tag:blogger.com,1999:blog-7665355359899630254.post608973134930320152..comments2023-12-20T07:29:21.752-05:00Comments on Administrative Law Matters: Move Along, Nothing to See Here: Orthodoxy and Procedural FairnessPaul Dalyhttp://www.blogger.com/profile/13433629868698007121noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-7665355359899630254.post-37054167676410552512014-03-28T15:31:44.474-04:002014-03-28T15:31:44.474-04:00This is the same thing I hammered on about re Osbo...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. <br /><br />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.Eddie Clarkhttp://www.twitter.com/Publicwrongsnoreply@blogger.com