Presentation Transcript

1. Administrative lawBeing heard and bias

   LGL126

2. Fairness: Right to be Heard
3. So just where are the fairness rules? Originally and still today, the common law Statutes that created the ABC in the first place, sometimes The Statutory Powers Procedure Act for many, but not all, tribunals The Charter—which in turn is interpreted by judges
4. More complex; procedure more formal and court-like; tribunals and quasi-judicial decisions at end of spectrum → ← Less complex matters, less procedural complexity Purely administrative Quasi-judicial
5. Legitimate expectations If reasonable to believe government will consult before making decision, then entitled to be heard before decision Procedural fairness If impact on particular group greater than on the whole, that group entitled to: Notice Be heard Impartial decision-maker Natural justice If quasi-judicial, entitled to: Notice Hearing Impartial decision-maker Present and cross-examine evidence Make submissions Record of proceedings* Representation*
6. Baker v. Canada (Minister of Citizenship and Immigration) Facts on p. 140 Supreme Court of Canada ruled that fairness is fluid and depends on: Where along spectrum decision falls What does statute provide for? Importance of decision Legitimate expectations
7. List is not exhaustive Court very clear that Baker not final word Procedural fairness and even natural justice will vary depending on ABC
8. Right to be heard Not same as right to hearing, full-blown court-like events, with all parties present in one place at one time As rights get more serious, more likely that hearing required Otherwise, “right to be heard” may be honoured by simply having an informal talk with DM or filling in a form
9. Components of “being heard”
10. Should decision-maker listen to all sides before making a decision? Ought you be told when the hearing is and what it’s about? Should you know about the evidence before the hearing? No Adds time; ask for adjournment if ambushed Yes Know the issues and have time to prepare Yes Audi alterampartem Yes No point having hearing if no one’s there Generally speaking, should you be at the hearing? What could you do to lose the right to attend? Can you have a representative? Yes Complicated things, these tribunals Don’t show Be abusive Walk out Sensitive information Of course What’s the point of “being heard” if you can’t lead evidence? TESt Evidence Cross examine or cross questioning generally permitted What would cause a tribunal to suspend any right to a representative? Can I present evidence at a hearing? If I get to lead evidence, I should be allowed to … ? Abusive Milking tribunal for adjournments Incompetent What kind of evidence should never be led? Should DM consider: Only the evidence? Anything DM likes? After someone hears the matter, who should make the decision? The DM Consultation is OK Substitution if necessary Abusive, “scandalous” Immaterial Irrelevant Generally, only the evidence Administrative notice is OK
11. Audi alterampartem “Hear the other side” All sides have right to be heard, otherwise not fair
12. Notice Fairness demands that you know what the issues are and that you have time to prepare When a decision is made, parties entitled to know basis of decision
13. Notice of evidence? Generally not entitled to disclosure, but if ambushed, party can ask for adjournment If a frontline worker generated notes and the notes form part of the basis of the decision, those notes must be kept
14. Entitled to be at hearing Part of being heard is physically being there if oral hearing held If you attend, no part of hearing should be conducted without you present You can waive this right by: Not showing up Being disruptive Walking out
15. No right to attend Sometimes, cases call sensitive evidence and the parties are expected to keep information they learn secret If keeping secrets is a problem for a party, the party may lose its right to attend
16. Right to representation In quasi-judicial settings, a party generally has a right to representation Normally, parties pay their costs, but the courts can order government to pay for a party’s lawyer
17. Abuse of right of representation A party can ask for adjournment after adjournment on grounds he or she is still trying to retain counsel If persists, the tribunal can proceed despite the lack of representation An incompetent or abusive representative can be removed These are inherent powers of a tribunal
18. Right to present evidence No point getting notice, showing up, having a paralegal and not getting to present evidence Parties can use tribunal process to issue summons to compel attendance (and force witness to bring documents)
19. Not all evidence created equal Big procedural power of tribunal is to control evidence: must be relevant and material, and not “scandalous”
20. Right to test evidence of other side Part and parcel of leading your evidence is testing evidence of other parties Cross-examination is the approved method Crosses are not permission to abuse the other side Some tribunals only permit “cross-questioning”
21. No delegation Generally, only person hearing the case can make the decision Sometimes necessary to delegate: death of adjudicator, for example OK for adjudicator to consult, but consultation cannot have effect of making decision If one side consulted, other parties should be there If new issues raised, everyone gets a chance to comment
22. Decision should be based solely on evidence Parties entitled to know why tribunal decided as it did For fairness reasons, tribunal not permitted to look beyond the evidence raised and tested at hearing Doctrine of administrative notice permits tribunal to use facts everyone knows or should know when deciding
23. Right to fast decision; right to written reasons Decisions are better rendered quickly than slowly The more prejudicial delay is, the stronger the requirement to render decision fast Reasons must be given Where decision could be appealed or rights are significant, written reasons may be required
24. Chapter 7 Fairness: Bias
25. Individual impartiality Two flavours Is this particular decision-maker (DM) free of bias, that is, approaching things with an open mind? Are DMs in general functionally independent of the rest of the agency? Institutional impartiality
26. Actual, individual bias Very, very tough to show Courts uninterested in proving real bias—it affects the reputation of legal system in general
27. Reasonable apprehension More prone to find than actual bias, and easier to prove Would a well-informed, reasonable and practical person, thinking it all through, believe the adjudicator would make an unfair decision consciously or unconsciously
28. Awkwardly worded test Judges realise that ABCs not independent as courts are Some overlap between executive and their ABCs is tolerable
29. Badges of biasPage 148 Conflict of interest Meetings with onlyone side Close friendship, previous business or social relationship, family connections or history of animosity or litigation Strong, public view generally Seems to have made up mind before end of hearing DM’s interruptions clearly favour one side Takes gifts from parties
30. Institutional Bias
31. Independence Boards need the same kind of independence from other branches of government that courts enjoy Courts are independent because: Excellent pay Tenure Control of their process No administrative tribunal can achieve this level of independence
32. Institutional impartiality  Institutional Bias Fixed terms At pleasure Long fixed terms Short fixed terms Fixed salaries “At will” salaries Full time Part time
33. Institutional impartiality  Institutional Bias Free to make decision Bound by policy One person is judge,jury and executioner Investigation, prosecution, adjudication functionally separated Random appointment of panels Chair has discretion to appoint panels Staff hired byGovernment Staff hired by agency
34. No one test for institutional bias Everything in context If any of those indicia are on the “bias” side, but required by statute, and statute constitutional, bias argument will fail
35. Raising the allegation Telling someone they are biased is tantamount to calling them dishonest Be quick about it Be discreet—put on the record as last resort Be tactful
36. Midterm—E. & O.E. 50% 10 multiple choice 15 short answer/fill-in-the-blanks 25 marks of slightly longer questions One, double-sided, 8½” × 11” sheet of paper