What’s in a Name? Procedural Fairness in Government Contracting: Canadian Arab Federation v. Canada (Citizenship and Immigration), 2015 FCA 168

I posted about the first-instance decision in Canadian Arab Federation v. Canada (Citizenship and Immigration), 2015 FCA 168 a while ago. Here, the Minister refused to enter into a new agreement with the Federation because of what he perceived as anti-semitic comments by one of its representatives. My particular interest is in the procedural fairness point: the Federation alleged that it had not been given notice and an opportunity to respond.

As at first-instance, no relief was forthcoming, though on narrower grounds. Dawson J.A. rejected — indeed, counsel for the minister did not even seek to defend! — the view taken by Zinn J. that the matter was entirely contractual. On this, I think she was correct. However, the three reasons she gave for holding that the Minister owed no duty of procedural fairness do not stand up to sustained scrutiny. I will address the first two together and the third separately.

First, counsel was “unable to point to any authority that has found a reputational interest to be sufficient to trigger duties of procedural fairness” (at para. 12). Secondly, “when courts have found a common law duty of procedural fairness to apply, the rights, privileges or interests that were implicated were qualitatively more substantial than the reputational interest here asserted” (at para. 13, citing to Brown and Evans, pp. 7-53 to 7-55).

These formulations struck me as odd, enough to pull Brown and Evans off the shelf. Here is what the authors say at p. 7-55 (footnotes omitted):

[E]xercises of administrative power that tend to cast a slur on a person’s reputation may attract the duty of fairness. For example, it has been held that a person’s name could not be entered on a register of possible child abusers, even though circulation of the register was supposedly restricted, without first informing the individual or the nature of the allegation and providing an opportunity to respond. Furthermore, the duty may attach to actions that reflect adversely on a person’s fitness as a parent. And the duty of fairness will almost always apply to decisions that are likely to reflect unfavourably on the honesty, competence or integrity of individuals in the conduct of their professions, employment, trades or businesses.

And Craig Forcese pointed me to para. 55 of Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440: “procedural fairness is essential for the findings of commissions may damage the reputation of a witness.  For most, a good reputation is  their most highly prized attribute”.

Dawson J.A.’s response to the commission of inquiry example is that “the source of this obligation is statutory” (at para. 12). But the Supreme Court decision is open to a different interpretation, because para. 55 is cast in broad terms, not limited to statutory inquiries. Indeed, at para. 56, it is said that the “same principle of fairness must be extended to the notices pertaining to misconduct required by s. 13  of the Inquiries Act“. This indicates that procedural fairness attaches to decisions inflicting reputational damage — surely including accusations of anti-semitism — as a matter of common law.

Thirdly, “if the Federation were afforded procedural rights in this context, every failed applicant for a contribution agreement would be entitled at least to notification that their proposal was not going to be accepted and an opportunity to address the Minister’s concerns. This would significantly constrain the Minister’s ability to make broad, policy-based decisions on an expeditious basis…” (at para. 14). But this overlooks the important point that the Federation was in an existing relationship with the government department. It is in a much smaller category of potential applicants. As I have pleaded previouslyalbeit in vain and with apologies to Holmes — even non-governmental organizations know the difference between being kicked (cut off from funding) and being tripped over (not given funding in the first place).

No doubt the appropriate procedural protections here are minimal (as they tend to be in the commercial sphere) and Dawson J.A.’s analysis of the constitutionality and reasonableness of the Minister’s decision is persuasive (see paras. 15-44). A more satisfactory conclusion might have been one of the first-instance judge’s alternative bases for his decision: that whatever procedural fairness the Federation was owed, it received. Perhaps the Federation will seek leave to the Supreme Court of Canada, which would doubtless welcome the opportunity to consider the application of procedural fairness protections in the area of government contracting.

This content has been updated on August 19, 2015 at 08:38.