Some Last Words on Procedural Fairness
I am rusty on civil procedure — because I do not pay enough attention to Karim Renno’s torrent of excellent posts! — but I think I am entitled to a response to his reply to my defence of deference on questions of procedural fairness. Whether he wants a sur-reply is up to him; by then my ability to counter punch will have been exhausted.
There are simply matters – as I discussed in my first post – that are too important to accept that they are beyond the reach of the easy intervention of higher courts. Procedural fairness is one of those matters. As previously argued, procedural fairness is at the unassailable core of rights everyone is entitled to. Getting it wrong on that topic is simply not an acceptable option.Every system needs checks and balances, and that’s even more true for the justice system. While reasonableness review is a check, it’s arguably the weakest one you can think of. That’s not good enough when talking about core rights.
Two brief points. First, allowing the courts a right of “easy intervention” on procedural matters may have unfortunate consequences. In particular, tribunals aware that their procedures will be subject to close judicial scrutiny will rationally adopt court-type procedures, even though more flexible processes might better allow them to achieve their statutory objectives.
Consider the op-ed this week by the Chair of Canada’s National Energy Board. In a remarkable passage, he wrote: “the quasi-judicial nature of the NEB’s hearing process is probably part of the problem when it comes to the NEB building better relationships with Canadians — as hearings are rule-bound, impersonal and often downright intimidating”. When the Chair of a vitally important administrative agency thinks his own procedures are inhibiting his agency’s policy-making role, there is a problem. Deference on procedural questions would indicate to such agencies that they should feel free to choose their own path.
Second, in choosing this path, the agency will be subject to judicial oversight. Karim goes too far in saying that reasonableness review is “the weakest” check on government. It is worth recalling Stratas J.A.’s formulation from Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59:
 Does reasonableness review undercut the ability of this Court in appropriate circumstances to enforce fundamental matters of procedural fairness? Definitely not. Reasonableness review does not take anything away from reviewing courts’ responsibility to enforce the minimum standards required by the rule of law. In other words, it is not unduly deferential. Indeed, in some cases, the nature or importance of the procedural fairness issue, the severe effect of the alleged procedural defect upon the aggrieved party, the similarity of the procedures under review to court procedures, or any combination of these may severely constrain or eliminate the range of acceptable and defensible options or margin of appreciation open to the administrative decision-maker on the facts and the law (see paragraphs 34-35, above). Two pre-Dunsmuir Supreme Court cases, often cited as examples of correctness review, may be examples of this: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII),  1 S.C.R. 539; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 (CanLII),  1 S.C.R. 249.
 Further, legislative standards and legal standards worked out in the jurisprudence can constrain the range of acceptable and defensible options or margin of appreciation open to the administrative decision-maker on the facts and the law…Given the well-defined legal standards set by the existing case law on procedural fairness, the range of acceptable and defensible options or margin of appreciation open to the administrative decision-maker often will be constrained. There will be cases, however, where the nature of the matter and the circumstances before the administrative decision-maker should prompt the reviewing court to give the decision-maker a wider margin of appreciation.
Deferential review is not a carte blanche. Far from it: where shortcomings can be demonstrated, the agency must explain them satisfactorily. I would like to think, although I am associated with deference, that my approach to reasonableness review strikes a balance between the need to respect administrative autonomy and the need to safeguard the integrity of the legal system. Reasonableness review should not, need not and does not threaten the rule of law or the protection of individual rights.
This content has been updated on December 18, 2014 at 13:44.