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| Sara Blake |
The most-cited case is Khosa, in which the Supreme Court of Canada mentioned in passing that correctness is the standard of review to be applied on judicial review of whether the decision-making process was fair to the applicant (Canada (Citizenship and Immigration) v. Khosa [2009] 1 S.C.R. 339 at para. 43). This point was obiter — Sukhvir Singh Khosa did not raise any question of procedural fairness. The issue for the court was the reasonableness of the decision rejecting his application to remain in Canada on humanitarian and compassionate grounds. The court provided no explanation, citing Dunsmuir for authority.
I’ve searched the Dunsmuir decision but cannot find any discussion of the standard of review for questions of procedural fairness, except the quote below from Baker, which does not support the Khosa ruling ((Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190, at para. 79); Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817). The issue for the court in Dunsmuir was whether a government employee had any right to procedural fairness prior to dismissal from employment. The court ruled that he did not because his employment relationship was a matter of contract that did not attract public law principles. So, the court did not address whether the process followed was fair, nor the standard of review of that question.
The issue is not addressed by the court in Vavilov, which was concerned with a question of statutory interpretation (Canada (Minister of Citizenship and Immigration) v. Vavilov [2019] S.C.J. No. 65). Alexander Vavilov did not appeal the ruling of the Federal Court of Appeal dismissing his procedural fairness arguments.
In Baker, the Supreme Court said “‘the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.’ All of the circumstances must be considered in order to determine the content of the duty of procedural fairness.” (para. 21) The court set out five factors to be considered requiring a review of the statutory and factual context. The fifth factor requires that the court “also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances” (para. 27).
In Via Rail, the Supreme Court said “Considerable deference is owed to procedural rulings made by a tribunal with the authority to control its own process. The determination of the scope and content of a duty to act fairly is circumstance-specific, and may well depend on factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the Agency’s constituencies.” (Council of Canadians with Disabilities v. VIA Rail Canada Inc. [2007] 1 S.C.R. 650, para. 231.)
A judicial analysis that respects the tribunal’s choices is deferential. Correctness cannot be the standard of review of an exercise of discretion.
Most allegations of procedural unfairness turn on the tribunal’s findings of fact as to the process followed, the reasons why certain procedural steps were taken or not, and contextual factors such as the purposes and complexity of the proceeding and of the regulatory mandate. On judicial review, the reasonableness standard of review applies to findings of fact. They may be disturbed only if a material finding is unsupported by any evidence or fundamentally misapprehends the evidence (Vavilov at para. 125-126).
In Abrametz, the Supreme Court acknowledges deference to the tribunal’s reasons on the question of procedural fairness. But this was an appeal, not a judicial review. The appellate standard of palpable and overriding error was applied to the tribunal’s findings of fact and reasons for dismissing the allegations respecting procedural fairness. And the court ruled that the issue of procedural fairness must be raised first before the tribunal to provide the court with the benefit of the tribunal’s findings and reasons. (Law Society of Saskatchewan v. Abrametz [2022] S.C.J. No. 29 para. 105-116, 124)
The Vavilov reasonableness standard of review should be applied to questions of procedural unfairness raised on judicial review.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
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