“General common law principle of procedural fairness lies as a duty on every public authority making an administrative decision NOT of a legislative nature AND which affects the rights, privileges or interests of an individual.” (Cardinal v. Kent) Re Webb: eviction from subsidized housing facility due to complaints against Webb’s children (teenage thieves) Challenge on basis that she wasn’t given notice, so not given procedural fairness that she was due You don’t have a right to subsidized housing However, it DOESN'T HAVE TO BE A RIGHT TO NEED PROTECTION, CAN BE AN INTEREST OR PRIVILEGE Threw out the old distinction between a vested right and unvested one Doesn’t matter if applying for something, or having it taken away Hutfield: doctor denied hospital privileges, never given reasons Argued that hospital privileges are essential, about professional license Also argued liberty interest under s. 7 of Charter General a right and interest to which procedural rights attach Court said not really 1. Are Cabinet and Ministerial Decisions Covered by the Legislative Exemption? Not subject to any legislative exemption per se, but it will often be easy to characterize Cabinet and ministerial decisions as legislative, and as a result they will be exempted from the duty In Inuit Tapirisat federal cabinet rejected appeal from a decision made by CRTC allowing a rate increase without allowing petitioning group to be heard Estey concluded the Cabinet’s power to be legislative in nature He did not want to burden the cabinet with hearing requirements
fundamental justice, intrusion on liberty and security has typically been less serious than that effected by IRPA To satisfy s 7, person must be given necessary information or substitute must be found Neither is the case here How can one meet a case one does not know? IRPA’s procedure for determining whether a certificate is reasonable does not conform to principles of fundamental justice under s 7 Section 1 analysis (Oakes test) requires Pressing and substantial objective Proportional means Rationally connected to objective Minimal impairment of rights Proportionality between effects of infringement and importance of objective SIRC (an independent review body to monitory (CSIS) established a formal adversarial process with a court like hearing room and procedures that mirrored judicial proceedings Independent panel of lawyers to act as counsel to SIRC Effective substitute for informed participation Can help bolster actual informed information by affected person Air India trial Crown and defense counsel came to agreement under which defense counsel obtained consents from their clients to conduct preliminary review of withheld material on written undertaking to not disclose material to anyone, including client UK’s special advocate model resembles Canadian SIRC model IRPA’s procedures for determining whether certificate is reasonable cannot be justified as minimal impairments of individual’s right to a judicial determination on facts and law, and right to know and meet case III. REVIEW OF ADMINISTRATIVE DECISIONS UNDER THE CHARTER Legislature can trump requirements of CL by amending legislation with clear and express language With no Charter issues, it can do so without resort to s 33 of Charter (override) Charter review alone appears to have the potential to place judges above legislators in determining which laws and decisions apply to us Stress on idea that law making and public administration belongs exclusively to the people’s elected representatives and delegates Analytical framework developed under the Charter to review legislation requires a 2 step inquiry Whether impugned provision infringes a Charter right Whether infringement can be saved under s 1 as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society Frameworks for review: Orthodox approach 2 step Charter framework Mixed approach Judges first review legality of a decision using principles of admin law Including inquiry into whether decision is ultra vires discretion or based on an unreasonable interpretation of a statutory provision If decision lawful under admin law, then tested under 2 step Charter framework Administrative law approach Limits scrutiny exclusively to what is available as a matter of admin law