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COMMENTAIRES
Can Fairness be Effective?
Julius H. Grey*
I. The Limits of Fairness
Procedural fairness undoubtedly constitutes
the most important
achievement of administrative law since the seminal decision of Ridge v.
Baldwin.’ The concept of fairness has been used to extend some protection
to individuals affected by decisions of a public nature in matters previously
deemed “administrative” and therefore presumably unreviewable. 2 To put it
in more accessible terms, the courts have acceded to Lord Denning’s view
that practically nothing is totally outside the sphere of courts 3 and now hold
that even in those matters where it is desirable for officials to have wide
powers and considerable immunity from judicial review, it is not correct to
categorize that immunity as total. Certain minimum standards must be met.
These minimum standards do not mean that courts serve as an
automatic appeal from administrators. It has often been stressed by courts
that judicial review means review of the legality of a decision and not of the
merits.4 It follows that in many cases courts will not review decisions with
which they disagree, because they cannot substitute their opinions for those
of the officials.
* Of the Faculty of Law, McGill University.
I Ridge v. Baldwin [1964] A.C. 60 (H.L.). The leading Canadian cases are Nicholson v.
Haldimand-Norfolk Regional Board of Commissioners of Police [1979] 1 S.C.R. 311 and
Martineau v. Matsqui Institution Disciplinary Board (No. 2)[1980] 1 S.C.R. 602. See also
Mullan, Fairness: The New Natural Justice? (1975) 25 U.T.L.J. 281.
2 See Grey, Discretion in Administrative Law (1979) 17 Osgoode Hall L.J. 107
[hereinafter Discretion] and Grey, The Duty to Act Fairly After Nicholson (1980)25 McGill
L.J. 598 [hereinafter After Nicholson]. See also Macdonald, Judicial Review and
Procedural Fairness in Administrative Law (1980) 25 McGill L.J. 520 and (1980) 26 McGill
L.J. 1.
3 See, e.g., A.-G. v. Chaudry [1971] 1 W.L.R. 1624 (C.A.)per Lord Denning M.R.: “The
High Court has jurisdiction to ensure obediance to the law whenever it is just and convenient
to do so” and see, infra, note 79. See also Roncarelli v. Duplessis[1959] S.C.R. 121,140-2
per Rand J.
4 For an account of the distinction between appeal and review, see R. Dussault, Traitd de
droit administratifcanadien et qudbdcois (1974), 1055. See also Bhadauria v. M.M.I. [1978]
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COMMENTAIRES
Nor is it totally inconceivable for certain types of decisions to be entirely
unreviewable on grounds of fairness. In M.N.R. v. Coopers and Lybrand,5
Mr Justice Dickson suggested in his description of the “continuum” of
decisions that some may be totally unreviewable. Even more significant is
the Supreme Court decision of A.-G. Canada v. Inuit Tapirisat of Canada6
in which a decision to determine Bell Canada tariffs was held not to be
subject to “fairness”. The decision was essentially an interpretation of a
statute which provided for cabinet appeals; it touched on the nebulous but
crucial question of the division of powers and of the review of political
questions. This case- although it never fully developed the discussion of
these questions -is
thus analogous to Gouriet v. Union of Post Office
Workers7 and Laker Airways v. Department of Trade.8
Gouriet9 showed that certain political questions could not be tried on the
merits before the courts. The jurisdiction of courts can be quite elastic in our
constitutional system, but the elasticity is not infinite. Laker indicates that
all of this does not mean that such decisions are unreviewable. 10 The dicta in
Roncarelli v. Duplessis” and observations in Wade’s Administrative Law’2
stating that nothing is ever totally unreviewable still stand. However, the
review would normally concern the statutory limits of the power 13 and not
involve considerations of fairness. Inuit Tapirisat14 clearly states that review
would be possible on the issue of “geographic” jurisdiction even where
fairness had no place.
The controversial issue of the review of Royal prerogative powers could
also be affected by this analysis. Lord Denning thought they were reviewable
in the same way as other powers.15 The judgments in other cases have been
less liberal.’ 6 Since prerogative powers are not normally created by statute,
review could not in these types of cases consist purely of statutory
I F.C. 229 (T.D.) and the comments on this case in Grey, Discretion, supra, note 2, 112.
5[1979] 1 S.C.R. 495, 505.
6 [1980] 2 S.C.R. 735, 755 per Estey J.: “While it is true that a duty to observe procedural
fairness, as expressed in the maxim audi alteram partem, need not be express…, it will not be
implied in every case. It is always a question of construing the statutory scheme as a whole”.
7[1977] 2 W.L.R. 310 (C.A.), rev’d [1978] A.C. 435 (H.L.).
8 [1977] 2 W.L.R. 234 (C.A.). An analogous Canadian case is Roman Corp. v. Hudson’s
Bay Oil and Gas Co. [1973] S.C.R. 820.
9 Supra, note 7.
10 Supra, note 8, 250 per Lord Denning M.R.
I Supra, note 3, 142 per Rand J.
12 H. Wade, Administrative Law, 4th ed. (1977), 340 et seq.
13 .e., did the officials exceed jurisdiction in the “geographic” sense and did they follow the
rules set out in the statute?
14 Supra, note 6, 756-9 per Estey J.
15 Laker, supra, note 8, 250 per Lord Denning M.R.
16 See, e.g., Re Multi-Malls Inc. v. MT.C. (1976) 14 O.R. (2d) 49, 58 (C.A.) per
Lacourci~re J.A. See also Giey, Discretion, supra, note 2, 123-4.
McGILL LAW JOURNAL
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construction. But it is arguable that review is limited to verifying whether the
limits of the prerogative power were observed. There is, of course, no doubt
that such verification is possible.’ 7 Could it also be the sole recourse? This
solution, while not unreasonable, would seem to offer officials too easy a
shelter from most judicial review. It is likely that in a deserving case, Lord
Denning’s view that Crown prerogative is not absolutely unreviewable – as
seen in Laker 8 -would prevail. However, Crown prerogative is difficult to
review and this is another illustration of the fact that fairness is not a
plaintiffs panacea designed to turn the courts into supervisors of the entire
administrative process.
Another potential weakness of fairness is its potential susceptibility to
privative clauses. Privative clauses- defined as statutory ways of avoiding
judicial review -have had mixed fortunes before our courts. They do not
operate where there is a jurisdictional error, 19 but they have sometimes
received surprisingly wide application. In certain cases, courts have shown a
tendency to apply statutes literally in this respect. Perhaps the clearest case
was Woodward Estate v. Minister of Finance.20 Even more far-reaching was
the case of Pringle v. Fraser2′ where a “jurisdictional” privative clause was
held to be effective.
Privative clauses were also given considerable importance in C. U. P. E.
Local 963 v. New Brunswick Liquor Employees.22 It is likely that if a move
away from judicial review ever developed in Canada, it would centre on
privative clauses. Does the obligation to act fairly yield to privative clauses?
It is not easy to answer this question categorically in the present state of the
law.
Given the “continuum” of fairness and natural justice,23 it seems certain
17 A.-G. v. De Keyser’s Royal Hotel [1920] A.C. 508, 537-8 (H.L.) per Lord Atkinson.
I8 Supra, note 8,249-51. There is a difficulty in that manyabuses of power may technically
be justified by the words of a statute although the statute is in fact used for the wrong
purpose. See, e.g., Re Multi-Malls, supra, note 16, 62-3 per Lacourci6re J.A., and
Congreve v. Home Office [1976] Q.B. 629,652 (C.A.)per Lord Denning M.R., concerning
the improper exercise of a Minister’s discretionary power to propose to revoke a licence
validly obtained as a means of levying money it had no right to demand.
Since Crown prerogative is not of statutory origin and has no specific purpose, this type of
review is not usually possible. For a judicial discussion of the origin of Crown prerogative,
see Burmah Oil Co. v. Lord Advocate [1965] A.C. 75, 99-112 per Lord Reid.
19 See, e.g., Lalonde Automobiles Ltie v. Naylor [1974] R.P. 372 (Qu6. C.A.); A.-G.
Qudbec v. Labrique (1980) 38 N.R. 1, 18 (S.C.C.) per Beetz J.
20[1973] S.C.R. 120, 128-30 per Martland J.
21 [1972] S.C.R. 821, 826-7 per Laskin J. (as he then was).
22(1979) 26 N.R. 341, 349-50 (S.C.C.). Mr Justice Dickson justified the existence of
privative clauses protecting the decisions of labour boards on the grounds that such boards
develop “[c]onsidemble sensitivity and unique expertise” in relation to their specialized
subject matter.
2 Coopers and Lybrand, supra, note 5, 505.
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that failure to act fairly does affect jurisdiction. It is equally certain,
following Harelkin v. University of Regina,24 that “unfair” decisions are only
It also seems evident from the
voidable and not absolutely void.
jurisprudence that some decisions can be exempted from fairness. 25 One
would conclude that, with careful drafting, legislatures could immunize
many of their functions from review for fairness, or at least greatly diminish
the scope of such review. 26
It is possible to interpret Inuit Tapirisat27 as a case where drafting
excluded fairness. Another ominous decision in this area is Hasma v.
Canadian Wheat Board,28 which effectivly says that fairness cannot be used
to overturn the plain words of a statute. In short, courts cannot refuse to
apply a statute because it is “unfair”. However, this type of case is only a
short distance from one in which fairness is excluded by a privative clause.
Of course, privative clauses, even where effective, are usually given the
minimum effect reasonably arguable in the circumstances. 29 It is also
politically difficult for governments to permit actions which are unfair in
explicit terms. Nevertheless, given the ardent desire of governments to avoid
judicial review and the sophistication of its draftsmen, it is difficult not to
discard the fear that statutory drafting could seriously dilute fairness.
The narrowness of fairness is apparent in the case which was its greatest
triumph – Martineau (No. 2).30 Both Mr Justice Dickson and Mr Justice
Pigeon emphasized that although it was possible to obtain review of an
administrative decision it was not easy and would take a strong case indeed. 3′
Both the constitutional limits and the practical limits32 made it unlikely
that fairness could turn out to be a danger to the integrity of the
administrative process. The fears that fairness initially inspired33 seem
wholly unjustified. In fact, fairness is such a vulnerable concept that great
24 [1979] 2 S.C.R. 561, 585 per Beetz J.
25 This is stated explicitly in Coopers and Lybrand, supra, note 5, 505 per Dickson J. See
also Inuit Tapirisat, supra, note 6 and the quotation per Estey J.
26 It is submitted that no matter what drafting technique was employed, truly scandalous
cases would not be tolerated by the courts.
600-2.
27 Supra, note 6.
28 (1981) 122 D.L.R. (3d) 706, 713 (Alta Q.B.) per MacDonald J.
29 See, e.g., Re Pioneer Grain Co. and Kraus (1981) 123 D.L.R. (3d) 48 (F.C.A.);
Teamsters Union Local 938 v. Masicotte (1980) 34 N.R. 611 (F.C.A.); Yellow Cab Ltd v.
Board of Industrial Relations [1980] 2 S.C.R. 761.
30 Supra, note I.
31 At least in a prison matter, ibid., 630 per Dickson J. and 637 per Pigeon J.
32 For further discussion of the limits of fairness, see Grey, After Nicholson, supra, note 2,
33 See, e.g., Kurek v. Solicitor General (F.C.T.D.) No. T-1324-75, 10 September 1975, in
which Addy J. held that an administrative decision of a Minister involved the exercise of a
right similar in kind to a prerogative right of the Crown and was therefore unreviewable.
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[Vol. 27
care must be taken for it not to be lost. A number of ways could be found by
officials of forestalling review of high-handed decisions. One way would be
to say as little as possible and give as few reasons as possible. Another
way would be to observe all the procedural rules scrupulously and then hide
behind the fact that fairness is supposed to be procedural only.3 4 The
combination of these two methods of evasion could be highly effective.
II. Silence as a Way of Evading Fairness
It is not the intention of the writer to provide a complete analysis of the
obligation to provide reasons for decisions in administrative law. In the first
place, this was done very recently;35 in the second, it is not directly connected
with fairness. 36 Nevertheless, it is not possible to ignore this question
altogether in discussing fairness, because it is obvious that portentous silence
could easily result in review for unfair conduct.
In Nicholson,37 Laskin C.J.C. noted that one of the basic requirements
of fairness was to inform the person affected by a decision of the reasons for
it. This probably meant reasons for contemplating a particular step in order
to give the other side an opportunity to argue against it, but it could also
mean giving a rudimentary explanation after the fact. Traditional
administrative law did not require reasons unless there was a statutory
provision, 38 but the traditional law is changing quickly and, if fairness is to
be a meaningful concept, a way of policing it must be found. It is reasonable
to suppose that the duty to give reasons and the sophistication of the
reasons must depend on the decision taken.39 The total absence of a duty to
motivate would make it possible to review only the decisions of the more
naive, unskilful or honest officials who provided reasons or made such
glaring errors that the reasons ceased to matter.
Before a general notion of fairness had developed- when only “quasi-
judicial” decisions were generally considered reviewable 40 – motivation was
623-30 per Dickson J., and in Mullan, supra, note 1, 288.
3 4Fairness is certainly treated as a procedural concept in Martineau (No. 2), supra, note 1,
35 _vesque-Crevier, La motivation en droit administratif (1980) 40 R. du B. 535.
36 The purpose of requiring that a decision be motivated is often simply to maintain the
“appearance of justice”. See, e.g., Alvarez v. M.M.L [1979] 1 F.C. 149 (C.A.).
37Supra, note 1, 328.
38 See Wade, supra, note 12, 211 and 772; Monsanto Co. v. Commissioner of Patents
[1979] 2 S.C.R. 1108, 1118-21 per PigeonJ.; Northwestern Utilities Ltdv. City of Edmonton
[1979] 1 S.C.R. 684, 704-7 per Estey J.
39 Le., in the same way that the degree of fairness required depends on the nature of the
particular issue. See the “continuum” idea in Coopers and Lybrand, supra, note 5, 505.
40 In the more distant past certain English decisions came close to expressing modern
notions of fairness, e.g., Cooper v. Board of Works for the Wandsworth District (1863) 14
C.B. (N.S.) 180, 143 E.R. 414 (C.P.); Local Government Boardv. Arlidge[1915] A.C. 120
(H.L.). Therefore, one should perhaps speak of the “rebirth” rather than the “birth” of
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COMMENTAIRES
less crucial, since in court-like situations there was usually a transcript, some
form of explanation was in any case provided and there was considerable
procedural refinement. When one subjects administrative and peremptory
decisions to review, it is essential to order that a certain minimum of
information be provided, or no real review will be possible. This minimum is
necessarily fluid and variable. Nevertheless, in this area the courts will have
to guard against tautological reasons or explanations which merely repeat
the words of the statute creating the official’s particular power. 4′ The details
remain to be worked out, but it is amply clear that the duty to act fairly is
incompatible with a general right to refuse to justify administrative
decisions.
III. Scrupulous Observance of Procedure as a Way of Evading Fairness
If the external forms of procedure were scrupulously observed, it would
still be possible for grossly unfair decisions to be made. The fact that one side
is given the chance to speak does not mean that the other side is listening. It is
certain that someone who is biased or determined to take a particular course
of action will often bend over backwards to appear even-handed or indeed
well-disposed. It would be sad if the sole effect of the growth of fairness was a
proliferation of manuals written to help officials clothe their decisions in the
garb of fairness. This would not only be undesirable, but also contrary to the
principles of law, since every remedy is supposed to be potentially effective 42
and review for fairness would thus be rendered toothless.
It follows that in order to prevent fairness from becoming a sham there
must be some provision for review of questions of substance and not only
procedure. Procedural fairness is based on the proposition that there are
limits in procedure beyond which officials will not be permitted to go, even
where their functions are “administrative” in nature. Is there an equivalent in
matters of substance?
It is submitted that the equivalent is found in the rules for review of
fairness after Ridge v. Baldwin, supra, note 1, in 1963. It is also necessary to remember that
the “unreviewability” of administrative decisions may have meant simply the unavailability
of the remedy of certiorari.
41 In cases where reasons are explicity required by statute the Supreme Court of Canada
has taken note of this problem: Monsanto, supra, note 38, 1118 et seq.; Northwestern
Utilities, supra, note 38, 704 et seq. It is submitted that in questions of fairness the same
principle should apply.
42 M.N.R. v. Wrights’ Canadian Ropes Ltd[1947] A.C. 109, 122 (P.C.)per Lord Greene
M.R.: “This right of appeal must, in their Lordships’ opinion, have been intended by the
legislature to be an effective right.”
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discretion. 43 These rules require that even discretionary decisions 44 be made
in good faith, without the influence of error of law or irrelevant facts, and not
arbitrarily or unjustly.45 The broad notion of good faith is particularly
interesting because it includes not only malice or dishonesty, but also acting
for purposes not included by the legislator or for reasons which, however
laudable, are not part of the official’s function. 46 It is also important because
of strong authority which holds that at all times and in all circumstances
bad faith may be invoked against a public decision.47
No less important is the concept of reasonableness. 48 Unreasonableness
is not an easy thing to prove,49 but once proven it invalidates any decision.
Variants on this would include decisions made arbitrarily or capriciously.50
All such decisions would be invalidated.51 There exists a line of English cases
of particular importance here, because the issue of reasonableness is
discussed with relation to certiorari and its availability where “rights” are not
necessarily determined and no “superadded duty” can be found. The most
43 See, in general, Grey, Discretion, supra, note 2, and, in particular, Grey, After
Nicholson, supra, note 2, 602, where the theme of this article is outlined in capsule form. See
also the celebrated case of Anisminic Ltd v. Foreign Compensation Commission [1969] 2
A.C. 147, 208 (H.L.) per Lord Wilberforce where much of this argument is foreshadowed.
44 /.e., decisions where there is no right or wrong solution and the official may to a large
extent do as he pleases.
45 See Boulis v. M.M.I. [1974] S.C.R. 875,877 per Abbott, J. quoting from the judgment
of Lord Macmillan in Fraser and Co. v. M.N.R. [1949] A.C. 24, 36 (P.C.) and 885 per
Laskin J. (as he then was).
46 See Roncarelli, supra, note 3, 143 per Rand J.; Congreve, supra, note 18, 651 per Lord
Denning M.R.; Wade, supra, note 11, 372. See also Toronto v. Forest Hill [1957] S.C.R.
569, 572 per Rand J. While this case dealt with the interpretation of subordinate legislation,
the principles behind the control of this type of discretion are not substantially different.
47 Landreville v. Boucherville [1978] 2 S.C.R. 801, 813-4 per Beetz J. It is interesting to
consider whether the S.C.C. decision in Inuit Tapirisat, supra, note 6, would have been
different if bad faith had been proved.
48 Secretary of State for Education and Science v. Tameside Metro Borough Council
[1977] A.C. 1014, 1024-7 (C.A.) per Lord Denning M.R., affd[1977] A.C. 1036, 1064 (H.L.)
per Lord Diplock: “[I]n public law “unreasonable” as descriptive of the way in which a
public authority has purported to exercise a discretion vested in it by statute has become a
term of legal art. To fall within this expression it must be conduct which no sensible
authority acting with due appreciation of its responsibilities would have decided to adopt.”
See also Roberts v. Mapivood [1925] A.C. 578, 586-90 (H.L.) per Lord Buckmaster.
II, c. 10, s. 28(3).
49 See Tameside, ibid., 1064 per Lord Diplock.
50 See Boulis, supra, note 45,877per Abbott J. See Federal Court Act, R.S.C. 1970, Supp.
5t Remedies might differ depending on the nature of the decision, but following Vachonv.
A.-G. Quibec[1979] I S.C.R. 555,561-3 per PigeonJ. with respect to evocationand Solosky
v. Government of Canada (1979) 30 N.R. 380, 388-90 per Dickson J. with respect to
declaration, it should no longer be difficult to get a remedy in the case of an unreasonable or
arbitrary decision by a public body.
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explicit decision is that of R. v. Hillingdon London Borough Council, Ex
parte Royco Homes. 52
These cases conclude unequivocally that unreasonableness is sufficient
ground for judicial review and Hillingdon53 recognizes the possible use of
certiorari in this area of law. When we consider that the very same debate
took place with respect to fairness, 54 the relationship between the two
concepts becomes all the more clear.
The most striking case on this subject is probably a recent Australian
decision, Minister of Immigration and Ethnic Affairs v. Pochi.55 It suffices
to quote a passage from the judgment of Deane J. to see its relevance:
It would be both surprising and illogical if, in proceedings before a statutory tribunal
involving an issue of the gravity of deportation of an established resident, the rules of
natural justice were restricted to the procedural steps leading up to the making of a
decision and were completely silent as to the basis upon which the decision itself might
be made. There would be little point in the requirements of natural justice aimed at
ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker
remained free to make an arbitrary decision. 56
One of the best Canadian examples of unreasonableness as a form of
review akin to fairness is the second test for jurisdiction propounded by
Dickson J. in C. U.P.E. After deciding in the first test that the issue under
discussion was within the Labour Relation Board’s geographic jurisdiction,
the learned judge stated the second test as follows:
Put another way, was the Board’s interpretation so patently unreasonable that its
construction cannot be rationally supported by the relevant legislation and demands
intervention, by the Court upon review? 57
52[1974] Q.B. 720,729 (D.C.)per Lord Widgery C.J. quoting with approval the dictum of
Lord Denning M.R. in Pyx Granite Co. v. Ministry of Housing and Local Government
[1958] 1 Q.B. 554, 572 (C.A.): “The principles to be applied are not, I think, in doubt.
Although the planning authorities are given very wide powers to impose “such conditions as
they think fit”, nevertheless the law says that those conditions, to be valid, must fairly and
reasonably relate to the permitted development. The planning authorities are not at liberty
to use their powers for an ulterior object, however desirable that object may seem to them to
be in the public interest.”
Lord Widgery C.J. also quotes approvingly from the headnote in Hall & Co. v.
Shoreham-by-Sea Urban District Council [1964] 1 W.L.R. 240 (C.A.), at p. 730 of
the object sought to be attained by the [planning authority] was a
Hillingdon: ‘A]lthough
perfectly reasonable one, the terms of the conditions, requiring the plaintiffs to construct an
ancillary road at their own expense… , were so unreasonable that they were ultra vires.”
53 Ibid., 648 per Lord Widgery C.J. applying Ridge v. Baldwin, supra, note 1, 74-6 per
Lord Reid.
54 See Re Alberta Union of Provincial Employees and Alberta Classification Appeal
Board (1977) 81 D.L.R. (3d) 184 (Alta S.C., App. Div.) and Martineau (No. 2), supra, note
I.
55(1980) 44 F.L.R. 41 (F.C. Aust.).
56 Ibid., 67.
57 Supra, note 22, 351. A similar case was decided in Service Employees’ International
Union v. Nipawin Union Hospital [1975] 1 S.C.R. 382, but its importance has only now
become clear. The case was heavily relied on in C. U.P.E.
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[Vol. 27
One could link this to fairness by saying that a decision made in bad
faith, unreasonably, or in a capricious or arbitrary way is clearly unfair.58 It
would seem that review of procedural fairness and review of substantive
discretion are really twin duties vested in courts to police the administration
and to make certain that no official is permitted to exercise unlimited power.
Even though many functions, hitherto described as “administrative”, are to
be exercised in an informal, rapid manner, and even though in many of them
the officials quite properly have great discretion, there will always be limits
both of procedure and substance beyond which officials will not be able to
go.
IV. Substantive Fairness and the Trends in Administrative Law
One major advantage in eliminating the “procedural” requirement for
the application of fairness is consistency with present and, it is submitted,
healthy trends in administrative law. The distinction between procedure and
substance is often blurred and can give rise to much technical sophistry.
There has been an unmistakable trend towards eliminating unessential
technical distinctions in administrative law.
There can be no doubt that several years ago, administrative law was a
highly
technical subject, dominated by well-entrenched but unclear
distinctions. 59 Since Ridge v. Baldwin,60 courts had done much to alleviate
this problem. As a general statement of principle, one can take a passage
from the judgment of Lord Reid in Wiseman v. Borneman:
Natural justice requires that the procedure before any tribunal which is actingjudicially
shall be fair in all the circumstances and I would be sorry to see this fundamental
principle degenerate into a series of hard and fast rules. 61
The most important “rule” –
the distinction between administrative and
judicial function – has been substantially weakened by the introduction of
the notion of a “continuum”. 62 Some authorities have even denied the
significance of the distinction altogether.63 Whether this is correct or not,
58 Nipawin, ibid., 389, certainly joins unreasonableness and natural justice together;
presumably, fairness would also be included.
59 See, e.g., “B’! v. Commission of Inquiry [1975] F.C. 602 (T.D.).
6Supra, note 1.
61 [1969] 3 All E.R. 275, 277 (H.L.).
62 Coopers and Lybrand, supra, note 5.
63 Re Scott and Rent Review Commission (1977) 81 D.L.R. (3d) 530, 533-5 (N.S.C.A.)
per MacKeigan C.J.N.S.: “Modern Canadian Courts… have tended to reject
the
“administrative” versus “judicial” test, and have looked rather at the subject-matter involved
and the function of the tribunal or official involved to determine broadly what procedural
rules should be followed to ensure fairness to those protected.” This means that the
distinction, as it is made in Coopers and Lybrand, supra, note 5, is only important for the
purposes of ss. 18 and 28 of the Federal Court Act, R.S.C. 1970, Supp. II, c. 10.
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COMMENTAIRES
there is no doubt that the distinction no longer has the decisive effect it did in
the past.
The distinction between “rights” and “privileges”, while it has not lost its
analytic appeal,64 has also lost some of its significance. Prior to Ridge v.
Baldwin,65 the determination of rights was a sine qua non forjudicial review.
Now such cases as R. v. Criminal Injuries Board, Ex parte Lain66 and
Wiseman v. Borneman67 seem to have established a more flexible standard.68
An area particularly suited for technical wrangling was one of remedies.
It could, for instance, be argued that the complicated arguments about
judicial review of the 1950s and 1960s were really about the use of certiorari.
In Vachon69 the Supreme Court firmly established that procedure was not to
become the deciding factor in law, and that substantive law was to have
primacy at all times.
In C.U.P.E.70 the utility of the traditional technical terminology of
“collateral and preliminary matters” was put in doubt by the Supreme Court.
Technical bans to obtaining damages from officials and public
authority started to crumble with Roncarelli.71 In the field of tort this
tendency has continued with Gershman v. Manitoba Vegetable Producers’
Marketing Board72 and Chartier v. A.-G. Qudbec.73 In contracts, the
leading, “liberal” case is Verrault v. A.-G. Qubec.74 In “restitution”, one
64 See Grey, After Nicholson, supra, note 2, 607, fn. 59 and the unreported case Siclait v.
M.E.L (F.C.T.D.) No. T-5569-78, 24 September 1979.
0 Supra, note 1.
66[1967] 2 Q.B. 864, 881-2 per Lord Parker C.J., 884 per Lord Diplock.
67 Supra, note 61, per Lord Reid.
68The judgment of Dickson J. in Martineau (No. 2), supra, note 1, 618 is particularly
important in this respect. But in Saulnier v. Qudbec Police Commission [1976] 1 S.C.R. 572,
as interpreted in Martineau (No. 2), the distinction still played a role.
69 Supra, note 51. Vachon was followed by Solosky, supra, note 51, and Kelso v.
Government of Canada (1981) 35 N.R. 19, 29 (S.C.C.) per Dickson J., which have,
practically speaking, turned declaration into a general remedy.
70 Supra, note 22, 346-9 per Dickson J.
71 Supra, note 3.
72(1976) 69 D.L.R. (3d) 114 (Man. C.A.) per O’Sullivan J.A. The Court found that the
Board’s conduct, consisting of unlawful threats outside the scope of its statutory powers and
duties, amounted to the tort of intimidation, justifying an award of punitive damages.
73 [1979] 2 S.C.R. 474. In his judgment for the majority, Mr Justice Pigeon found that
members of the Qu6bec Police Force, in the performance of their duties, committed acts of
fault by, inter alia, misusing a Coroner’s Warrant to detain the appellant and unjustifiably
incarcerating him for 30 hours. Damages of $50,500 were awarded.
74 [1977] 1 S.C.R. 41 per Pigeon J. The appellant obtained damages for the unjustified
cancellation by the Minister of Social Welfare of a building contract under which it was to
build an old-age home.
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[Vol. 27
can quote Manitoba Fisheries v. The Queen.75 It is clear that in all these
matters, technical difficulties were disregarded in favour of substantive
justice.
Another similar evolution has been that of locus standi. From a
technical bar to review, locus standi has become a way of weeding out
actions by persons with no interest at all. 76
It stands to reason that, in the context of the new, flexible administrative
law, it would not be the court’s intention to emba.: on a technical definition
of procedure and substance and that certain minimal and similar rules of
justice would apply to both. Thus “substantive fairness” is not only not a
heresy but is an essential component of the new orthodoxy.77
Conclusion
Our system of government vests seemingly unlimited legislative power in
the Queen in Parliament under the title of parliamentary sovereignty. 78 It
vests equally unlimited original jurisdiction in the superior courts79 to
adjudicate on all issues. Although Parliament may limit the courts’
jurisdiction, the courts will have the last word in interpreting such a
restriction of their power. This division of powers is essential to prevent the
growth of tyranny and to maintain an equilibrium in a system where few of
the formal protections of the American Constitution exist.80
75[1979] 1 S.C.R. 101, 116-8 per Ritchie J., affg Lord Atkinson’s judgment in A.-G.
v. De Keyser’s Hotel, supra, note 17, 542. The appellant was awarded damages for the
deprivation of its goodwill as a going concern.
76 See A.-G. Gambia v. N’Jie [1961] A.C. 617, 634 (P.C.)per Lord Denning speaking to
the question of what constitutes an aggrieved person for the purpose of obtaining locus
standi: “The words “person aggrieved” are of wide import and should not be subjected to a
restrictive interpretation. They do not include, of course, a mere busybody who is interfering
in things which do not concern him.” Thorson v. A.-G. Canada [1975] 1 S.C.R. 138 per
Laskin J. (as he then was) for the majority, held that courts have a discretion to grant locus
standi to taxpayers to raise a constitutional question when it would otherwise in all
likelihood be immune from judicial review. Nova Scotia Board of Censors v. McNeil[1976]
2 S.C.R. 265 per Laskin C.J. widened the scope of this discretion to “members of the public”.
77 One proof of the orthodoxy of the idea is the fact that an article by Prof. David Mullan
on substantive fairness appears in this very issue and was presumably exactly contemporary
with the present essay. Another interesting analysis is found in Lyon, Administrative
Law- Combining Search for a General Theory of Judicial Review of Administrative
Action for Legality (1980) 58 Can. Bar Rev. 646.
(1965), 39-85, and G. Marshall, Constitutional Theory (1971), 35-72.
78See, e.g., A. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed.
79 See Board v. Board [1919] A.C. 956, 962 (P.C.) per Viscount Haldane: “If the right
exists, the presumption is that there is a Court which can enforce it.” Chaudry, supra, note 3,
1624, per Lord Denning M.R.: “Whenever Parliament has enacted a law and given a
particular remedy for the breach of it… the High Court always has reserve power to enforce
the law.”
80 The connection between fairness and certain constitutional problems is clearly seen by
Deane J. in Pochi, supra, note 55. At p. 65, Deane J. discusses American principles of
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COMMENTS
Absolute power on the part of members of the executive is absolutely
incompatible with the court’s role in the system.8′ The expansion of
government and growth in the scope of officials’ decisions has forced courts
to look for more effective tools of review in order to maintain the equilibrium
of forces.
Procedural fairness is one such tool. By itself, fairness is a limited
concept, and moreover is very easy to evade. Its effectiveness is only ensured
when it is not too narrowly circumscribed. Of course, there can be no
question of government by courts; the courts will only interfere in cases of
flagrant abuse. However, it is not possible to limit fairness to matters of
procedure. Fairness is only effective when combined with some form of
obligation to motivate public decisions and with the traditional and well-
established rules for the review of the substance of discretionary decision.
procedural due process and views them as essentially no different from British (and hence
Australian or Canadian) law. It would be a welcome development if this view were generally
accepted.
81 For judicial discussion of the division of powers, see, in particular, R. v. Catagas (1977)
81 D.L.R. (3d) 396 (Man. C.A.)per Freedman C.J.M., who held that the Crown may notby
executive action dispense with laws in favour of a particular group; Gouriet, supra, note 7,
(C.A.) 322 per Lord Denning M.R., and (H.L.) 496 per Lord Diplock; Laker, supra, note 8,
250 per Lord Denning M.R.: “Seeing that the prerogative is a discretionary power to be
exercised for the public good, it follows that its exercise can be examined by the courts just as
any other discretionary power which is vested in the executive”. In Kelso, supra, note 69,
Dickson J. makes it clear that government departments are not above the law.
