Feb 9, 2015

Procedural Fairness in Canada: Continuing Debate over the Standard of Review

Air Canada v. Greenglass, 2014 FCA 288 (CanLII)

I am happy to admit that, although I believe it is time for Canadian courts to follow the suit of several appellate judges and adopt a deferential approach to questions of procedural fairness, the question is not yet settled.

Recently, though without mentioning the contrary jurisprudence in his own court, Nadon J.A. assumed a correctness standard in Air Canada v. Greenglass, 2014 FCA 288, at para. 26. This issue will ultimately have to be resolved by the Supreme Court, which will need to decide which of the contradictory (or at least, difficult to reconcile) passages in Mission Institution v. Khela, [2014] 1 SCR 502, prevails, the one that insists on correctness as the standard of review or the one that speaks of a “margin of deference” on procedural matters.

Recently, via Karim Renno, came news of a Quebec case applying correctness to a question of bias: Caya c. Renaud, 2015 QCCS 36. Kear-Jodoin J. applied correctness on the basis (at para. 11) that bias is a question of general law of central importance to the legal system — one of the Dunsmuir categories that calls for correctness review — and commented by way of explanation: “Judicial impartiality is pivotal to the integrity of our legal system” (at para. 13).

But this is actually bad news for those who think courts should reserve procedural questions to themselves. For it recognizes the principle, advocated by me in this article, that whether deference to administrative decisions is appropriate should be judged by reference to the Dunsmuir framework (or whatever general framework is applied to substantive review). For example, it concedes, in principle, that some questions of bias or procedure might not be questions of general law of central importance to the legal system but rather questions of discretion, policy or interpretation of a decision-maker’s home statute to which a deferential approach should be applied. For instance, the question whether overlapping functions which would ordinarily create an apprehension of bias are authorized by statute would naturally fall in the deferential home statute category.

The same concession is involved when Bich J.A.’s decision in Au dragon forgé is treated as a simple application of the Dunsmuir framework to an interpretation of the home statute (see e.g. Journal de Montréal c. Barrette, 2014 QCCS 5196, at para. 19). It is true that Au dragon forgé turned on statutory interpretation, but this misconceives the role of the Dunsmuir framework. The question at issue was whether the framework applies or not to procedural fairness decisions. Bich J.A. gave an affirmative answer: the correct way to assess procedural decisions is to apply the Dunsmuir framework — to look at issues “through the Dunsmuir lens” (ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2014 ABCA 397, at para. 66).

On this approach, procedural decisions will only be reviewed for correctness when they fall into one of the appropriate categories or the contextual factors indicate that the matter is one for the courts. But they will not be reviewed on a correctness standard simply because they are “procedural” in nature or touch the “fairness” of the decision-making process. Similarly, it is no argument against the position adopted by the Federal Court of Appeal in Forest Ethics or the one proposed by Stratas J.A. in Maritime Broadcasting that deference was given on questions of substance, because that assumes the answer to the threshold question of whether the Dunsmuir framework applies at all to “procedural” decisions.

I have taken care to point out that there is nothing to fear from deference on procedural questions, in part because reasonableness review is (relatively) robust, but also because correctness will continue to be appropriate in a subset of cases, including those involving bias and agency independence. Unless advocates of the traditional approach can explain in a principled way why judicial intervention should be encouraged on matters of “procedure” or “fairness”, more and more judges will adopt the Dunsmuir framework for all administrative decisions, procedural or not.