CIVE 463 Lecture Notes - Lecture 4: Natural Justice, 18 Months, Positive Law
25 May 2018
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Class 4: Emergence of the duty of procedural fairness
Duty of procedural fairness: before a public decision maker can take a decision that will infringe
on one’s rights, interests and privileges, the decision maker has to provide process or procedure
to that group. Not so much a content question, i.e. what procedure consists in; more a threshold
question: does the duty apply at all.
Nicholson
(Roncalli - Nicholson (procedure) - Kupi (procedure: review of substance) - Baker (1989 -
Dunsmuir (recalibrate the standard of review - 2008)
prior to Nicholson: no pre-standing right to procedural fairness. The term fairness attached to
procedure, did not arise in CML until 1960s in Baldwin. Prior to that, rules of natural justice
existed, i.e. apply to the procedure of a court (cross-examine witness, be heard by
impartial/independent judge, counsel, right to some disclosure). All of these elements of
procedure were understood as rights/duties of natural justice.
The framework that was used to know if natural justice would apply: is that formally not judicial
context nevertheless judicial or quasi-judicial: who are the parties? Does what the decision
maker is doing looks like administration, ex. Archambault in Roncarelli, no procedure would
apply because rules of natural justice would not apply, whereas if it looks at adjudication, then
the principles would apply.
Courts were ready to recognise legal duties to decision making: requirement in Statute (statutory
anchor) + superadded judicial quality to the decision context.
Nicholson: employment case
Context. Ridge v Baldwin: also an employment case - as a constable. Articulation of a
framework to articulate if a duty of fairness is applicable to an administrative decision (rather
than adjudicative)
1. Master servant - contractual employment: someone can be dismissed given noticed (or
even summarily without notice, before)
2. Holding an office at pleasure: hired at pleasure of a minister, or a police - dismissed
without the benefit of a hearing or reasons for your dismissal.
***Functionally hard to see between 1 and 2 in terms of dismissal
3. Holding an office for cause: failure in performance that justifies the dismissal & some
kind of a procedure to see if lack of performance or bad conduct is justified as put
forward by the administration and what are the appropriate sanctions.
In Baldwin: hold at pleasure - but if there was negligence from the constable, then could be fired
without justification. Duty to act fairly, because we cannot really imagine a process that puts the
person’s behaviour on scrutiny without hearing that person. → no statutory requirement for a
hearing but was implied.
Nicholson.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Class 4: emergence of the duty of procedural fairness. Duty of procedural fairness: before a public decision maker can take a decision that will infringe on one"s rights, interests and privileges, the decision maker has to provide process or procedure to that group. Not so much a content question, i. e. what procedure consists in; more a threshold question: does the duty apply at all. Nicholson (roncalli - nicholson (procedure) - kupi (procedure: review of substance) - baker (1989 - Dunsmuir (recalibrate the standard of review - 2008) prior to nicholson: no pre-standing right to procedural fairness. The term fairness attached to procedure, did not arise in cml until 1960s in baldwin. Prior to that, rules of natural justice existed, i. e. apply to the procedure of a court (cross-examine witness, be heard by impartial/independent judge, counsel, right to some disclosure). All of these elements of procedure were understood as rights/duties of natural justice.
