Investigating Process, Substance and Procedural Fairness
Canadian administrative law is different in many ways from that of other Commonwealth jurisdictions, but on one question it (for the most part) clings doggedly to an old mantra: procedural questions are for the courts alone to decide, without any deference to decision-makers. This orthodoxy has recently been challenged as a matter of principle. But it is worth noting that the orthodox approach often raises difficult questions of classification. Yes, procedural questions are for the courts and no deference is accorded; but matters of substance are for decision-makers, reviewable on a deferential standard. Where is the line located?
Robertson v. British Columbia (Teachers Act, Commissioner), 2014 BCCA 331 is an especially instructive recent case, because the members of the Court of Appeal could not agree amongst themselves on whether the issue raised was one of process or substance.
R is a teacher who allegedly had inappropriate sexual relationships with students in the 1970s. When the allegations were initially made, he resigned his position and took a teaching job in another district — without disclosing the allegations. Due to uncertainty about who, if anyone, had jurisdiction to discipline R, matters lay in abeyance for many years. It was not until the mid 2000s, when one of the former students learned that R was still teaching and made a complaint, that R’s file was reopened. R unsuccessfully sought from the respondent a stay of the investigation on the grounds of res judicata, abuse of process and delay.
In British Columbia, standard of review issues are regulated by the Administrative Tribunals Act: correctness review is provided for in respect of some questions (including procedural ones); deferential review in respect of others (including exercises of discretion). The issue here was whether delay was a matter of procedural fairness; or alternatively, whether the respondent’s denial of a stay was an exercise of a discretionary power.
For the majority, Garson J.A. came down on the side of fairness:
 I conclude from these authorities that properly characterized the question that was before the panel in this case, was…a question “about the application of common law rules of natural justice and procedural fairness [that] must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly”. It is true that the type of decision the Panel made could be described as a discretionary one…A discretionary decision is generally one requiring the application of judgment in choosing among a range of acceptable alternatives. Here the real question to be decided is whether the delay constituted an abuse of process. This question requires a correct response. Whether to accede to an interlocutory application to quash a citation may on its face appear to seek a discretionary remedy but the core question to be determined is one that must be answered correctly, not one that is a choice between a range of acceptable outcomes…
Though one should note that her application of the principles was leavened with some deference. Garson J.A. upheld the respondent’s decision, concluding as follows, at para. 80: “Although the standard of review is not a deferential one, the panel in its specialized role is in a good position to appreciate the public impact of its decisions. I agree with the panel. In my opinion permitting Mr. Robertson to avoid facing a disciplinary hearing in these circumstances would carry with it a serious risk of bringing the regulatory process into disrepute”.
Willcock J.A. dissented. In his eyes, the fact that principles of fairness or natural justice had to be considered by the respondent in determining whether or not to grant a stay was not determinative. At issue was a discretionary power, whose exercise was influenced by those principles:
 I part ways with my colleague in relation to the identification of the mandated standard of review…I would classify the central decision from which the judicial review application was brought in this case as a determination by the panel that permitting the sexual misconduct complaints against Mr. Robertson to proceed to a hearing would not amount to an abuse of process by the regulator. That decision required the panel to make findings of fact (whether there would be procedural prejudice, for example) findings of law (such as whether responsibility for delay before the establishment of the current or most recent regulatory regime should be attributed to the Commissioner) and the exercise of a discretion (weighing in the balance the public interest in addressing the complaints on their merits against the public and private interest in fair adjudication). Such decisions…must not be interfered with unless patently unreasonable.
 …Here, in my view, the panel was not addressing a question about the application of rules of natural justice or fairness. Rather, it was addressing the substantive question whether the proceedings amounted to an abuse of process, considering both procedural and other prejudice and the public interest in this specific disciplinary process, which is a matter closely connected to its function…
Paradoxically, although applying a more deferential standard of review, Willcock J.A. struck down the decision as unreasonable. He was of the view that that respondent’s decision “to dismiss the preliminary application to stay the sexual misconduct allegations was founded upon the mistaken view that, for some purposes, only the 2006-2010 delay ought to be considered” (at para. 100), leading it to place “an inappropriate burden upon [R] to establish prejudice by describing the procedural prejudice that might arise from a 30-year delay as speculative and requiring [him] to adduce actual evidence of prejudice” (at para. 110).
Deference on questions of procedural fairness is not a panacea: difficult borderline questions would doubtless still arise. But the sort of issue in the instant case arises often enough that avoiding it altogether would be valuable. It is further ammunition to the argument in favour of fusing the two poles of substantive and procedural review in Canadian law.
As Annis J. put it in David v. Canada (Attorney General), 2014 FC 358, where the question was “whether the acknowledged requirement of thoroughness of an investigation by the Commission is to be considered as part of the reasonableness analysis or whether it is a matter of procedural fairness subject to a correctness standard of review” (at para. 53),
 I would like to think that Dunsmuir was intended to overcome much of the inordinate complexity that had weighed down the whole issue of standard of review and administrative law generally. To introduce fuzzy concepts of procedural fairness based on the contents of the duty into the exercise of a discretion said to be measured in terms of its reasonableness, or vice versa to permit deferential reasonableness to be a factor in determining the boundaries of correctness, would be moving away from the relatively bright lines established by Dunsmuir.
This content has been updated on October 2, 2014 at 11:42.