PPAL 6120 Ethics, Privacy and Access to Information

PPAL 6120Ethics, Privacy and Access to Information April 7, 2009 Ian Greene

Procedural Fairness, Natural Justice, and Administrative Tribunals • Introduction to Administrative Law (Greene) • Prof. Roger Rickwood will do a presentation on the Dunsmuir decision (decision on class web page) • Mullan, Ch 8: Diana Morris • Mullan, Ch. 13, Parts B and C: Heddy Cordova • Mullan, Ch. 13, other parts: Ian Greene • Mullan, Ch 15 Parts A, B and C (pp. 350 – 372): Ian Greene

Framework • I approach public law as a social scientist, and as someone with experience in the public sector • Social science framework: • Judges are invited to make decisions based on arguments presented by lawyers • When faced with conflicting precedents, most judges choose the one that’s “most just” • Thus, status of many issues in admin law unclear • Procedural fairness is a legal implementation of the ethical principal of mutual respect. Judges don’t just “find” law; they do their best to promote “justice.” • Public sector experience • Try to set up procedures that are both fair and efficient • Knowing something about the law about fair procedures is helpful

Natural Justice • Audi alterampartem • “hear the other side” • Principle gives rise to procedural fairness • Nemo judex in sua causa • “Don’t be a judge in your own cause” • Impartiality principle • Natural Justice is • a common law principle, and reflected in • S. 7 of the Charter: “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.” • Can Bill of Rights 2(e): “…right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations,” and 1 (a): “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law” (a “quasi-constitutional” document)

What are fair procedures? • Context specific • Eg. York’s student code of conduct • “the Respondent will be allowed a reasonable amount of time to consider the Complaint against him or her and to respond to it….” • Public sector organizations develop their own decision-making procedures; courts decide whether the procedures are fair • Ontario Statutory Powers Procedure Act: applies to Ontario administrative tribunals • Acts creating tribunals have their own specific procedures enumerated

Section 11 of Charter • 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.

Judicial Review • Even with a privative clause in place (preventing an appeal), a superior court can respond to an application for judicial review on the grounds of jurisdiction, “unreasonableness,” or “correctness” • “Patent unreasonableness” and “reasonableness simpliciter: (in Dunsmuir, McLachlin wrote they are the same) • Whether “correctness or unreasonableness: • Depends on how much deference a court wants to show to an administrative tribunal

Functions of public bodies • Judicial or quasi-judicial (makes decisions involving rights or obligations): rules of natural justice apply • Legislative: policy-making • Administrative: policy application • Duty of fairness: principles of natural justice apply to decision-making processes in legislative and administrative bodies to the extent that it is reasonable for them to apply

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1979) • Nicholson – probationary police officer, dismissed without knowing the case against him, and without being able to respond • Supreme Court of Canada: The Board has a duty to act fairly – to give Nicholson the opportunity to respond to criticisms either orally or in writing (as determined by the Board) • Board’s “function” is purely administrative

Martineau v. Matsqui Inmate Disciplinary Board (1980) • Procedural entitlements based on natural justice should operate “on a spectrum or sliding scale” • The functions of administrative tribunals can rarely be classified as purely quasi-judicial, or legislative, or administrative

Dunsmuir (2008) • Prof. Roger Rickwood • Difference between a “statutory officer” (who would enjoy the procedural safeguards developed in Nicholson) and a contract employee • SCC seems to be moving away from the Nicholson approach

Martineau cont’d • In cases where being quasi-judicial matters, consider the following: • Language of the empowering legislation • Whether the decision affects the rights and obligations of the applicant for relief • Whether the adversary process is involved • Whether the issues necessitates the application of “substantive rules to many individual cases,” as opposed to determining “social and economic policy”

Other considerations • Knight was superintendent of a school board, hired “at pleasure” • Even if “at pleasure,” duty of fairness means that Knight has a right to try to have the opportunity to persuade the board to change its mind. (Knight, 1990) • What if a position is simply eliminated? No duty of procedural fairness (Wells, 1999) • What if a political appointee is fired by a new government? Mullan – no definitive jurisprudence

Baker v. Canada(1999) • Ms. Baker an illegal immigrant from Jamaica who had had children in Canada • Applied to stay in Canada on Humanitarian and Compassionate grounds • Ministerial discretion administered on Minister’s behalf by employees of CIC • Ms. Baker’s application turned down without considering impact on her children • Supreme Court of Canada: although a purely administrative decision, duty of fairness applies. Baker entitled to a) see the decision and respond, and b) entitled to impartiality • Case sent back to CIC for re-consideration. Baker was allowed to stay in Canada on H&C grounds • CIC entered into several agreements with York’s Centre for Practical Ethics to train decision-makers on “ethical decision-making”

Baker (continued) • In spite of Baker’s win, the SCC did not provide Baker with all the procedural safeguards she asked for. She did not get • Right to an oral interview (paper hearing enough) • Requirement of notice to her children and other parent • SCC recognized that choices of procedures made by decision-makers are “worthy of respect;” defer to expertise of decision-makers. Courts don’t have a monopoly on understanding fairness and good administrative procedures.

B.C. Motor Vehicle Act case (1985) • A law that creates an absolute liability offence (you can be found guilty even if you are not aware that you had offended – eg. by failing to pick up the registered letter informing you that your license is suspended due to too many points) violates fundamental justice if the result is loss of liberty (jail).

Mullan, Ch 13Audi Alteram Partem • Remember S. 96 of the CA, 1867 • Heddy Cordova on Notice and Discovery • Nature of Hearings: • Are they necessary? (Baker: not in that situation) • If necessary (as in Singh), how formal? • Timing: Situation specific • York student code of conduct: flexible. • “reasonable” notice • Unnecessary delay or haste a perennial issue • Has the delay or haste been prejudicial to applicant?

Mullan Ch 13 • Open or closed hearings? • Depends on the needs of particular processes • Disciplinary hearings or grievance hearings usually closed to protect privacy • Court hearings usually open to ensure transparency (but Max Wyman questions this) • Challenges to closed hearings thanks to Charter S. 2(b): freedom of expression • Alternative: publication ban on part or all of certain proceedings (eg. young offenders)

Representation • Representation • More complex the case, the more representation is necessary and also useful (SRL problem) • Harry Arthurs (legal pluralism): keep lawyers out whenever possible • In some tribunals legal representation is prohibited – eg. refugee applicants at point of entry (SCC: would unnecessary slow down and complicate); some university disciplinary processes (used to be the case at York)

Confidentiality • General duty to reveal all relevant material affecting decision-making in tribunals • Right to know the case against you and reply to it • What is reasonable? • Eg. investigation of student complaints • Exception – bodies that are more policy-making and less adversarial • You’ll consider this in greater depth when considering access to information vs. privacy

Official Notice • Similar to “judicial notice” • Judges can refer to generally know facts that are not presented as evidence (eg. Dickson and dairy cows in the Saskatchewan dairy workers case – part of labour trilogy) • Members of tribunals can exercise “official notice”

Cross-examination • Courts will generally back up a right to cross-examination in tribunals that are adversarial • Courts may back up limits to cross- examination in processes that are more inquisitorial in nature (eg. grievance hearings)

Limits to delegation • Generally, a tribunal cannot delegate its authority • Important that decisions are made by those who have assessed relevant information • In certain situations, information gathering can be delegated

Right to have a matter decided based on evidence and arguments presented at hearing • There is a tendency for those appearing before tribunals to introduce evidence or arguments not related to the legal issues at stake • Important to narrow the issues to be decided • Look at the “law” (eg. a collective agreement), the position of the applicant (eg. grievance) and relevant evidence.

Reasons • Courts must provide reasons • What about administrative tribunals? • Baker (1999): in certain circumstances, the provision of reasons by decision-makers is part of the duty of procedural fairness • Nature of the reasons is important: clear, no unnecessary verbiage, persuasive, brief

Adjectival or ancillary powers of administrative tribunals • What additional powers can a tribunal exercise to carry out its functions? • Entick v. Carrington (1765): Entick successfully sued a cabinet minister for illegal search because the law did not authorize a search without a search warrant • Jurisdiction of tribunals to deal with constitutional cases (including the Charter) • Depends partly on statute creating the tribunal • Tribunals can’t duck constitutional issues • Tribunals lacking competency to consider constitutional issues can state a case to a superior court asking the court to resolve the issue

Other issues • Delegation -in general, those to whom power is delegated cannot themselves further delegate -Courts have nevertheless approved sub-delegation in some cases, but the original holders of the power can resume it at any time

PPAL 6120 Ethics, Privacy and Access to Information