Procedural Fairness

Chapter 8 in Mullan
Diana Morris
April 8, 2009
Mullan begins explaining procedural fairness rights by
justifying oral or in person hearings.
II. Then proceeds with outlining relevant constitutions
Canadian Charter of Rights and Freedoms (CCRF)
Canadian Bill of Rights
III. Common law cases where the principle of “procedural
fairness” rights were not applied in the original
Cooper v. Board of Works for Wandsworth District
Board of Education of the Indian Head School Division No.19 of
Saskatchewan v. Knight.
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police
Justifying administrative process
Justification of oral or in-person hearings= procedural fairness.
• There is a sense that these types of hearings will produce better and
fairer outcomes because plaintiff’s can hear all the evidence and listen to
all the various perspectives on a question.
•Also, affected parties would be more likely to accept the outcome when
they participate in a hearing versus a decision being made in secret by
faceless or nameless bureaucrats. Their participation in the decision
making process would involve being able to confront the actual decision
maker. This also contributes to the belief in the participation in a
democratic process.
•There is also an accountability aspect. Open courtrooms force the
decision maker to be more careful and reflective in the ways they act and
in the conclusions they reach because they are subject to public scrutiny
and criticism.
Sources of Process Claims:
Constitutional and QuasiConstitutional
 Canadian Charter of Rights and Freedoms (CCRF)
According to Mullan, the CCRF is the clearest source of
constitutional protection for procedural claims in Canada
because it enshrines a right to “the fundamental principle of
justice”. S. 7 and S.11 of the Charter are subject to legislative
override created by s. 33(1) notwithstanding clause.
Therefore, there is a justifiable reason in a free and democratic
society for not providing the benefit of the “principles of
fundamental justice” when “life, liberty and security of the
person” is at stake.
Relevant legislation
 1982 Canadian Charter of Rights and Freedoms
Section 7
Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
Section 11
Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a
reasonable time; (c) not to be compelled to be a witness in proceedings against that person in
respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail
without just cause; (f) except in the case of an offence under military law tried before a military
tribunal, to the benefit of trial by jury where the maximum punishment for the offence is
imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of
any act or omission unless, at the time of the act or omission, it constituted an offence under
Canadian or international law or was criminal according to the general principles of law recognized
by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if
finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if
found guilty of the offence and if the punishment for the offence has been varied between the time
of commission and the time of sentencing, to the benefit of the lesser punishment.
Section 33 (1)
Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the
legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a
provision included in section 2 or sections 7 to 15 of this Charter.
Sources of Process Claims:
Constitutional and QuasiConstitutional (Cont’d)
 The Canadian Bill of Rights and Various Provincial
Bills of Rights
The principal provision of this Bill that pertain to procedural
claims within the administrative process are;
s. 1(a) provides a “due process” guarantee when life, liberty,
security of the person and enjoyment of property are at
s. 2(e) ensures, “the right to a fair hearing in accordance with
the principles of fundamental justice” whenever a person’s
“rights and obligations” are being determined.
NOTE: the difference between the Bill of Rights (BR) and the
Charter is that the B.R provides a useful source of
constitutionally protected procedural rights in the federal
domain not covered by the Charter.
Examples of Common Law
Cooper v. Board of Works for Wandsworth District
Background of case- The Wandsworth District Board tore the
plaintiff’s (Cooper) house down without notice, because he had
failed to comply with The Metropolis Local Management Act.
The Act required the plaintiff to notify the board seven days
before starting to build the house. Cooper argued that even
though the board had the legal authority to tear his house
down, no person should be deprived of their property without
Cooper explains that the strongest claim for a hearing in the face of
legislative silence is in cases where the claimant’s property or physical
person is being affected by the decision. No man is to be deprived of
his property without having the opportunity to be heard.
Common law cont’d
II. Board of Education of the Indian Head School Division
No.19 of Saskatchewan v. Knight
ISSUE- Knight’s position as superintendent of a school board was
held at pleasure. The rationale for dismissal was that it was a
“pleasure” position. He was removed for non personal reasons.
Nonetheless, he was entitled to a degree of procedural fairness.
Knight should have been awarded the opportunity to try to
persuade the board to change their mind. Requiring a hearing
would impose better controls and ensure greater public
accountability for their exercise.
Supreme Court of Canada, justice L’Heureux-Dube J decided that
there was a general right of procedural fairness, autonomous of
the operation of any statue. In this case, she considered whether
the plaintiff’s procedural entitlements had been excluded by the
legislation or by contrast. She believed that procedural fairness
claims could withstand specific legislative exclusion.
Common law cont’d
III. Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police (landmark reform of administrative
ISSUE- Nicholson, a probationary police officer who was employed for a
period of 18 months and was later dismissed from his job with no reason
given and no opportunity for a hearing. According to relevant regulation
provided that chiefs of police and other police officers and constables are
entitled to “hearing” and an appeal against dismissal. However, this does
not apply to individuals who have less than eighteen months of service
Mullan queries, did this case present two levels of requirements (1)
natural justice applicable to judicial and quasi-judicial functions and (2)
procedural fairness applicable to purely administrative functions?
According to the principles of “procedural fairness” Nicholson should
have been given the opportunity to respond to criticism of his
performance before he was dismissed, either orally or in writing.
The Supreme Court decided that Nicholson should have been given the
opportunities available under the procedural fairness principle.