The Duty of Fairness: From Nicholson to Baker and Beyond
ADMINISTRATIVE LAW IN CONTEXT, C. Flood, L. Sossin, eds., pp. 169-195, Toronto: Emond Montgomery, 2008
24 Pages Posted: 12 Jul 2008
The author traces the development of the duty of fairness in Canada beginning with Nicholson v Haldimand-Norfolk (Regional) Police Commissioners in 1979, in which the Supreme Court of Canada abandoned the dichotomy between judicial and administrative decisions, holding that a general duty of fairness applies whenever a decision is made that affects the rights, interests, or privileges of an individual.
The threshold tests for determining when fairness is required are analyzed. Particular attention is paid to the concept of legitimate expectation, which may expand the availability of the fairness duty as a result of the conduct of public officials. Various limitations on the duty of fairness are considered, the most controversial of which is the non-application of the duty to "legislative" decisions.
The duty of fairness has remained confined to procedural protection in Canada, and the content of the duty is context dependent. It may be satisfied by minimal, informal procedures in some cases - perhaps notice and a chance to reply - while in other cases nothing less than a formal, oral hearing will do. The criteria established by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) for determining the degree of fairness required in particular circumstances are discussed at length.
Keywords: Duty of fairness, natural justice, judicial review, legitimate expectations
JEL Classification: K-10, K-23
Suggested Citation: Suggested Citation