Procedural Fairness

… a core concept in Ethics, Rights, and Accountability and Atlas111M

ProceduralFairnessConcept description

Procedural fairness is a concept in Administrative Law that governs the way in which administrative decision-makers of the state (such as statutorily-appointed commissions, boards, officers with delegated authority, etc.) must exercise their statutorily-authorized discretionary powers.

Procedural fairness is primarily concerned with the way in which a decision is made (viz. the process), while its companion concept of “substantive fairness” is concerned with the reasonability or the correctness of the decision itself.

In Canadian law, procedural fairness stems from the two principles of natural justice – the right to be heard, and the right to impartial judgment. Procedural fairness requires different protections depending on the circumstances of the decision being made. For example, procedural fairness may require certain opportunities for an individual to make submissions (either written or oral) in support of their case, or it may require reasons (oral or written) of varying depth, explaining the rationale(s) of a given decision. Sometimes, procedural fairness may require a hearing to ensure all sides have an opportunity to know and meet the case in issue, and it may also require particular procedures for that hearing (e.g., the ability to cross-examine parties live).

Procedural fairness also requires that a decision be made independently, impartially, and free of bias (both actual bias and a reasonable apprehension of bias on the part of a third-party observer).

The Canadian jurisprudence has recognized that the need for procedural fairness often must be balanced against the concern that too strict a set of guidelines may come at the expense of decision-making efficiency. As a result, Canadian courts have established a test for determining the content of the procedural fairness required in a given circumstance. Generally speaking, the degree of procedural fairness expected in a given situation can depend on the importance of the decision to the individual, legitimate expectations of the individual as to the decision-making process to be followed, the nature of the decision-making process and its similarity to judicial proceedings, the role of the decision in the overall statutory scheme, and the decision-maker’s own choice of procedure. These are known as the “Baker” factors.

Decisions that are made without the requisite procedural fairness protections will often be subject to review by courts.

Cowan and Kuttner (reference below) note that:

“Administrative agencies must follow proper procedure in arriving at their decisions. The various procedures stem from the basic requirement of the “right to be heard.” In some cases a statute or regulation will set out the basic procedures that govern the process of decision making, such as what notice must be given of a hearing and to whom, the right to have counsel, the right to call evidence and to cross-examine witnesses. Where a statute establishes no procedures, common-law principles apply to ensure that all persons subjected to government action are treated fairly. These are the previously mentioned principles of “natural justice.” They have 2 basic objectives: to ensure that every person whose interests are at risk is entitled to participate in the process before a decision is taken affecting their interests, whether by hearing or otherwise, and that any decision made by tribunal is impartial and not biased.

“What constitutes procedural fairness will depend upon the nature of the power being exercised, the party affected, the consequences of the intended action and the practicalities of requiring time-consuming procedures. In serious cases affecting individuals, such as revoking a doctor’s licence to practise medicine, procedures similar to those found in a court of law will be imposed. In other cases, such as the decision to terminate a lease in a public-subsidized apartment building, the courts have held that there is only a “duty to act fairly,” which is satisfied if the tenant is informed of the complaints made against him or her and is provided with an opportunity to answer or to remedy them. In a few cases, such as a Cabinet decision on a petition from a tribunal that awarded a rate increase to a large private utility, the courts have held there is no duty of fairness to be followed because the decision maker, the Cabinet, was performing a legislative function of a political nature.”

Please note that this definition is intended to provide a general conceptual understanding of “procedural fairness” as it pertains to the public service, and does not constitute legal advice.

See also Natural Justice.

Source

Drawn in part from Paul Daly, Administrative Law Values IV: Procedural Fairness http://www.administrativelawmatters.com/blog/2014/07/19/administrative-law-values-iv-procedural-fairness/, accessed 25 January 2016.

J.G. Cowan and Thomas Kuttner (2013), Administrative Law, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/administrative-law/, accessed 7 November 2016.

Atlas topic, subject, and course

Paternalism and the Welfare State (core topic) in Ethics, Rights, and Accountability and Atlas111M Ethics.

Page created by: Dave Marshall, last modified by Ian Clark on 14 February 2017.

Image: From Procedural Fairness for Judges and Courts at http://www.proceduralfairness.org/Court-Implementation.aspx/, accessed 26 January 2016.