In Part 6 of our “Intro to Judicial Review” blog series we explore Procedural Fairness – what does it mean and what does it include?
By Emily Zarychta, articling student, and Holly Popenia, Community Law Program Lawyer
Administrative tribunals often make decisions of great importance to us as citizens – whether our landlord can evict us, whether we receive compensation for a workplace injury, whether we are entitled to income assistance. We have a lot at stake with these administrative decisions, so how can we ensure that these decisions are decided fairly?
What does procedural fairness mean?
The concept of procedural fairness evolved from two common law principles: that a decision-maker should not judge their own case or have an interest in the outcome, and that a decision-maker should listen to both sides of a case before making a decision. Procedural fairness is not concerned with whether the outcome of the decision was fair, but rather whether the process was fair. If the process was unfair, you may be able to apply to a court to judicially review the administrative decision. (For more on Judicial Review, see our Intro to Judicial Review – Part 1: What is Judicial Review?)
What does procedural fairness include?
What makes an administrative proceeding procedurally fair varies between administrative bodies. The following are examples of what may be needed for an administrative proceeding to be procedurally fair.
- The right to know the case against you
Notice is the requirement to inform someone of a legal case that affects their rights or interests once the case is started. Notice must give someone a reasonable opportunity to present evidence and arguments and respond to those in opposition. Notice periods are often set out in the rules that govern an administrative bodies’ procedure. The duty to provide proper notice is ongoing. A party whose rights or interests are at stake must be told of any relevant issues that arise prior to and during the course of the hearing in order to participate meaningfully in the process.
- Disclosure
Disclosure means that parties exchange important evidence that they want to give to the decision-maker to make their decision. Each party needs to know what information the other party is relying on so that they can make informed arguments about all of the evidence. Administrative bodies with oral hearings are likely to have disclosure rules in their rules of procedure. If a party fails to disclose relevant evidence to the other side that they are relying on, and the decision-maker proceeds with the hearing without giving the other side a chance to review the documents or request an adjournment, that could be procedurally unfair.
- The opportunity to be heard
The principle that the person affected by a decision should have the chance to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard.[1] Oral hearings might sometimes be required by the duty of fairness, but they are not the norm and are not always required to satisfy this duty. An oral hearing might be required in systems similar to a court like the RTB, Labour Board, or Human Rights Tribunal. Courts have said that oral hearings are required where a decision depends on findings of witness credibility – i.e. whether or not to believe a witness.[2] If a decision-maker does not allow a person to speak or make submissions during an oral hearing, that could be procedurally unfair.
In other contexts, it is procedurally fair for a decision-maker to make a decision on the basis of written submissions alone. For example, WorkSafeBC generally uses this process for claims.
- An opportunity to give evidence and cross-examine
The right to have witnesses give evidence on your behalf and the right to ask questions of the other side and their witnesses is normally a part of the right to an oral hearing, but it is not absolute. Administrative bodies control their own procedures and may limit this right. The guiding principle is that parties must be given a reasonable opportunity to present their cases.[3] The scope of evidence and role of witnesses will depend on the decision-making body – the more similar to a court, the stronger these procedural rights. For example, if a tribunal denied someone the right to cross-examine a witness in an oral hearing, this could be procedurally unfair.
- Adjournments
Sometimes, unexpected things happen that mean that you can’t attend a hearing or meet certain required deadlines in your administrative proceeding. While there are generally no guarantees that you will be given extra time to have your hearing or meet your deadlines, most tribunals have the discretion to allow you extra time or to reschedule the hearing in extreme circumstances. If you ask for additional time and the decision-maker does not grant it to you, this may be a breach of procedural fairness depending on the circumstances.
Many administrative bodies have guidelines to help determine when they will grant adjournments. Generally, decision-makers will look at how much control you had over the situation that led to you needing the adjournment and whether the delay will be unfair to the other party.
Adjournments in action: These guides from the Residential Tenancy Branch and the BC Human Rights Tribunal show what these decision-makers will consider before an adjournment is granted.
- Right to a lawyer
Unlike in criminal law, there is no right to a lawyer in the context of an administrative proceeding. However, the court has held that where there is a deprivation of life, liberty, or security of the person at stake, the principles of fundamental justice may require a lawyer in administrative processes.[4] For example, people facing deportation before the Immigration and Refugee Board have the right to a lawyer.
- Oral or written reasons for the decision
Administrative decision-makers need to give decisions that show that they meaningfully addressed the central issues and concerns raised by the parties. Reasons should be responsive to the issues to show that the decision-maker listened to the parties.[5]
The court will generally set aside the decision and send the matter to the back to the administrative decision-maker if reasons are required and none are given.[6] If reasons are provided but they fail to provide a transparent and clear justification for the decision, the decision will be unreasonable.
Other Procedural Fairness Issues: Bias
It is common to feel that a decision-maker was biased when you receive a decision that goes against you. Bias in administrative proceedings usually only refers to very serious situations. It is not biased of a decision-maker to believe the other party instead of you, without other factors influencing the decision-maker’s decision.
There are two major forms of bias:
Individual bias: includes situations where the decision-maker may be reasonably perceived to have a monetary or material interest in the outcome of the decision, or a personal relationship with those involved in the dispute. For example, if the decision-maker was friends with the opposing party.
Institutional bias: includes prior knowledge or information about the matter in dispute, or a predisposition toward an outcome. For example, if the decision-maker advocated for a certain group, and then later decided an issue involving that group.
Some tribunals offer guidance on what to do if you think your decision-maker is bias. For example, the Residential Tenancy Branch has a policy guideline on bias and conflict of interest.
If you’d like to learn more about procedural fairness and how to do your own judicial review, please visit judicialreviewbc.ca. If you need legal advice about filing for judicial review, please see our Get Legal Help page to see if CLAS can assist you.
[1] Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 SCR 817, at para 28.
[2] Singh v Minister of Employment and Immigration [1985] 1 S.C.R. 177.
[3] Innisfil (Township) v Vespra (Township) [1981] 2 S.C.R. 145 at para 171.
[4] New Brunswick (Minister of Health and Community Services) v G.(J.), [1999] 3 S.C.R. 46.
[5] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para 127.
[6] Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, [2004] 2 SCR 650 at para 35.