CIVE 463 Lecture 7: Class 7_W4
25 May 2018
School
Department
Course
Professor
Class 7: Limitations on the scope of the Duty of fairness
When does the duty apply? Nicholson; Cardinal: broadest affirmation by Dickson J;
Limits on duty of fairness
Inuit Tapirisat
• Fact: interaction between a group that represents Inuit and Governor General, i.e. first
point of contact with whom the Inuit can complaint. Inuit want better coverage from Bell
over their land. Inuit argued to CRTC: Bell wants to raise rates but use this to leverage
this for better services. Inuit did representation to the CRTC, was left on the side.
Governor in council could vary, rescind or change any order of the CRTC, so Inuit
petitioned the Governor in Council, since their petition was set aside. Court came to the
conclusion that Inuit were not owed a duty of fairness.
• Inuit v Bell, goes to CRTC, goes to Cabinet. SCC says Cabinet can do whatever.
• Policy v Legislative decisions
Canada Assistant Plan
• Sopinka (dissent in Kinght)
• Fact: cannot cut transfer payment except in agreement of the statute that enshrined
agreement. Government was determined by the austerity measure. BC’s plea fails
because of parliamentary sovereignty - it is a Legislative decision, and policy decision.
• BC invokes doctrine of legitimate expectations
Dunsmuir
• Knight: if someone was a contractual employee but office had a statutory flavour to it,
you could argue that the individual like Knight was entitled to procedural fairness.
• SCC decides to revisit Knight Duty does not apply in employment relationship were there
is a contract, the Crown is similar to private contractor. SO to the extent that procedural
fairness is due, that is to the parties to defines. So the Crown is allowed to dismiss with
not more than reasonable notice (or pay in lieu of notice) and without showing cause.
• Pay in lieu of notice is a way to terminate but has nothing to do with grounds of notice.
Discussion questions
Question 1
• In Inuit, Estey J says that the Governor in Council’s decision is legislative action at its
purest form, and, by affecting many parties, the decision-maker owes no duty of fairness
to any single party. Should procedural fairness only be invoked when the matter is an
individual (as opposed to group) concern? Should the nature of the petitioning party have
any impact on this determination? Should an indigenous representative body be owed
different duties and according to which doctrine or instrument?
o Here the decision is not legislative, it is policy! Could consider in our world of
today, Nunatsiavut Government
o It is a question of the type of decision that is being made, rather than which
parties being involved.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Class 7: limitations on the scope of the duty of fairness. Inuit tapirisat: fact: interaction between a group that represents inuit and governor general, i. e. first point of contact with whom the inuit can complaint. Inuit want better coverage from bell over their land. Inuit argued to crtc: bell wants to raise rates but use this to leverage this for better services. Inuit did representation to the crtc, was left on the side. Governor in council could vary, rescind or change any order of the crtc, so inuit petitioned the governor in council, since their petition was set aside. Court came to the conclusion that inuit were not owed a duty of fairness. Inuit v bell, goes to crtc, goes to cabinet. Scc says cabinet can do whatever: policy v legislative decisions. Canada assistant plan: sopinka (dissent in kinght, fact: cannot cut transfer payment except in agreement of the statute that enshrined agreement.
