CIVE 463 Lecture 5: Class 5_W3
25 May 2018
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Class 5: Duty of procedural fairess at coo law co’t
Today, Dunsmuir overturns as to the context of public employment, but the principles of Knight
are still taken to be valid.
Knight:
• Interesting thigs: 7 judges court (usually 9), like Nicholson, it is a close call, 4
(L’Heureux-Dubé) v 3 (Sopinka): huge split in terms of the rationale that is offered,
however in terms of the outcome, everyone agreed: Knight did not have a claim to any
more procedural protection than he received.
• Facts:
o Director of school board, 3 year contract. At the end, the Board said that it would
review the K and then renewed on a 1 year basis, Knight was not happy, wanted 3
years again, and then Board said, with 3 months notice that they were dismissing
Knight. Education Act: if parties said nothing - minimum of 30 days notice; but if
contract, respect the contract, here indeed K: 3 months.
o Kight applied for judicial review: even administrative decision - you need some
reasons, as in Nicholson. Fails at 1st instance and succeeds at Court of Appeal: it
would be unfair for Knight, as the Board should let him know why he is let go.
SCC, majority: yes, owed Duty of procedural fairness, but you got it through the
attempted renegotiation of the K. → threshold Q: when the duty of fairness
applies.
o Important part of Knight: the content of procedural fairness is imminently
variable, highly contingent on context.The idea, not for the courts to try to
replicate their procedures or rules of natural justice in administrative settings to
make it look like a court, but rather give the individual the opportunity to receive
notice, and some opportunity to change the mind of the decision maker. The form
does not really matter. Main point: opportunity for the agreeved party to get his
voice heard.
• Doctrine in Knight from L’Heureux-Dubé
o 2 keys of the duty:
o 1. when the duty of procedural duty applies (threshold)
▪ 3 factors to take into account
• a. whether the decision is specific to an individual or a policy
decision = non-legislative in nature (because they do not attract
the CML duty of fairness) → legislative exception to the duty of
fairness
• b. Is this decision final? Is the decision made as part of an
investigation leading to final decision?
• c. What is the relationship between the parties? Office of
pleasure? For cause? Master-servants?
o Here both
▪ master-servant: Knight has a K with the Board so
subject to CML rules of employment, i.e. no
justification for firing people, notice is enough + 1
pay period, or pay in lieu of notice.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Class 5: duty of procedural fair(cid:374)ess at co(cid:373)(cid:373)o(cid:374) law co(cid:374)"t. Today, dunsmuir overturns as to the context of public employment, but the principles of knight are still taken to be valid. Fails at 1st instance and succeeds at court of appeal: it would be unfair for knight, as the board should let him know why he is let go. 2 arguments set forth by the majority of. Makes a context where the board needs to justify the dismissal. In knight, l"h-d offers a variety of arguments in favour of the cml duty of procedural fairness (i. e. legitimacy & accuracy, see above). In his dissent, sopinka claims that the majority in knight would in effect turn an office held at pleasure into one from which an employee could be dismissed only for cause. Since the duty of fairness will in practice require decision-makers to give reasons for dismissal.
