CIVE 463 Lecture 8: Class 8_W4
25 May 2018
School
Department
Course
Professor
Class 8: Content of the duty of fairness
1. Impartiality: right to have case heard by impartial and reasonable person
a. Norm of impartiality: doctrine = reasonable apprehension of bias. If the decision
or what happens in the decision making context, ex. saying things that reveal bias,
ex. discriminatory, these things would get rise to apprehension of bias. The
decision itself in principle could give rise to an apprehension of bias.
b. EX. Baker applies for mercy under humanitarian and compassionate ground of the
minister. The court had always said that no procedural fairness here - absolute
privilege - no right to make a claim at all - only if the minister is ‘of the opinion’
that the grounds that are of such a degree that they can bend the rules.
c. When you look at the reasons, and the court, so far as the assessment of
impartiality, when the court finds that there is apprehension of bias as to the
reasons of the decisions, it brings in an analysis of the quality/scrutiny
(substantive analysis) of the reasons to evaluate them. Interesting because the
court like to make bright line distinction that then here seem not so bright line →
but since it is procedure, akin to the natural rules of justice, which the judges are
the masters of, so no deference = application of correctness standard.
d. = institutional framework in which procedural fairness navigate - if does not
hold through, everything collapses. EX. cannot have someone taking a bribe
in making the decision
2. Participatory rights
a. During the decision-making process
3. Duty to give reasons
a. The discussion of it comes after the content of the DF in Baker.
b. Decision → after the decision is made you have the duty to give reasons.
c. Before in CML, no general duty to give decisions. Only exceptions, no general
duty. EX. liberty of the person, liberty interest of significance, only fair and
necessary that the person is given reasons.
d. In Baker, the court seems to say that in some circumstances, duty to give reasons.
The circumstances are when important or significant interest at stake. No legal
interest. EX. Baker had no legal right to stay in Canada, but had a practical
interest: 4 children born in Canada.
i. Baker: If important and significant interest at stake, duty to give
reason.
ii. But is that duty symbolic (quantitative)? (i.e. does the decision maker
have to give some reasons) OR give reasons of some kind, i.e. ones that
justify the decision at hand, looking at the adequacy of substantial
content of reasons (qualitative)?
e. Nurses: the judge says that no general duty to give reasons was framed in Baker,
in practice, most cases involved significant practical interest making the duty to
give reasons akin general duty.
i. Fact: one of the argument made by individual = arbitrators reasons were so
lacking and insufficient that they did not amount to reason. Prima facie,
the SCC was not taken by that claim because there were 12 pages
provided by the arbitrator. The only way to give reason to appellant is to
Document Summary
Class 8: content of the duty of fairness: impartiality: right to have case heard by impartial and reasonable person, norm of impartiality: doctrine = reasonable apprehension of bias. If the decision or what happens in the decision making context, ex. saying things that reveal bias, ex. discriminatory, these things would get rise to apprehension of bias. The decision itself in principle could give rise to an apprehension of bias: ex. Baker applies for mercy under humanitarian and compassionate ground of the minister. Ex. liberty of the person, liberty interest of significance, only fair and necessary that the person is given reasons: in baker, the court seems to say that in some circumstances, duty to give reasons. The circumstances are when important or significant interest at stake. Prima facie, the scc was not taken by that claim because there were 12 pages provided by the arbitrator.
