The Rules of Natural Justice The Duty of Fairness Session 2 Instructor: Glenn Tait The Duty to Be Fair There must be fairness in a Tribunal s decision-making process. The duty to be fair emerged in Canadian case law in a SCC case called Nicholson. Before this case, natural justice rules applied to decisions made by quasi-judicial tribunals but not to executive or administrative decisions. Nicholson applied the duty where no quasi-judicial function existed. In Cardinal v. Director of Kent Institution the SCC affirmed the general duty of procedural fairness lying on every public authority making an administrative decision which affects the rights privileges or interests of an individual. If a Decision is Not Fair There are other implications arising from a decision that a Tribunal s process has not been fair. It means the process failed in some way and that the Tribunal did not give proper consideration to the rights and interests of the parties appearing before the Tribunal. If the Tribunal is challenged successfully by way of judicial review on a fairness question, the most likely remedy to be imposed by the Court is certiorari or quashing of the decision. The effect is to wipe the decision out and force the Tribunal to begin its process all over again. 1
A breach of the rules of fairness is considered to be a legal error. The Tribunal must then start over guided by the Court s decision. The duty to be fair thus results in scrutiny of both the procedure used by a Tribunal and of the conduct of the decision-makers themselves. The Three Basic Elements of the Duty to be Fair The duty to be fair is based upon the principles that persons potentially affected by a Tribunal s decision should: (1) know the case against them; (2) have a reasonable opportunity to meet that case or the right to be heard ; and (3) have the opportunity to present their case before an impartial decision-maker. A Tribunal s procedures should make provision for all of these requirements. Element #1: Knowing the Case to be Met There are several steps to ensure that a potentially affected party knows the case he/she must meet and the Tribunal must see that those steps are followed. Notice: First, the Tribunal must ensure that the affected party receives adequate notice of the application to be considered by the Tribunal. Often, the application form (for a permit or licence) will ask the applicant what steps have been taken to contact potentially affected parties and to identify their concerns. The Tribunal (usually at the staff level) can direct that such interaction take place before the application is considered complete. 2
The Tribunal may have public engagement guidelines to ensure notice to and involvement of the affected public. Formal Notice of the Hearing: When the Tribunal is satisfied that the affected parties know the case they would have to meet, then formal notice of the hearing is given. Pre-hearing conference: the Tribunal may hold a prehearing conference in order to more clearly identify the issues of concern. These steps are particularly important in a context where First Nations must be consulted in relation to the application. Notice of other important procedural steps should also be given. A formal circulation list or list of parties is a good idea. The Tribunal should also provide parties and interveners an opportunity review the submissions of and question other parties and to review technical reports etc. How much notice and process is enough? This will depend on a number of factors including the complexity of the matter and the legal issues to be addressed. Element #2: Providing a Reasonable Opportunity to Meet the Case The ways a Tribunal may provide a person with a reasonable opportunity to meet the case, or, as it is frequently expressed, the right to be heard can vary depending upon many factors. These factors include: The nature of the subject of the application (e.g. is it more or less routine? Is the likely effect on the person minimal or significant? Is it a matter to be determined by policy where the Tribunal has a discretion, or does it have to meet regulatory hurdles? Depending upon the nature and effects of the application, the right to be heard may be satisfied with the filing of written submissions (a written hearing) or may require an oral or public hearing. 3
If the potential consequences to the affected party are significant, the Tribunal s process must reflect the principles of fairness. The choice of procedure (written vs. oral hearing) must be appropriate to the interests affected. Once the affected party knows the case to be met, then he/she must be given the opportunity to: make written submissions, present oral evidence, question witnesses, and present argument. In short, he/she must be given a reasonable opportunity to participate in the hearing process. Interpretation and the Right to be Heard The common law right to a fair hearing includes the right to be understood and to understand what is going on. At the very least, this right includes the opportunity to follow or understand the hearing and communicate at it. This includes the right to an interpreter. The right to interpretation is an element of natural justice and fairness related to the right to an adequate hearing. Interpreters are often provided at hearings by Northern Tribunals. They are more than a courtesy. They are a necessary component of the right to be heard. Official Languages The federal Official Languages Act states that a person has a right to use either of Canada s official languages (English and French) in any federal court. The federal court definition includes a Tribunal that carries out adjudicative functions and which is established by or pursuant to a federal Act. This Act applies to Tribunals in the North established under federal statutes including the MVMRA and the NWT Waters Act. It may also apply to Tribunals created under land claims agreements which have been brought into effect by federal legislation. 4
Element # 3: The Impartial Decision- Maker Once the affected party has been made aware of the case he/she must meet, and has been given a reasonable opportunity to be heard, the third crucial element of the duty to be fair is that the decisionmaker is impartial. The parties have a right to an impartial decisionmaker. That is, the decision-maker must not be biased in any way. Bias and Apprehension of Bias The test for bias is first whether there is actual bias. The test for apprehension of bias is whether a reasonable and properly informed person would form a reasonable apprehension of bias. (This is discussed in more detail in Session 3.) Impartiality He/She who hears must decide The Tribunal members who hear the case must decide it. The general principles are: a) The members who make a Tribunal s decision must be those members of the Tribunal who actually heard all the evidence and the arguments of the parties. b) A decision-maker must be present for the entire time the parties put forward evidence and arguments. 5
c) A Tribunal may have advisors, including staff, who assist with the decision-making process but those advisors may not act in a way that exceeds their advisory capacity. Tribunal members are to be individually independent but the hearing panel s decision-making is collective. Again, the general principles are: a) The Tribunal members who hear the case must be free to decide it, i.e. free from any undue influence. b) The decision-maker may consult colleagues or Staff BUT 1) the consultations must be voluntary, 2) there must be no discussion of adjudicative facts, and 3) the parties should normally be allowed to make submissions concerning any new lines of argument that become relevant as a result of the consultations. (See also Session 7) Quorum and Tribunal Decisions The issue of a Tribunal s compliance with quorum requirements is also related to the rule that he who hears must decide. Quorum is the minimum number of a collective who must be present for the exercise of authority which has been given to the collective as a body. Quorum requirements must be strictly adhered to by a Tribunal or no business can be conducted. 6
Quorum Requirements The particular quorum requirements in an Act must be satisfied for a Tribunal to make a valid decision. Quorum requirements may also apply to the conduct of general Tribunal business. With certain representative and Co-management Tribunals, quorum may also require that members nominated by certain groups must make up quorum for a decision to be made. The Tribunal s actions can only be done with certain members, or with a minimum of members, who are appointed on the nomination of a particular group or groups. Quorum and Case Law The case law in Canada has also held that following quorum requirements is essential for Tribunals to make valid decisions. The issue was discussed at length by the Federal Court of Appeal in IBM Canada v. Deputy Minister of Nation Revenue. [(1991) 129 N.R. 369, [1992] 1 F.C. 663. ] In the IBM case the Court found that, although there was no direct authority on the quorum issue, that the courts have consistently insisted on the necessity for a decision-making authority to strictly comply with quorum requirements at all times. (para 9) Conclusion A Tribunal must be fair when making a decision and it must follow the three elements of the duty to be fair. If a decision is not fair, there may be legal consequences, including the finding that the Tribunal s decision is invalid. Quorum requirements are an important aspect of the duty of fairness and should be followed by the Tribunal. These include specific quorum requirements of comanagement Tribunals. We will next discuss Scenario #1 - Fairness and Adequate Notice 7