract: "where a dismissal decision is properly within the public authority’s powers and is taken pursuant to a contract of employment, there is no compelling public law purpose for imposing a duty of fairness" (at para. 106). Subsequently, in Canada (Attorney General) v. Mavi, 2011 SCC 30, the Court characterized Dunsmuir as creating a "rather narrow Dunsmuir employment contract exception from the obligation of procedural fairness" (at para. 51).

President Obama's Executive Order on Cybersecurity

Given the recent discussion of the constraints law places -- or doesn't place -- on administration, I think Executive Order -- Improving Critical Infrastructure Cybersecurity is noteworthy. Even though President Obama is not under any duty to follow the strictures of the Administrative Procedure Act in issuing executive orders, the hallmarks of administrative law can be glimpsed in this important document.

Questions and Answers: Procedural Fairness

In Barreau du Québec c. Khan, 2011 QCCA 792, the Québec Court of Appeal held that a student who failed a bar exam was entitled to look over her exam, answer booklet, answer key and correction grid and to take notes while doing so.

With its decision in Ordre des infirmières et infirmiers du Québec c. Ngoya Tupemunyi, 2013 QCCA 134, the Court has gone even further. The issue was whether procedural fairness required the disclosure of an exam and answer key to allow the individual concerned to properly respond to the recommendations of disciplinary inquiry.

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.