Recently, we wrote about the standard of review in Ontario administrative law. This article will review another ground for judicial review of administrative tribunal decisions: procedural fairness. Procedural fairness, in short, is the right to fair and impartial decision-making, and does not consider the correctness of the decision made.  

Administrative Law Refresher

Administrative law covers relationships between individuals and the government or organizations that act on behalf of the government. In some cases, administrative law also covers relationships between individuals, for example, at the Landlord and Tenant Board. Administrative tribunals are bodies set up by the provincial government for the purpose of adjudicating certain disputes. These tribunals function like a court in that they make decisions on administrative law issues.    

Judicial review is the process which occurs when an individual challenges the decision of an administrative tribunal. That individual can apply to the court for a determination of whether an administrative tribunal decided appropriately. 

In some cases, the individual will ask the court to determine whether the administrative tribunal made a “reasonable” or “correct” decision. In other cases, the individual might challenge the decision on the basis that the decision lacked procedural fairness. 

What is Procedural Fairness? 

Procedural fairness is the principle that administrative tribunals must be unbiased and make decisions fairly. Rather than challenging the actual outcome of a decision, procedural fairness challenges the process in which a decision was made. 

In certain instances, the administrative tribunal’s governing legislation sets out certain procedural requirements that the administrative tribunal must follow. 

How Do Courts Determine Procedural Fairness? 

The level of procedural fairness expected can change depending on the circumstances. Some of the relevant factors for determining procedural fairness may include, but are not limited to: 

• The type of decision and the process used when making it;
• The governing legislation and statutory scheme governing the administrative tribunal, and what it tells the court about how the administrative tribunal is supposed to operate;
• The impact of the decision on the individual(s) affected;
• The expectations of the individual(s) challenging the decision; and 
• The choices of procedure that the administrative tribunal made. 

Procedural Fairness Issues

In an administrative law context, some examples of procedural fairness issues may include, but are not limited to:  

Governing Legislation

The tribunal must follow procedural requirements in the administrative tribunal’s governing legislation, otherwise, it is likely that the tribunal has failed to meet the appropriate level of procedural fairness. 

Delays

Administrative tribunals are expected to hear applications and make decisions without undue delay. If an application is not heard in a reasonable time, or a decision is unjustifiably delayed, it may amount to a failure to meet the procedural fairness requirements. 

Fair and Impartial Decision-Making

Administrative tribunals must make decisions fairly and impartially. If, for example, the administrative tribunal demonstrates a bias towards an individual, or the decision-maker was previously involved or had an external interest in the case, the decision may have lacked procedural fairness. 

The Right to Be Heard

An individual has both a right to present their case and a right to know about important information that impacts their case. For example, suppose a decision-maker receives information about the hearing that the applicant does not know about. In that case, they must provide this information to them with an opportunity to respond to it. 

Who Decides the Case

The decision-maker is the individual who renders the decision on the case. While many individuals might work on various aspects of a case, there is one person tasked with the responsibility of making the ultimate decision. If it is unclear who made the final decision, or it appears that the decision-maker was not actually the person who made the final decision, procedural fairness may be called into question. 

Expectations

An individual may have legitimate expectations regarding the procedural process which will be followed. For example, if an individual is told that they will have a certain amount of time to submit documents, but the  tribunal later advises that they need the documents sooner, this may question whether procedural fairness was followed.  

Reasons

The administrative tribunal must provide sufficient reasons for their decision. Such reasoning should be clear, reflective of the facts, based on information submitted by the party, and provide sufficient justification for the decision. 

What Happens if the Court Determines That a Decision was Procedurally Unfair? 

In a judicial review hearing, if the court determines that the administrative tribunal did not provide the applicant with the appropriate level of procedural fairness, the court will often set aside the decision and request that the tribunal decide the case again. This means that a new hearing date will be set and a different tribunal member will give the case further consideration.

Considerations for Procedural Fairness and Administrative Law in Ontario 

Concerns can arise when dealing with adminstrative decisions and assessing whether the appropriate level of procedural fairness was given to a particular decision. The first thing to consider is whether there were any statutory requirements regarding the level of procedural fairness a decision was owed. If no procedural requirements are outlined, the next step is to review the considerations which the courts used in determining the level of procedural fairness and existing jurisdpudence. 

Contact Campbells LLP for Guidance on Professional Regulation Matters

The administrative lawyers at Campbells LLP are thorough and efficient at creating the best possible outcome for each client regarding various administrative law and professional regulation matters. Our team understands the complexities which can arise in professional regulation cases which is why we are committed to providing comprehensive legal advice to clients throughout the process. If you have concerns regarding whether the appropriate standard of procedural fairness was followed regarding an administrative tribunal’s decision, please contact us online or call our office at (905) 828-2247.