Article Volume 26:1

Judicial Review and Procedural Fairness in Administrative Law: II

Table of Contents

McGILL LAW JOURNAL

REVUE DE DROIT DE McGILL

Volume 26

Montreal

1980

No. 1

Judicial Review and Procedural Fairness in

Administrative Law: II

R. A. Macdonald*

Abstract

review

indicated

revealed

The recent Canadian embrace of the doctrine of procedural fairness
has led to a small flood of litigation and to a serious revaluation of
the law of implied procedural review. In Part I of this essayt several
themes were explored. An analysis of the historical foundations of due
process supervision
that, unlike jurisdictional control and
review, for errors of law, it. does not rest on a constitutional theory
about the role of the judiciary. Rather, it is founded on a particular
theory of adjudication (adversarial adjudication), and it developed from
the desire by the Court of King’s Bench to impose its model of dispute
settlement on inferior jurisdictions exercising functions similar to those
of the Court. Moreover, an examination of the intellectual context of
procedural
to common assumption,
implied procedural review was not extended in the past, in any systematic
fashion, to parliamentary delegates not exercising adjudicative functions.
As a result, the justification for procedural supervision in non-judicial
contexts must lie in some theory of procedural justice. Little specific
guidance can be found in traditional literature on this topic, but some
legal writing indicates that such a theory could be grounded on the
democratic values of participation and consent. Neither of these values
compels judicial procedural supervision, an adversarial paradigm for
due process review, or the belief that procedural fairness can be objecti-
fied in individual circumstances.
A detailed review of the actual and potential applications of the new
fairness doctrine revealed the possibilities for such a theory in a range
of decision-making processes and in respect of informal, semi-formal and
highly formalized statutory schemes. This review indicated that, even

that, contrary

*Associate Professor, Faculty of Law, McGill University.
t (1980) 25 McGill LJ. 520.

McGILL LAW JOURNAL

[Vol. 26

in substantial
when statutory procedural guidelines are promulgated
detail, a role for implied procedural supervision could be justified. Ex-
ploration of the potential impact of fairness thus seemed to reinforce
the arguments its proponents advanced as to the need for wide-ranging
procedural review.
This Part will attempt a prescriptive analysis of the future of procedural
review by examining its distinctive characteristics. From this examina-
tion, the fundamental elements of an alternative concept of procedural
fairness will be deduced. The essay will conclude with the formulation of
a theory of procedural review of administrative action and an institu-
tional model which exploits the possibilities of the emerging doctrine
of fairness.

I. Towards a theory of implied procedural review

The law of procedural review in Canada has not developed
markedly since the Supreme Court of Canada gave judgement in
the Nicholson case,” and in many respects subsequent judgements
have followed a pattern established in England. The vocabulary of
procedural review may have changed but the concerns which pro-
duced the quasi-judicial/administrative dichotomy remain; deci-

‘Re Nicholson & Haldimand-Norfolk Regional Board of Commissioners
of Police [1979] 1 S.C.R. 311 per Laskin C.J.C., Ritchie, Spence, Dickson and
Estey 13. concurring; Martland, Pigeon, Beetz and Pratte J3. dissenting. See
Grey, The Duty to Act Fairly after Nicholson (1980) 25 McGill L.J. 598. This
is not to say that the courts have ignored the doctrine: see, e.g., R. V.
98 (Ont. Div. Ct), aff’d 27 Chitty’s L.J. 174
Saikaly (1979) 27 Chitty’s L..
(Ont. C.A.); M.N.R. v. Coopers & Lybrand [1979] 1 S.C.R. 495; Re Webb
& Ontario Housing Corp. (1978) 22 O.R. (2d) 257 (C.A.); Harvie v. Calgary
(S.C. App. Div.); Inuit
Regional Planning Commission (1978) 12 A.R. 505
Tapirisat v. Governor-in-Council [1979] 1 F.C. 710 (C.A.); Martineau & Butters
v. Matsqui Institution Inmate Disciplinary Board (No. 2) (1979) 30 N.R. 119, 13
C.R. (3d) 1 (S.C.C.); Re Abel & Director, Penetanguishene Mental Health
Centre (1979) 24 O.R. (2d) 279 (Div. Ct); Re Island Protection Society &
The Queen (1979) 98 D.L.R. (3d) 504 (B.C.S.C.); Bruce & Meadley v. Reynett
[1979] 2 F.C. 697 (T.D.); Re Rozander & Energy Resources Conservation
Board (No. 2) (1979) 93 D.L.R. (3d) 284 (Alta S.C. App. Div.); Re Proctor
(1979) 24 O.R. (2d) 715 (C.A.); Re S & M Laboratories Ltd & The Queen (1979)
24 O.R. (2d) 732 (CA.); Re Men’s Clothing Manufacturing Association &
26 O.R. (2d) 20 (Div. Ct); Re Gillingham & Metropolitan
Arthurs (1979)
Toronto Board of Commissioners of Police (1979) 26 O.R. (2d) 77 (Div. Ct);
(C.A.); Re Peterson &
Re Downing & Graydon (1978) 21 O.R. (2d) 292
Atkinson (1978) 23 O.R. (2d) 292 (C.A.); Re Brown & Waterloo Police Com-
missioners (1979) 26 O.R. (2d) 746 (Div. Ct).

2 See Loughlin, Procedural Fairness: A Study of the Crisis in Administra-
tive Law Theory (1978) 28 U.T.LJ. 215, 226-30 and cases such as Pearlberg
v. Varty [1972] 1 W.L.R. 534 (H.L.); Bates v. Lord Hailsham [1972] 1 W.L.R.
1373 (Ch.); Selvarajan v. Race Relations Board [1976] 1 All E.R. 12 (C.A.).
Cf. Denning, The Discipline of Law (1979), 88-96.

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

sions such as Coopers & Lybrand seem to retreat from the implica-
tions of Nicholson by tying questions of procedural supervision to
a classification of function approach 3 While recognizing the con-
cept of fairness (and indeed asserting the possibility of procedural
control over processes which previously would not have been
characterized as judicial), courts have not sanctioned and followed
a flexible approach to the supervision of due process, but have
relied on a modified classification of function framework to struc-
ture the process by which procedural formalities are implied.

Loughlin attempts to explain this conservatism by way of the
traditional “rule of law” thesis which he feels underlies the com-
mon law system. He argues that the theory of procedural fairness
requires courts to engage in a purposive balancing of interests
which runs counter to the assumptions of classical adjudication:

the court -would increasingly be tied to notions of instrumental rationality
which, because that tends to destroy the idea of rule-governed behaviour,
would then tend to destroy the basis for certainty, the distinctive nature
of the adjudicative process, and thus destroy
the symmetry of the
traditional model. 4

In Loughlin’s view, judges appreciate that activism in applying a
theory of fairness would vest them with power to determine how
bureaucratic decisions should be taken.5 Since these determinations
cannot be characterized as judicial decisions, in so far as they do
not involve the invocation of a pre-existing normative structure,
judges are loath to make them. Hence, by resisting what Loughlin
describes as an informalist approach to implied review, the courts
maintain the distinctiveness and moral force of decision-making
institutions such as adjudication, and avoid administrative chaos
by ovdr-judicialization of decisional processes. Loughlin concedes
that an ad hoc approach to fairness in situations which closely
resemble classical adjudication may improve certain aspects of
the administrative process, provided that this does not imply the
projection of adjudicative assumptions into non-adjudicative pro-
cesses, and that the standards of procedural fairniess; although
flexibly applied, are known and agreed.6

3 An excellent summary of the relationship between Nicholson and Coopers
& Lybrand is contained in Mullan, Administrative Law (1980) 1 Supreme Ct
L. Rev. 1, 2-20.

4 Supra, note 2, 237. For a more complete analysis of this theme see
Arthurs, Rethinking Administrative Law: A Slightly Dicey Business (1979)
17 Osgoode Hall L.. 1.

5See Re Downing & Graydon, supra, note 1; Re Peterson & Atkinson,
supra, note 1; Re Proctor, supra, note 1. But cf. Re Abel & Penetanguishene
Mental Health Centre, supra, note 1; Re Gillingham, supra, note 1.

0 See supra, note 2, 240-1.

McGILL LAW JOURNAL

[Vol. 26

In view of this caution, advocates of an activist judicial approach
to fairness are compelled to address the following question:
is
there any way to preserve the two main benefits which flow from
adoption of the fairness doctrine, namely, the exposure of all
administrative decision-making to review on procedural grounds,
and the abandonment of a rigid bifurcation of statutory powers
into judicial and administrative categories for the purposes of
determining the content of procedural review, without compromis-
ing the integrity of adjudication or the efficacy of administration?
Investigation of this question may begin with an enumeration of
the components of the fairness theory. Although the concept has
been widely discussed in academic literature, few authors have
identified the ends to which fairness should be invoked. Mullan,
however, suggests:

[i]n some instances … it will mean nothing more than acting in good
faith … . [W]hen the decision in question can be seen as much closer
to the policy-oriented, traditionally “administrative” decision,
the em-
phasis is going to be on informality with written “hearings” the order
of the day and no more than the gist of the relevant information avail-
able to affected parties … . Beyond this … the courts will encounter
the traditional kind of natural justice arguments and little will be
changed here where the issues are matters such as representation by
counsel, right to cross-examination, advance access to every scrap of
relevant and marginally relevant paper, precision of issues, and the like.7
In other words, it appears that the concept of fairness is directed
to what may broadly be identified as participation in decision-
making.” As a result, the conditions under which any form of parti-
cipation should be permitted, the precise nature of such parti-
cipation in individual cases, and the constraints placed on decision-
makers in order to guarantee the effectiveness of this participation
are the fundamental elements of a theory of procedural fairness.

But fairness is also a theory of implied due process review;
consequently it will be invoked subsidiarily in the interstices of a
statutory procedural framework. Review for fairness, like review
for natural justice, represents a distinctive kind of judicial super-
vision, which does not share the same attributes as review on
jurisdictional grounds. Therefore, proponents of this theory must
first ask how fairness coheres with the general concept of implied
procedural review in the Canadian legal system.

7Mullan, Fairness: The New Natural Justice? (1975) 25 U.T.L.J. 281, 314-5.
8The doctrine of fairness therefore should not be seen as involving any
substantive element (cf. Grey, supra, note 1, 601-2), although it may wcll in-
volve several elements not directly related to a “hearing” in the traditional
sense of that term.

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

A. The distinctive character of implied procedural review

What are the salient characteristics of implied procedural re-
view, and on what basis should this form of due process review
be sustained in individual cases? In answering these questions one
may emphasize three main themes. First, on no other ground of
judicial review are the immediate interests of the disputing parties
so connected to bureaucratic, non-legal concerns. Ultra vires review
protects citizens from unauthorized exercises of governmental
power, and review for errors of law controls the substantive legal
framework of decision in particular instances; both usually have
no long-term effect on the internal management of bureaucracies.
By contrast, implied procedural review speaks neither to the statu-
tory limits of a decision-maker’s power, nor to the pre-existing law
he must apply, but, theoretically, only to the institutional pro-
cedures by which decisions are made.’ Although these may not
have a strictly logical connection with the substantive result reached
in a given case, they reveal at least an ethical or aesthetic connec-
tion.10 Consequently, the overwhelming majority of implied pro-
cedural review cases, while phrased in the narrow legal language
of a lis inter partes, manifest a larger institutional problem.

As has been noted, the revocation of parole without granting
a hearing reflects not only a substantive injustice in an individual
case but an abuse of decisional power within the National Parole
Board;” ‘ the refusal to indicate what is defective in an applicant’s
request for citizenship may reveal both the existence of prejudice
against a particular person and a bureaucratic snag in the Ministry
concerned;’2 and the failure to entertain the possibility of attitu-
dinal bias in a Royal Commissioner probably has more to do with
a theoretical misconception of the role of inquiries than an attempt
to defeat the interests of the applicant. 13 In each example, statutory

9 0f course, review for procedural ultra vires is more akin to review for
formal ultra vires. In both these cases, one is challenging administrative
activity on the grounds that statutory provisions have not been followed.

10 See Macdonald, Judicial Review and Procedural Fairness in Administra-
tive Law: I (1980) 25 McGiU LJ. 520, 536-42; Fuller, A Reply to Professors
Cohen and Dworkin (1965) 10 Villanova L. Rev. 655, 665-6.

“See Howarth v. National Parole Board [1976] 1 S.C.R. 453, and the com-
ment by Price, Doing Justice to Corrections? Prisoners, Parolees and the
Canadian Courts (1977) 3 Queen’s L.J 214.

1 Compare Lazarov v. Secretary of State [1973] F.C. 927 (C.A.) and Prata

v. M.M.L [1976] 1 S.C.R. 376.

13Re Copeland & McDonald [1978] 2 F.C. 815 (T.D.), and the article by
Macdonald, The Commission of Inquiry in the Perspective of Administrative
Law (1980) 18 Alta L. Rev. No. 3 (forthcoming).

McGILL LAW JOURNAL

[Vol. 26

procedures were followed, yet one could claim that procedural
defects afflicted the manner in which decisions were taken. The
aggrieved parties did not argue that decisions were substantively
ultra vires, but that the processes of decision were inappropriate
to the decision at hand. Hence, in cases involving the allegation of
procedural impropriety, the usual rationale for permitting indivi-
duals to seek judicial review, which is to supervise the legality of
specific administrative acts so as to redress legitimate grievances
when necessary, is generally no more cogent than the subsidiary
rationale, that is, to review the structures and processes employed
by statutory decision-makers to ensure that agency policy is de-
veloped in an orderly and reasonable fashion.

A second distinctive characteristic of implied procedural review
may be described as its integrative function. Review on grounds
of jurisdiction functions principally in the same manner as an
appeal: it protects individuals from unjustified interference and
reproaches pretenders to power. Jurisdictional review also provides
a second, but more limited, opportunity for dissatisfied persons to
advance substantive claims. By contrast, procedural review does not
check power, but structures its exercise: it aids in redefining ad-
ministrative decision-making in conformity with traditional con-
cepts of judicial decision-making. Administration may be charac-
terized as the management of specified tasks and problems in order
to achieve a determined policy; legal rules of jurisdiction and pro-
cedure only limit the framework within which activity is under-
taken, and are peripheral concerns of the bureaucrat. To the judge
or lawyer, however, questions of policy are peripheral; ambivalent
to the needs and constraints of bureaucracy, the Bench and Bar
tend to be preoccupied with the outer limits of administrative
power and decision-making. 4

Recourse to implied procedural review may thus harmonize
major decision-making institutions of government: bureaucratic
attention can be directed to means as well as ends, while judicial
attention must be directed to ends as well as means. Just as judges
must be sensitive to problems of administration when they act as
personae designatae under various statutes, or when they are called
upon to monitor complex injunctive decrees, the bureaucracy must
concern itself with questions of legality if it is subject to review
for unfairness in the exercise of its powers of decision. Of course,
the, benefits of procedural review will only be realized if the re-

‘ 4Wilson, “Discretion” in the Analysis of Administrative Process (1972) 10

Osgoode Hall L.J 117, 133-9 gives an excellent summary of this distinction.

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

viewing agency is aware of institutional limitations within which
bureaucracies must function.15

Implied due process review possesses a third main feature,
namely, that it serves the political function of enfranchisement.
While judicial review on jurisdictional grounds is concerned with
protection of the substantive rights of those who are party to a
decisional process, procedural review is by its nature directed to
guaranteeing the effective participation of persons likely to be
affected by administrative decisions. In one sense, an essential
element of freedom is “the opportunity to participate in decision-
making processes”.Y’ When judicial review is sought on procedural
grounds, the applicant is in fact claiming to be enfranchised; the
argument advanced is not that a decision was itself unlawful, but
that one has a right to participate in a certain manner in that
decision.

From this perspective, questions of procedural fairness and
standing are linked: the latter regulates claims that the value one
personifies ought to be within the contemplation of the decision-
maker, and hence one ought to be permitted to challenge a deci-
sion; 17 the former assumes the function of structuring, in individual
cases, the nature of the participation which the law of standing
ensures. Procedural review consequently serves an important pur-
pose in constitutional theory, that is, to stimulate and guarantee
creative and meaningful democratic participation in administrative
government. While ultra vires review protects fundamental concepts
of legality in any system of law, procedural review enshrines a
theory of participation in political institutions which is peculiar to
liberal democratic systems.18

Thus, implied procedural review constitutes a distinctive aspect
of judicial review of administrative action. For the bureaucratic
decision-maker being reviewed, it can be more instructive than
ultra vires review. If prospective, directed to institutional difficul-

‘5 Arthurs, supra, note 4, 41-2 is skeptical of the judiciairy’s capacity
to exploit the integrative possibilities of review. See also Wexler, Non-
judicial Decision-making (1975)
1GFuller, Freedom as a Problem of Allocating Choice (1968) 112 Proc. Am.

13 Osgoode Hall LJ. 841.

Phil. Soc’y 101, 103.

Identity: The Coming of Age of Public Law (1978).

11This metaphorical elaboration of standing is taken from Vining, Legal
‘ 8 See Rostow, The Democratic Character of Judicial Review

(1952) 66
Harv. L. Rev. 193; cf. Mace, The Anti-Democratic Character of Judicial
Review (1972) 60 Cal. L. Rev. 1140. Both these articles examine constitutional
judicial review in the United States, but their respective theses may be
applied to administrative judicial review in Canada.

McGILL LAW JOURNAL

[Vol. 26

ties, and structured so as to provide guidelines for future conduct,
it may improve the processes of public administration. From the
standpoint of the reviewing agency, implied due process review may
be a more effective integrative tool than jurisdictional review. Since
the special concerns and abilities of legal decision-makers are often
procedural, it permits the reviewing agency to express these con-
cerns without having to impugn substantive agency policy. From
the perspective of the person seeking review, procedural control
fulfils a more fundamental political function than ultra vires
review. Constitutional principles such as the rule of law are most
meaningful in contexts where the right to participate in government
is guaranteed; procedural review is directed towards evaluating
the nature and conditions of participation accorded to individual
citizens.

These three features confirm in principle the desirability of
exposing all acts of statutory decision-makers to implied due pro-
cess supervision by courts. Although such a perspective is attractive,
the benefits achieved must be weighed against the negative aspects
of increased review. The late Professor Abel enumerated several
of these, including problems relating to status, ripeness, delay, cost,
cognitive dissonance and unpredictability. 19 Consequently, an evalua-
tion of the desirability of adopting the fairness concept compels
the following specific queries: at whose behest, at what time, by
whom, in what format and on what grounds should procedural
review be permitted? These questions may be restated in three
general themes:

(i)
(ii)

(iii)

is a law of judicial procedural review to be encouraged?
is review on procedural grounds most effective when it involves
the elaboration and implementation of a structure of rules, or
when it results in the creation of something akin to a role morality?
should an adversarial, adjudicative paradigm, as opposed to a con-
sensual, mediational model of decision, be adopted as the structure
for review?

B. The agency of procedural review

Normally, analyses of the review of administrative action do not
focus on what agency is the most appropriate body to undertake
such review; in fact, the very term “judicial review” seems to
preclude this discussion. But in view of the distinctive characteris-
tics of procedural review, and the fact that traditional rule-of-law
arguments supporting review on jurisdictional grounds are not

19 Abel, Appeals Against Administrative Decisions (1962) 5 Can. Pub. Admin.

65, passim.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

directly applicable to implied due process supervision, it is appro-
priate to consider whether judicial review is the most desirable
mechanism for controlling or superintending decision-making pro-
cedures. There are two separate facets to this inquiry: first, do the
institutional constraints of judicial review compromise the utility
of due process control, and, second, are legally trained individuals
who hold judicial appointments necessarily the best equipped to
effect the guidance contemplated by implied procedural control?

The institution of judicial review is often confused with the
appellate function of courts. Even judges and lawyers who can list
salient differences between the two mechanisms often permit the
assumptions of one judicial function to permeate others.2 In prin-
ciple, a motion for judicial review involves the allegation of a lack
of jurisdiction (error of law on the face of the record excepted),
which is to say that it involves an indirect attack on the substance
of decision, through a direct challenge to the power of the decision-
maker to act as he did. Unlike appeals, review implies that for
some formal reason
to
decide, not that his decision was wrong on its merits?’

the decision-maker had no authority

While the blurring of the distinction between appellate and
review functions may not be totally inappropriate in cases involving
formal ultra vires review,2 2 it is nefarious in cases of implied pro-
cedural review. In the latter instances the original decision-maker
will invariably be faced again with the same issue, and the review-
ing agency must therefore be prepared to provide guidelines as to
the maimer of decision-making that can be applied consistently and
impartially. Hence the remedial assumptions underlying judicial
appellate review do not necessarily apply to implied due process
review.

20See P~pin & Ouellette, Principes de contentieux administratif (1979),
338-44 for a brief summary of the major legal differences between statutory
appeals and judicial review in administrative law.

21It is not being suggested that certain decisions (especially those in-
volving so-called abuses of discretionary power) do not reflect some degree
of confusion of jurisdiction and merits. See, e.g., Metropolitan Life Insurance
Co. v. International Union of Operating Engineers [1970] S.C.R. 425. Never-
theless, there is a theoretical difference between appeals and review which
should be maintained if the legal function of each is to be preserved.

22In both cases the original decision-maker is permanently disseized of
the dispute, and in both cases a substantive determination is being made.
Review for abuse of discretion is a hybrid in that the original decision-
maker may continue to have jurisdiction to decide even after his first
determination is annulled. Yet this is similar to an appellate court referring
a matter back to a trial court for disposition.

McGILL LAW JOURNAL

[Vol. 26

Moreover, there are several reasons why vesting review juris-
diction in the courts may not be a preferable solution to the problem
of which agency should control breaches of procedural propriety
on implied grounds. First, implying procedural formalities is an
essentially legislative rather than adjudicative activity. The failure
of courts to develop a test for determining when a hearing is re-
quired attests to this fact. Much of the moderate critique of judicial
review on procedural grounds has centered on the fact that un-
warranted effort is devoted to the classification of functions, rather
than on developing guidelines relating to the situations where the
right to a hearing will be implied.2 3 As a result, rarely do review
decisions offer criteria for assessing specific procedural formalities.
Because judicial review on implied procedural grounds occurs in
the context of ordinary judicial proceedings, it necessarily shares
the retrospective characteristics of all adjudication upon questions
where no fixed standards are present. 4

A second deficiency in judicial review can be traced to the fact
that it is seen primarily as litigational and remedial. Because of
this orientation, the specific grounds on which review is granted
are usually stated as general principles, but not principles that are
readily understood by non-lawyers. A failure to relate the procedural
requirements being imposed to the dynamics of the decision-making
process under review makes extrapolation of these requirements
to other contexts almost impossible. Hence, one may find an
allegation that the wrong evidentiary standard was applied, but no
guidance as to when one or another standard will be appropriate.
Similarly, with respect to judicial notice, usually little elaboration
is provided as to what does or does not fall within the tribunal’s
specialized knowledge, and why. Accordingly, while judicial review
judgements may explain why certain procedures are inappropriate,
because they are written for lawyers, they rarely provide the same
insight for the statutory decision-makers who are expected to abide
by them.

A third characteristic of procedural review by courts which
is open to criticism is that control on due process grounds is
effected by holding the tribunal’s conduct up to a standard, ascer-
taining that the standard has not been met, and annulling the re-

23 See, e.g., Reid & David, Administrative Law and Practice, 2d ed. (1978),

chs. 1 and 4.

24 For an attempted justification of such an adjudicative model in the
common law, see Fuller, Anatomy of the Law (1968), Pt II. From Fuller’s
comments it is clear that implied procedural review falls into the category
of decisions having the strongest retrospective flavour.

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

suiting decision. But, implied due process review is founded not
so much on a framework of rules as on an underlying paradigm
of decision-making which colours the application of the rules by
which impropriety is gauged. When a reviewing court asserts that
a lawyer should have been present, or that a hearing should not
have been held in camera, it is tempting to view such a decision
as being derived from the procedural requirements associated with
ordinary civil litigation. Yet neither of these two requirements is
commonly found in judicature acts or rules of practice. In effect,
the court’s ability to individuate such requirements derives from its
understanding of adversarial adjudication as an operative para-
digm. Nevertheless, judicial review judgements usually state that
some procedural requirement has been breached; rarely do they
concentrate on exploring and illustrating the decision-making struc-
ture which underlies the requirement being imposed.

An evaluation of which agency should be vested with powers of
review on implied procedural grounds also requires an investigation
of the aptitudes of the individuals who staff the reviewing body.
One must ask whether the priorities and perspectives of the legally
trained militate against the development of procedural review
across the wide range of functions contemplated by the fairness
doctrine s 5 From the beginning it must be remembered that not
every exercise of state power is arbitrary, unjust, discriminatory
or unreasonable. Poor decisions are as likely to result from under-
staffing, overwork, lack of training, and other managerial difficul-
ties, all of which presuppose good faith on the part of the
decision-maker. However, many lawyers wish to erect elaborate
legal controls over the exercise of public power because they fear
any exercise of administrative discretion. From this perspective
even the possibility of unrestricted exercises of state power is a
serious abuse of civil liberties. In commenting on the McRuer
Report, Willis noted:

We are told a great deal about the dreadful things that, as the law now
stands, civil servants might do to the citizen but are given no actual
instances of them actually having done so 2 6

This is to say that the legally trained desire to structure narrowly

25 See Hehner, The Public Servant and the Legalistic Mentality (1970) 13
Can. Pub. Admin. 324. I am not suggesting in the following paragraphs that
the legalistic perspective is inappropriate in general: these comments are
directed only to the suitability of such an approach in the sphere of
implied procedural review.

26Willis, The McRuer Report: Lawyer’s Values and Civil Servant’s Values

(1968) 18 U.T.LJ. 351, 352.

McGILL LAW JOURNAL

[Vol. 26

the range of statutory discretions granted to “arbitrary” adminis-
trators.21

Individuals who are legally trained tend to be pre-occupied
with the adversarial adjucative model of decision-making. The
lawyer not only claims that third-party review is a necessary
component of a legal system, but he asserts that only control by
judicial institutions is a guarantee of the reviewing agency’s in-
dependence. The adversary model of adjudication is, however, not
a decisional structure well suited to the development of procedural
norms: the psychology of confrontation, delay and “winner-take-
all” inherent in this system should have no place in a procedural
review process. Due process supervision before a tribunal whose
procedures are adversarial and adjudicative rests on the assumption
that one can find a permanency and immutability of structures and
standards, as well as a fixed criterion by which the circumstances
of their invocation can be determined. Yet this assumption cannot
be sustained, as the recent history of the classification of function
exercise has revealed.

One may identify another aspect of the lawyer’s perspective. In
reference to the non-adjudicative model of the Conseil d’Etat, Willis
said that the McRuer Commission rejected it simply because it
was a

“strange new thing”; … the Commission [was preoccupied] with pro-
tecting individual rights, and the [influence of] the traditions of the legal
profession. 28

In other words, Willis recognized that the greatest impediment to
the adoption of such a structure lay in the attitudes of lawyers to
processes of the law, the very processes which are themselves un-
suited to procedural due process supervision. The legal profession
is particularly concerned with tradition and precedent, with form-
alism and settled ways of acting. Undoubtedly, the development
of new criteria of procedural fairness for non-adjudicative pro-
cesses puts a premium on inventiveness, flexibility and experimen-
tation.

This brief consideration of certain institutional deficiencies of
judicial review on grounds of implied due process requirements,
as well as of the intellectual perspectives of the legally trained,

27Such a view is paradoxical, given the acceptance of wide

judicial
discretion in evidentiary matters, causation, division of family assets, de-
pendent’s relief, injunctions, specific performance, and so on. One may
only conclude that it is not discretion which is the object of apprehension,
but non-judicial discretion.

28Willis, Foreign Borrowings (1970) 20 U.T.LJ. 274, 279.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

suggests that opponents of the judicialization of administrative
procedures are advancing a more subtle critique than is usually
recognized. The argument is not simply one of parliamentary supre-
macy, or even that the administrative process is different from the
judicial process. Rather, commentators claim that the institution
of judicial review is inappropriate both because it is judicial and
because it is review: the legally trained tend to assume the superiori-
ty of the common-law adjudicative process, including an emphasis
on rules and the adversary system; the nature of review in judicial
institutions is remedial, censorial and oriented principally to the
invocation of rules. As a consequence one may conclude that the
special character of implied review suggests a reconsideration of
both the procedures of, and the forum in which, due process super-
vision is effected.

C. Rules and roles in implied procedural review

A second question must be addressed before a theory of pro-
cedural review can be elaborated. Are the benefits of implied review
guaranteed only through the adoption of a framework of rules, or
is it also necessary that review have an educational component for
decision-makers? This, of course, raises one of the fundamental
issues of legal philosophy:
to what extent is human conduct
governable by rules, and to what extent can rules provide a structure
within which responsible decision-making can take place?

As legal thought and practice in Canada are generally positivistic
in orientation, these questions may be otiose. Since rules are seen
by positivists as self-executing, it follows that human conduct not
only can, but can most efficaciously, be subjected to governance by
rules. The existence of a legal rule, not its application, is paramount,
and the task of deciding when the legal rule is applicable becomes
quasi-automatic. Who is deciding, consequently, is of minor signifi-
cance in the process of decision-making; moreover, the interpreta-
tion and application of law are seen as involving no intellectual
process which is external to the language of the legal rule itself.9
Yet the positivistic view of legal decision-making is being chal-
lenged. First, lawyers are coming to believe that rules can operate
only as guides to decision. A consequence of the latent ambiguity of
language is that both the meaning of a rule and its practical applica-

29 Although this caricature of the positivist position is presented without
subtlety, it does reflect the main tenets of this school of legal philosophy.
For the most coherent treatment see Hart, The Concept of Law (1961), chs.
6-9. A more detailed critique than that presented below may be found in
Wexler, Discretion: The Unacknowledged Side of Law (1975) 25 U.T.LJ. 120.

McGILL LAW JOURNAL

[Vol. 26

tion in a concrete case are the product of judgement on the part
of decision-makers. Even in the presence of a relatively straight-
forward linguistic formulation of a legal rule, a decision-maker
must himself become implicated in the process of decision.30
Lawyers and judges now acknowledge that legal rules operate in
a broader context. Not only do other normative systems condition
the meaning of legal rules, but the common lawyer’s concept of a
legal rule is a posteriori, in that it is descriptive of a past decision
or series of past decisions, and only secondarily prescriptive.31
A final attack on the positivist model is that what is truly distinctive
about the legal system is not the structure and contents of its rules,
but the expectations and assumptions shared by participants com-
mitted to the legal process. It is argued that what permits lawyers to
take various human situations, reformulate these into an issue
which can be disputed, argue these with conviction before a judge,
and understand a decision is not a system of legal rules but rather
the learned process of thinking like a lawyer.32

The implications of this alternative

theoretical attitude for
implied procedural review are quite significant, so far as they show
that due process rules for decision-makers will not alone promote
procedural fairness. First, these rules must be capable of integra-
tion into other normative systems affecting the decision-maker;
second, they must cohere within a system of beliefs about decision-
making which is capable of explanation by the reviewing agency;
finally, the rules set out must be addressed to the kinds of per-
ceptions a statutory decision-maker is likely to share. In other
words, procedural review must consist of more than the establish-
ment of rules to be followed by administrative decision-makers; it
must perform an educative function, encouraging the development
of certain paradigms of decision and engendering commitment to
them.

The most common process by which such commitments are
inculcated
is through what sociologists call a “role morality”.
Lawyers and other professionals often fail to appreciate how much
of their conduct is conditioned by attitudes, approaches and pers-
pectives, rather than rules. Confronted with a piece of legislation
or the judgement of a court, lawyers react differently from most

30 See Fuller, Positivism and Fidelity to Law – A Reply to Professor Hart

(1958) 71 Harv. L. Rev. 630, 661-9.

3′ See, e.g., Harari, The Place of Negligence in the Law of Torts (1962), 1-18;
Fuller, “Some Unexplored Social Dimensions of the Law” in Sutherland,
The Path of the Law from 1967 (1968), 57.

32 See Shklar, Legalism (1964), 1-18.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

citizens, so far as their training leads them to see certain relation-
ships, and not others, to read limitations into certain terms, and
not into others, and to formulate problems in particular ways. Legal
training usually permits lawyers to interpret written rules coherent-
ly: their ability to work with a system of rules derives not so much
from the rules themselves as from adopted concepts of role.33 It
follows that when an application for judicial review founded on
implied procedural grounds results in a general rule respecting
appropriate procedures, this rule has a meaning for lawyers which
may not be grasped by other statutory decision-makers. Procedural
rules about adjudication, developed and promulgated by experienced
adjudicators, will only have an impact in the restructuring of
decision-making when they are directed to those who are familiar
with the idea of procedural rules and with the basic assumptions
of adjudication. In any other context they will be much less
meaningful because those for whom they are intended will not
share the role morality necessary for understanding and implement-
ing them. As Felix Cohen once stated:

The ancient wisdom of our common law recognizes that men are bound
to differ in their views of fact and law, not because some are honest
and others dishonest, but because each of us operates in a value-charged
field which gives shape and colour to whatever we see.34
While it is clear that the simple invocation of rules may in the
short term improve the procedural fairness of all administrative
decision-making (especially where the process under review is ad-
judicative in nature), the long-range effectiveness of due process
supervision is contingent on two other factors: any rules promulgat-
ed must be capable of integration into an appropriate role morality
which can be understood by the administrative decision-maker,
and the reviewing agency must attempt to involve the decision-
maker under review in the creation of this role morality.

D. Adversarial adjudication and implied procedural review

In an earlier section, it was suggested that judicial review on
due process grounds might be inappropriate, partly because the
forum of review was adversarial in nature. In this section, another
aspect of judicial review will be addressed, namely, its potentially
limiting effect on the creation and invocation of non-adjudicative
paradigms of administrative decision-making. A further question
to be addressed in developing a theory of procedural review is thus
whether all statutory processes should be evaluated against a back-

33Bishin & Stone, Law, Language and Ethics (1972), ch. 13.
3 Cohen, Field Theory and Judicial Logic (1959) 59 Yale LJ. 238, 242.

McGILL LAW JOURNAL

[Vol. 26

drop of adjudication, or whether a variety of decisional paradigms
should be created to reflect the procedures by which administra-
tors effect public policy.

It is one of the distinctive characteristics of the common law
that almost all decisional processes that involve the judiciary are
adjudicative. Of course, the promulgation of rules of practice in-
volves the exercise of legislative powers; the assignment of judges
to certain cases is an administrative act; proceedings in contempt
are essentially inquisitorial; reference cases are recommendatory
and certain parens patriae procedures are mediational; but the
bulk of judicial work is adjudicative. The functions of statutory
delegates are more diverse, both in theory and practice. Conse-
quently, one may ask whether the paradigm of adversarial adjudica-
tion should set the framework for rules of fair procedure in non-
adjudicative contexts.

A first step is to consider the concept of adjudication itself.
Lawyers can readily identify its major elements. Over the past
quarter-century perhaps the most sophisticated work in this area
has been that of Lon Fuller.35 He claims that adjudication is a dis-
tinctive form of social ordering whose identifying characteristic
may be found in the mode of participation granted to affected
parties. While others have suggested certain refinements to this
thesis, 36 it is indisputable that adjudication “confers on the affected
party a peculiar form of participation in the decision, that of
presenting proofs and reasoned arguments for a decision in his
favour”. 37 From this claim, three underlying norms of adjudication
may be derived:

(i)
(ii)

(iii)

the adjudicator should attend to what the parties have to say;
the adjudicator should explain his decision
in a manner
provides a substantive reply to what the parties have to say;
the decision should be strongly responsive to the parties’ proofs
and arguments in the sense that it should proceed from and be
contingent with those proofs and arguments.3 8

that

5See Fuller, Adjudication and the Rule of Law (1960) 54 Proc. Am. Soc’y
Int’l L. 1; Collective Bargaining and the Arbitrator [1963] Wis. L. Rev. 3; The
Forms and Limits of Adjudication (1978) 92 Harv. L. Rev. 353.
36E.g., Eisenberg, Participation, Responsiveness and the Consultative
Process (1978) 92 Harv. L. Rev. 410 suggests that one must also consider the
degree to which the decision-maker must respond to the arguments of
litigants.

37Fuller, The Forms and Limits of Adjudication, supra, note 35, 364.
‘i 3 Eisenberg, supra, note 36, 411-2. See also Summers, Two Types of
Substantive Reasons: the Core of a Theory of Common-law Justification
(1978) 63 Cornell L. Rev. 707.

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

One may then derive all the particularized rules associated with
judicial proceedings and relate them to the goals of ensuring
attention, explanation and strong responsiveness, which preserve
the integrity of participation in the process of adjudication. For
example, rules respecting bias and openness enhance participation;
those respecting notice ensure that such an opportunity genuinely
exists; those relating to evidence, cross-examination, counsel and
transcripts define the form and content of participation; those
touching reasons and appeals guarantee responsiveness to argu-
ment.39 Quite evidently, an understanding of the decisional process
of adjudication permits the derivation of particular rules, their
invocation in particular situations, and the appreciation of why they
are essential to procedural due process. 40

Each of these specific procedural rules has no intrinsic validity,
except with respect to the decisional paradigm which requires its

39A list of subjects normally seen as characteristic of adjudicative due
process follows. It is derived from Levinson, Elements of the Administrative
Process (1977) 26 Am. U. L. Rev. 872, 932-3, n. 336.

4OThis understanding also contributes to designing mixed and parasitic
forms of adjudication (see Fuller, The Forms and Limits of Adjudication,
supra, note 35, 405-9) as well as to distinguishing substantially similar
processes (see Eisenberg, supra, note 36, 414-23). It must be remembered that
even courts do not engage in one form of adjudication. Cf. the processes
of small claims courts, jury trials, preliminary inquiries, appeals, voir dires,
motions and bankruptcy petitions.

rules of evidence

access to adverse evidence

formal notice
remands and adjournment

(i) preliminary inquiries and discovery
(ii) preliminary determinations and settlements
(iii)
(iv)
(v) subpoena for witnesses
(vi) production of documents
(vii)
(viii) pleadings
(ix)
(x) cross-examination
(xi)
(xii) access to counsel
(xiii)
(xiv)
(xv) he who decides must hear
(xvi)
(xvii) reasons
xviii) open proceedings
(xix) public access
(xx) publication of reasons
(xxi)
(xxii) appeal

argument

interlocutory motions
impartial decision-nmaker

record and transcripts

reconsiderations

McGILL LAW JOURNAL

[Vol. 26

application. In other words, the requirement of notice or of cross-
examination is not prerequisite to procedurally fair decision-making.
While these may be absolute requirements for fair adjudication,
their invocation in another decisional process should depend on
whether they preserve the integrity of that process. Procedural
fairness across the range of administrative activity therefore does
not simply involve the application of norms appropriate to a relaxed
or imperfect form of adjudication; it requires the development of
independent paradigms and normative criteria for each distinctive
function of administration. Consequently, each of the diverse exer-
cises of state power must be characterized (at least in a rudi-
mentary fashion) according to the process of social ordering it
exemplifies.

Traditionally, for the purposes of implied due process super-
vision, administrative decision-making has been characterized as
legislative, judicial or (residually) administrative. Moreover, the
concept of “policy” has been a principal criterion for distinguishing
when natural justice would lie and when decisions would be im-
mune from procedural supervision: often a structurally adjudicative
determination would be held not to give rise to a duty to act
judicially where policy questions were significant. Such situations
were identified sometimes by reference to the decisional agency
(e.g., the Minister or the Governor-in-Council), sometimes by re-
ference to the fact that the problem to be solved involved the
manipulation of interdependent interests in order to achieve an
optimal solution (e.g., the allocation of television channels),41 and
sometimes by acknowledging that it may be almost impossible to
order the various criteria which should bear on a decision or to
identify the weight to be attached to each standard of decision
invoked (e.g., the granting of political asylum or parole) .42 What
distinguishes these situations from classical adjudication is the
absence of a requirement that decisions be strongly responsive to
arguments advanced, not the fact that participation itself is in-
appropriate; that is, there are fewer constraints placed on the factors
a decision-maker may invoke to justify his conclusions. One may
conclude therefore that certain purely administrative functions
bear close resemblance to adjudication and involve a process which
may be characterized as consultative.

But not all non-judicial statutory functions are similar. One
can identify salient differences between the functions of legislating,

41See Fuller, The Forms and Limits of Adjudication, supra, note 35, 405

et seq.

42 See Eisenberg, supra, note 36, 414 et seq.

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

landowning, purchasing supplies and services, regulating, prosecut-
ing, investigating, taxing, granting exemptions or dispensations –
differences which should lead to significant variations in the pro-
cedures by which such tasks are performed and the participation
which is afforded to affected parties. Of course, it should not be
assumed that each different function performed by a statutory
decision-maker involves a distinct procedural structure. In fact, it
has been argued persuasively that all possible structures and pro-
cesses for rational decision-making can be grouped into nine major
categories: custom, officially declared law, adjudication, voting,
managerial direction, contract, mediation, property and deliberate
resort to chance.43 Each of these, it is suggested, may have several
variants, yet each possesses distinctive characteristics, which in
turn bear on the participation to be afforded to parties affected by
decision, and the institutional duties of decision-makers. For ex-
ample, what has been characterized as the consultative process is
not a parasitic form of adjudication. It is a distinctive social-order-
ing process with procedural features that must reflect its internal
integrity. Consequently, in order to determine the precise require-
ments of procedural fairness, it is necessary to work out what
would be an appropriate paradigm for each possible decisional
process. Rather than ask what aspects of adjudicative procedures
can be grafted onto this decisional process, reviewing tribunals
must ask: what is the nature of the process here undertaken, what
mode of participation by affected parties is envisioned by such a
decisional process, and what specific procedural guidelines are
necessary to ensure the efficacy of that participation and the in-
tegrity of the process under review? Fuller has suggested some
answers to these questions in certain situations. For example, if
contract is the relevant decisional process, he believes that negotia-
tion is the appropriate mode of participation; in elections he asserts
that participation is effected by voting.44 But a better appreciation
of the importance of developing paradigms can be gained by taking
one such process and examining in detail various aspects of parti-
cipation.

43Fuller & Eisenberg, Basic Contract Law, 3d ed. (1972), 89 et seq.
44 Fuller, The Forms and Limits of Adjudication, supra, note 35, 363. The
theme is also elaborated in Fuller, Mediation: its Forms and Functions (1971)
44 S. Cal. L. Rev. 305 where he discusses mediation. He has also treated
contract: Basic Contract Law, supra, note 43; custom: Human Interaction
and the Law (1969) 13 Am. J. Juris. 1; legislation: The Morality of Law, 2d
ed. (1969); and management: Irrigation and Tyranny (1965) 17 Stan. L. Rev.
1021.

McGILL LAW JOURNAL

[Vol. 26

Fuller has considered the paradigm of mediation at great
length. He suggests that the central quality of mediation is the
“capacity to reorient the parties toward each other, not by im-
posing rules on them, but by helping them to achieve a new and
shared perception of their relation, a perception that will redirect
their attitudes and dispositions toward one another”.4
In other
words, mediation presupposes not an impersonal “act-oriented”
decisional framework, but a “person-oriented” context and an inter-
connection of interests of sufficient intensity to make collaboration
a desired goal; it also presupposes the constant readjustment of
perpectives, issues and claims. While adjudication may be seen as a
formalized and structured form of decision-making, mediation is a
comparatively loose decisional paradigm in which neither fact nor
norm is capable of definitive proof.

What is the characteristic form of participation and the appro-
priate degree of responsiveness which distinguishes mediation?
From Fuller’s analysis we might conclude that it is the indirect pre-
sentation and reception of alternative formulations of the problem
being mediated, that is, a vicarious negotiation of the norms of
decision and the applicable facts.4 6 If one accepts this characteriza-
tion, certain features of the mediational process which complement
this paradigm emerge:

(i)

(ii)

(iii)

the mediator must listen to and facilitate the presentation of
argument between parties;
the mediator should explain counter-proposals in a manner that
emphasizes commonality;
the mediator must maintain sufficient aloofness from the process
so as not to prejudge proofs and arguments notwithstanding that he
feels one party to be wrong.

Here it is apparent that participation is institutionally guaranteed
only as to its existence, not as to its content. In addition, the crite-
rion of responsiveness is unspecified: the other party need not
respond directly to counter-argument, and the mediator himself
is not restricted to presenting or explaining argument as a formal
reply to counter-argument. Finally, there are no constraints against
the mediator to justify himself because he decides nothing. The
decision, if there is one, rests on the consent of affected parties.
Hence, while the norms of adjudication emphasize the purely
formal aspects of a third-party decisional process, the norms of

45 Fuller, Mediation: its Forms and Functions, supra, note 44, 327.
46 For a slightly different formulation, see Eisenberg, Private Ordering
Through Negotiation, Dispute Settlement and Rule-Making (1976) 89 Harv.
L. Rev. 637.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

mediation highlight the substance of a consensual decisional pro-
cess.

What specific rules of fair procedure (analogous to natural
justice in adjudication) are appropriate to mediation? What rules
ensure the integrity of the participation and responsiveness ne-
cessary to mediation? Some of these may be: notice, adjournment,
assistance of counsel, private proceedings, opportunity to present
argument, access to counter-proposals, impartial mediator, equal
access to mediator, and opportunity for direct negotiation. Of
course, many of these items appear on a list of rules of fair pro-
cedure appropriate to adjudication. But, given the distinctive
character of mediation, it would be incorrect to view this process
as an adaptation of classical adjudication. While several procedural
features of mediation and adjudication may be similar, their con-
ditions of application, as well as their specific impact in concrete
cases, may vary greatly. As we have seen, it is the paradigm, not
the specific rule, which constitutes the essence of procedural fair-
ness.

As the above paragraphs have shown in a summary fashion,
the diversity of functions performed by administrative decision-
makers has two significant consequences for a theory of procedural
fairness: not only must diverse decision-making paradigms, each
possessed of its own institutional integrity, be adopted, but the
specific normative prescriptions which they imply must be evaluat-
ed against that paradigm. Adversarial adjudication is but one of
these possible models. Simply because specific procedural require-
ments which are similar to those of adjudication flow from a given
process is no reason to assume that that process should be subject
to a participation/responsiveness paradigm of adjudication or
quasi-adjudication.4 7

E. Conclusion

As courts begin to realize the potential scope of the fairness
doctrine, they tend to retreat from a full embrace of its implica-
tions. This reticence to assume an activist posture of implied super-
vision across all decision-making functions is direct evidence of

47 Eisenberg, supra, note 36, 426-32 addresses this point. It is not here
being suggested that each of the nine principles are of equal importance.
By far the most common will be third-party decision processes such as
adjudication, officially declared law and managerial direction. It is precisely
these three processes which are most similar, and hence one can appreciate
why certain fairness judgements are characterized as “watered-down” natural
justice.

McGILL LAW JOURNAL

[Vol. 26

what Loughlin calls the crisis in administrative law theory. Like
all reformations in public law, fairness has engendered a great
deal of uncertainty as courts slowly cast off the incidents, restric-
tions and formalities of the discarded theory. Certain developments
are immediately foreseeable as the theory of implied procedural
review again breaks free of the theory of jurisdiction to which
courts and writers have attempted to tie it during the past century.
In this liberating process the distinctive character of implied due
process supervision will emerge, and three important consequences
will follow. First, it will be noticed that, despite their historical
concern with matters of fair procedure, lawyers and judges operat-
ing within the adversarial system of judicial review may not be
appropriate guarantors of procedural fairness in administrative
law matters. Second, the theory of implied review will break free
of positivistic constraints, and new jurisprudential currents will
produce a shift in focus of procedural review away from a unique
concern with the rules of fair procedure towards a general concern
with the institutions of decision and the role morality of decision-
makers who must follow such rules. Finally, as more administrative
processes are challenged on applications for procedural review,
the diversity and distinctiveness of statutory functions so challeng-
ed will impress on reviewing tribunals that, if the rules of proce-
dural fairness are derived solely from a model of adversarial ad-
judication, the institutionalization of fair procedures for all func-
tions is bound to fail.

Nevertheless, a recognition that these three elements’of implied
due process review must be at the foundation of a post-Nicholson
approach to fairness will not itself resolve the problems which this
new doctrine is likely to create. Nor will it lead to a law of pro-
cedural review which meets the expectation of various proponents
of fairness. In the absence of an institutional model which will en-
hance implied procedural review, yet not impair the efficacy of
administration, the reformation initiated by Nicholson will be of
short duration.

II. An institutional model of implied procedural review

To this point in our inquiry various implications of the doctrine
of procedural fairness in administrative law have been considered.
A review of the historical and intellectual justifications for due
process supervision has demonstrated
that implied procedural
review cannot be justified by appeal to the principles of jurisdic-
tional judicial review. Tracing in detail the possible impact of this
new theory in diverse instances of delegated decision-making, and

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

comparing it with other developments in the field of due process
review, revealed the extensive scope of the doctrine. Isolation of
the
the salient features of procedural supervision permitted
derivation of attributes which any comprehensive theory of implied
is now possible to deduce
procedural review must possess. It
rudimentary elements of an institutional model of procedural
review and explore the implicit characteristics thereof.

A coherent framework for implied due process supervision of
all delegated decision-making functions must acknowledge six prin-
ciples. First, given the principal philosophical justifications for pro-
cedural review, both the structure and composition of the review-
ing agency, as well as the paradigm and norms of review, must
have a consensual basis. Second, in view of the variety of administra-
tive decision-making bodies, statutory decisional structures and
bureaucratic functions performed within these structures, a mono-
lithic structure of implied review would be inappropriate. Third,
due to the difficulties of subjecting human conduct to written
rules, procedural review must consist of an implied element.
Fourth, the underlying goals of procedural review mean that the
judicial process of adversarial adjudication is probably unsuited
to this task. Fifth, given the basic nature of all human decision-
making, procedural review should not focus exclusively on the
promulgation of a system of rules. Sixth, because administrative
functions are so diverse, procedural review can only be meaning-
ful when based on a decision-making paradigm compatible with
the process under scrutiny. In other words, the elucidation of a
model of implied procedural review which fully exploits the avenues
opened up by the Nicholson case requires nothing less then a funda-
mental re-examination of the premises of such review. In the
following pages we shall propose a model which respects these six
principles, and then review it in light of criticisms that are likely
to be directed against it.

A. The model in outline

Any complete model of implied procedural review must en-
compass four principal elements: the structure of the reviewing
agency, its personnel and its powers must be determined; the grounds
for and the manner of invoking review must be stipulated; the
procedures to be followed by the reviewing panel will require clari-
fication; and the focus and purposes of review must be elucidated.

McGILL LAW JOURNAL

[Vol. 26

1. The agency of review

The agency of review proposed here would be a multi-member
panel staffed by legally trained and non-legally trained personnel.
Each member of the panel would be chosen because he is expert
in the management of tasks normally performed within one or
more of the nine processes of social ordering identified earlier.
Hence, the panel would consist of trained and experienced adju-
dicators, mediators, electoral experts, negotiators,
legislators,
persons familiar with management, custom and statistics, and,
finally, individuals appreciating the social ordering function of
property. In other words, rather than an agency composed entirely
of those whose predominant experience and expertise lies in ad-
judication, the proposed panel would draw on a diverse group
which collectively would have experience and expertise
in all
principal processes of social ordering in modern Canadian society.
Finding those with expertise in mediation, arbitration, negotia-
tion, developing legislative guidelines or the operation of custom,
would not be a particularly onerous task; within the legal commu-
nity itself are experts in each of these processes. Moreover, ex-
perienced professionals in the design of elections or in the de-
velopment of models that ensure fair results when resort is de-
liberately had to chance are also numerous. Of course, many are not
likely to be found in the legal community but among sociologists,
mathematicians, actuaries and political scientists. An almost inex-
haustible pool of those with knowledge about management can be
drawn from business or labour. Property as an ordering device
presents greater difficulties, although philosophers, economists and
lawyers have contributed to our practical appreciation of this con-
cept.

A review panel so staffed would consist of those who have
studied the theoretical forms and limits of each of these processes
of social ordering – processes which are invoked daily in adminis-
trative decision-making throughout Canada. Moreover, each would
have substantial experience with one of these basic processes, as
a participant or decision-maker. Finally, the panel as a whole would
not be dominated by the notion that adversarial adjudication is
the epitome of procedural fairness for all situations. Hence, the
same motives which impel the assignment of particular judges to
preside over certain cases, in order to ensure the requisite degree
of expertise, can be invoked with respect to this panel at a pro-
cedural level.

In so far as other aspects of the review panel are concerned,
there is no reason to suppose that appropriate mechanisms, based

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

on current judicial practice, cannot be adopted. Provisions relating
to qualification, nomination, appointment, confirmation, tenure,
removal, salary, and training, which today promote the inde-
pendence of the judiciary, should be enacted with respect to this
tribunal. That is, much of the structure relevant to the constitution
of an appellate court may be easily adapted to the new panel. Of
course, as is the case with the judicial system, the fundamental
guarantee of justice is the selection of the most qualified candidates.

2. Grounds for and manner of invoking review

Given the vast number of procedural disputes which arise in the
normal course of administration, some mechanism for structuring
the grounds of review, and for formalizing the manner of invoking
review, must be developed. There is no reason why initiative in
seeking review should not remain in the hands of aggrieved parties.
Any inconveniences resulting from the fact that an administrative
decision might be open to review on implied procedural grounds48
are more than off-set by the violence to common law principles of
legality that would result from removing carriage of a dispute from
litigants. Moreover, the courts have developed a sophisticated array
of doctrines to control abuses of the judicial review process.
Theories of standing, ripeness, exhaustion, primary jurisdiction,
laches, mootness, and the like, can still be invoked in order to
control frivolous litigation. 9

Not only should initiative in seeking review be left to aggrieved
parties,, but so should the precise make-up of the forum of review.
Given the unwieldiness of multi-member tribunals, it would be
unrealistic to structure the process so that an expert in each of
the principal forms of social ordering participates in every applica-
tion for review. Rather, each party should be permitted to select
one member of the reviewing panel.50 In other words, each disputant

48Though the question of privative clauses is not addressed in this essay,
the author sees no reason for excluding access to the review panel. Many of
(expertise, efficiency,
the traditional
finality) are simply inapplicable to review by the proposed tribunal.

justifications for privative clauses

49 On standing, see Vining, supra, note 17, ch. 10; on ripeness, see his article,
Direct Judicial Review and the Doctrine of Ripeness in Administrative Law
(1971) 69 Mich. L. Rev. 1443.

GOIt is, of course, important to determine who the parties to a dispute
are. For example, in certification procedures before a Labour Board are the
parties, say, the employer and the Board (or the union and the Board) or
the employer and the union? In many cases the precise issue over which
unfairness is being alleged will be that of who are properly parties. No
attempt will be made to resolve this question here, although, presumably,
the principles currently invoked in review proceedings may reflect the
difficulties noted with respect to other aspects of procedural review.

McGILL LAW JOURNAL

[Vol. 26

would be entitled to require that one member of the tribunal have
expertise in a decisional process which the applicant selects. This
proposals has two elements which are immediately apparent: first,
review would be accomplished by two-man panels, and, second,
while the specific members of each panel would be assigned by the
secretariat, each party would be permitted to select the decisional
paradigm from which that member is drawn. Many advantages
for the development of a detailed law of procedural review flow
from these characteristics. A two-man format compels the unani-
mous disposition of review applicationsY1 It also makes explicit
the tacit accommodations which now go for the most part un-
noticed in appellate decision-making. Finally, two-man panels are
eminently suitable for mediation of competing claims. Since the
entire framework of procedural review under this proposed model
is intended to be non-adversarial, a three-man panel based on the
labour arbitration model would not be an appropriate institutional
form

5 2
_.

The second aspect of the proposal, selection by each party of
the paradigm of review, also offers several advantages. This
mechanism permits parties to advance competing perspectives as
to the nature of the decisional process. Rather than constraining the
participation by affected parties to argument about the applicability
of specific rules, this model also permits them to debate the frame-
work of decision; this framework is, of course, a principal deter-
minant of the procedural rules thought to be appropriate
Per-
mitting such choice also compels each party to justify why a
particular decisional model, or variant thereof, should be preferred.
The principal review question becomes explicit, not tacit; one no
longer argues for a quasi-judicial function as a means to an end,
but on the contrary, the paradigm sought becomes one of the ends
of a review proceeding. It is also apparent that paradigm selection
by affected parties encourages the sophistication of generalized
models of administrative processes for application to specific cases.
A more subtle law of procedural fairness will result from tempering
decisional paradigms by permutations of panel membership. Rather
than a model that compels a single panel, the court, to choose
between adjudication or non-adjudication,
the proposal would

51 See Llewellyn, The Common Law Tradition (1960), 316-7.
52 See subsection 3, infra, for a discussion of this point. On the adjudicative
three-man panels, see Fuller, Collective Bargaining and the

nature of
Arbitrator, supra, note 35, 36-42.

53 On the role of paradigms in thought, see Polanyi, Personal Knowledge

(1958), chs. 5-7.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

permit as many as forty-five different panels to choose one of nine
paradigms; rather than compelling parties to argue a given per-
spective before a panel whose presuppositions are only adjudicative,
this model encourages the presentation of problems before a panel,
at least one member of which is known to have insight and expertise
in the decisional process advocated by each party.

With respect to grounds for review, the model contemplates
certain deviations from established and recently proposed models.
Traditionally, there have been two aspects of procedural review
in administrative law, review for procedural ultra vires and implied
procedural review. Modem proposals include these two grounds in
addition to review for procedural unfairness and for certain abuses
of discretion of a procedural nature.5 4 However, the institutional
model of review suggested here does not envision all “procedural”
is established to consider only implied procedural
grounds. It
matters, natural justice, fairness and implied limits on discretionary
procedures, which operate where legislation is silent or obscure.
Formal ultra vires control of administrative procedures would re-
main with the courts. Not only would parties to a dispute have the
power to choose the nature of the decisional paradigm against which
their claim would be evaluated, but they would also have the power,
in certain cases, to elect whether to make a statutory procedural
claim or an implied procedural claim.

3. The procedures of review

An important corollary of permitting affected parties to parti-
cipate in the selection of the grounds of review and the composition
of the review panel is their direct involvement in the development
of the reviewing agency’s decision. In normal judicial review applica-
tions, which, by the fact that they are brought before courts, must
proceed on adjudicative assumptions, complaining parties attempt
to invoke a normative standard, present facts demonstrating the
applicability of the standard, and ask the court to take a censorial
decision on whether the standard was attained. The judicial deci-
sion is theoretically that of the judge alone and is based on exist-
ing standards. However, under the proposed model the procedures
of review are non-adjudicative. Since one is disputing implied pro-
cedural norms, it is clear that these cannot be antecedent in the
sense required by the adjudicative model; and since the facts in
issue are fluid and not determinative of the merits, it is difficult

54See Report of the Commonwealth Administrative Review Committee

(1971); Mullan, The Federal Court Act (1978), 61-74.

McGILL LAW JOURNAL

[Vol. 26

to see how they could be evaluated by a judge. In such circumstan-
ces, a mediational approach to decision must be followed.;
. The evaluation of procedural impropriety on implied grounds,
therefore, cannot be based on considerations relating to the require-
ments of rules: within the confines of statutory powers the deter-
mining element cannot be an authoritarian, externally-imposed
vision of due process, but must be found in the negotiated consent
of those subject to it. It has already been shown that in the absence
of procedural standards which flow from legislation, the compo-
nents of fair procedure can only be developed by the parties them-
selves. A model for reviewing implied procedural requirements
should permit parties to engage in a reciprocal adjustment of their
procedural expectations. The proposed structure achieves this goal
at two levels. First, parties are required through the nomination
of one member of the panel to decide what procedural paradigm
is most appropriate to the process being reviewed. Second, per-
mitting the review panel to participate actively in working out the
elements of fair procedure and to share the decisional task with
parties will encourage compromise, accommodation and flexibility
in expectations.

A mediational approach to review also enhances acceptance, by
both parties, of the solution proposed. They are given the oppor-
tunity to shape the issue. Both are encouraged to advance argu-
ments based on the constraints under which they work, such as
time, cost, manpower and case-load. Both are permitted to suggest
modifications to proposals of the review panel in order to make the
disposition more satisfactory to their individual needs. Finally, a
mediational theory of implied procedural review is beneficial for
administrative law generally: solutions achieved are likely to be
more appropriate because they are directed to specific problems
of specific agencies, not to generalizations based on some assumed
equivalence of processes across a variety of tribunals and powers.
In addition, as the French have demonstrated in many areas of
review, mediation removes the censorial focus of decisions that
take statutory decision-makers to task, thereby encouraging com-
pliance with solutions proposed 6

55See Northrop, The Epistemology of Legal Judgments (1962) Nw. U. L.
Rev. 732; Neef & Nagel, The Adversary Nature of the American Legal System
from a Historical Perspective (1974) 20 N.Y.L.F. 123, 154-63.

56See Brown & Garner, French Administrative Law, 2d ed.

(1973); cf.
Angus, The Individual and the Bureaucrocy: Judicial Review – Do We Need
It? (1974) 20 McGill LJ. 177.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

4. The focus of review

Because implied procedural review is particularly concerned
with institutional failings, rather than with individual deviations
from the jurisdiction contemplated by an empowering statute, the
focus of review must be essentially prospective.5 In other words,
the traditional concept of a bipolar, retrospective and self-contained
model of review is not appropriate in these situations. Review must
not be simply reproachful: it must be educational. Those who find
their determinations subject to review on procedural grounds may
be individuals at any level of the bureaucracy; often, it may be
an entire process of decision and appeal that is challenged. In such
circumstances, review on procedural grounds can be considered
successful only if those subject to it actually modify procedures
so as to institute fair decisional procedures.

Much recent writing about judicial review does not explicitly
acknowledge this factor. In a recent study, Mullan concludes that
a reviewing court should have:

(a) a power to set aside
(b) a power to refer back for reconsideration
(c) a power to prevent an authority from proceeding further
(d) a power to compel the making of a decision or order to perform
a legal duty, including the following of correct procedures in making
a decision

(e) a power to issue a declaration of right, including a declaration with
respect to the possibilities in (a) to (d) and referable to all the
codified grounds of review.58

Each of. these powers, however, focuses on the traditional adver-
sarial model of review and does not allow for the peculiar charac-
teristics of implied procedural supervision.

Adopting what Chayes calls the “public law model” of adjudica-
tion,59 the focus of review and the powers exercisable should include
first the usual power to correct and remit. Second, the review panel
must have the power to supervise the implementation of its me-
diated decrees. Much like judicial competence in injunctive pro-
ceedings in the United States, which presupposes a continuing
supervision of the terms of the decree, 60 the review panel must
have all necessary power to ensure the efficacy of its order. Third,
jurisdiction to investigate and recommend with respect to matters
beyond those remitted to it should also be granted. If a particular

L. Rev. 1281, 1281-4.

57 Chayes, The Role of the Judge in Public Law Litigation (1976) 86 Harv.
58 Mullan, supra, note 54, 71.
59 See Chayes, supra, note 57.
60 See Fiss, The Civil Rights Injunction (1978), passim.

McGILL LAW JOURNAL

[‘Vol. 26

difficulty appears to be symptomatic of a larger problem, the panel
should be permitted, on its own initiative, to study the larger
problem. Implied procedural review acknowledges that the disputes
presented are neither self-contained episodes nor entirely party-con-
trolled, and should not be considered as affecting only private
rights.6’ Finally, given the significance of role morality in evaluating
questions of procedural propriety, the panel must have the power
to recommend educational programs that will redress failures in
institutional training or practice.62 If due process review is to
enhance the development, maintenance and application of sophis-
ticated procedures for the exercise of delegated powers, its en-
franchising, exemplary and educational functions become para-
mount.6
5. Summary

The model proposed is based on the premise that, within the
confines of statutory rules, what constitutes fair procedure is a
matter of agreement and must rest on a notion of consent. It
assumes that, although the specific contents of a fair procedure are
variable, this notion will always involve a permutation of basic
social-ordering mechanisms. Hence, while adjudication alone is a
reductionist paradigm for procedural fairness, there are a limited
number of alternatives which, if invoked, would not purchase
uniformity at the expense of subtlety. The model also rests on the
belief that an adversarial procedure militates against effective
development of fair procedural paradigms, and that a mediational
theory of review proceedings is more consistent with what is emerg-
ing as the public-law model of litigation. 4 Again, it presupposes
that prospective review, comprising educational, supervisory and
preventative elements should be the goal of procedural supervision.
It also requires that parties to an application adopt a posture of
other-directedness. Finally, the model assumes that the review
panel would be composed of persons experienced in and critical
of the forms and limits of various social institutions. The same
level of insight which judges express about adjudication must be
expected of other panel members in their areas of expertise.

Of course, this model reflects a substantial departure from
traditional beliefs about judicial review of administrative action.

61 See Vining, supra, note 17, chs. 9-11.
6 See Wilson, supra, note 14, 125-39.
63See Ryle, “Knowing How and Knowing That” in The Concept of Mind
64But see Thibault & Walker, Procedural Justice: A Psychological Analysis

(1949), 27-49; Holt, How Children Fail (1964), 104-7.

(1975).

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

Its premises may appear vulnerable to attack by defenders of the
Diceyan concept of the rule of law.6 Yet the difficulties experienced
by courts in applying the fairness doctrine should be taken as
evidence that administrative law in Canada is on the verge of a
fundamental reorientation in which many new proposals for implied
review are apt to be considered. Nevertheless, it is certain that
this model will be subject to various challenges; to the extent these
may be anticipated, they must be addressed.

B. Possible objections to the model

Earlier sections of this essay have been devoted to establishing
the validity of the assumptions sustaining the model outlined above.
Yet, in themselves, these presuppositions do not justify the specific
proposal presented. Moreover, the utility of the model must be
argued in both theoretical and practical terms. Since any statutory
reform involves substantial change-over costs and engenders resist-
ance from those who must make the ‘system work, it must be
shown that pragmatic criticisms of the proposal are unfounded.
In principle, two basic kinds of counter-argument may be ad-
vanced, those relating to fundamental constitutional issues and
those relating to difficulties of implementation.

1. Constitutional problems

lawyers will

immediately see

Canadian administrative

two
major problems with the proposed model. It will be suggested that
a provincially created review panel would be unconstitutional- by
virtue of section 96 of the British North America Act, 186766 if its
members were provincially appointed;6 or, even if the agency were
constitutional, its decisions could not be insulated from judicial
review, a needed protection if the panel is to make legally con-
clusive determinations. Either of these objections, if valid, would
severely compromise the proposal as a model for implied pro-
cedural review in Canada.

Recent jurisprudence of the Supreme Court of Canada on the
scope of section 96 of the B.N.A. Act gives cause for some concern as
to constitutionality. While decisions such as Tomko v. Labour

65 See Arthurs, supra, note 4.
6630 & 31 Vict., c. 3 (U.K.) as am.
67The problem of s. 96 and judicial review was also addressed by the
McRuer Royal Commission Inquiry Into Civil Rights (1968-70), 1465-6, which
considered the constitutional issue an insurmountable obstacle to the adoption
of a Conseil d’Etat model. But see Willis, supra, note 28.

McGILL LAW JOURNAL

(Vol. 26

Relations Board (N.S.) , 6 Jones v. Board of Trustees of Edmonton
Catholic School District No. 769 and City of Mississauga v. The
Regional Municipality of Peel” seem to suggest a more liberal
approach to provincial attempts to vest tribunals with a panoply
of powers, the important judgement in Farrah v. Attorney-General
of the Province of Quebec7′ appears to reflect an opposite trend.
In the Jones case, the Court held that the mere “fact that a pro-
vincial tribunal is required to exercise a judicial function does not,
of itself, involve a conflict with s. 96. ”2 Moreover, in Tomko it
stated that “it is not the detached jurisdiction or power alone that
is to be considered but rather its setting in the institutional arrange-
ments in which it appears and is exercisable under the provincial
legislation.”73 In other words, a provincial government may establish
a body which performs section 96 functions if these are closely in-
tegrated with, incidental to and necessary for the carrying out of
valid provincial purposes. But, of course, a review panel of the
nature suggested is not part of an integrated institutional arrange-
ment touching a bona fide provincial power; it is a quasi-appellate
body exercising a general supervisory jurisdiction over the form,
not the substance, of administrative decision.

In this context, both Jones and Tomko are of less relevance than
Farrah, a judgement which directly involved the constitutionality
of a quasi-appellate review body. The import of this latter case is
particularly difficult to ascertain, however, because two distinct
lines of reasoning won support in the Supreme Court. If one
adopts the reasoning of Laskin C.J., it would seem that whenever a
province attempts to devolve a purely judicial function on a tri-
bunal, divorced from a substantive validating context, section 96
powers are being usurped. The Chief Justice stated:

The difficulty in the present case is that the Transport Tribunal has not
been constituted as simply a tribunal of appeal within the administrative
structure of the Transport Act, empowered to hear appeals from deci-
sions of the Transport Commission and to decide questions of law in the
course of a general appellate authority. It is constituted as an appeal
agency which, under s. 58(a), is primarily concerned with questions of
law.74

68 [1977] 1 S.C.R. 112.
69 [1977] 2 S.C.R. 872.
70 [1979] 2 S.C.R. 244.
71 [1978] 2 S.C.R. 638. See the comment by Ppin, (1978) 38 R. du B. 818;
see also Lemieux, Supervisory Judicial Control of Federal and Provincial
Public Authorities in Quebec (1979) 17 Osgoode Hall LJ. 133, 146-8.

72 Supra,. note 69, 893.
7 3 Supra, note 68, 120.
T4 Supra, note 71, 6434.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

From the perspective of the Chief Justice, if questions of implied
procedural review determined by the proposed panel are charac-
terized as questions of law to be decided by an appellate tribunal,
the model may run afoul of section 96 of the B.N.A. Act.

On the other hand, according to Pratte J., the unconstitutionality
of the Transport Tribunal at issue in Farrah arose from the fact
that it exercises part of the supervisory jurisdiction over questions
of law, within or outside jurisdiction, vested exclusively in superior
courts. He suggested that non-jurisdictional review may be sup-
pressed by an appropriately worded privative clause, but he held
that it cannot be transferred to a non-section 96 court:

The net combined effect of s. 58(a) and of the privative clause (ss. 24
and 72 of the Transport Act) is therefore to transfer to the Transport
Tribunal part of the inherent supervisory authority that was vested in
the Superior Court at the time of Confederation.75

Adopting this reasoning, it would seem that, if implied procedural
review is characterized as part of the inherent jurisdiction of the
superior court at Confederation, then it cannot be transferred to a
non-section 96 body.

How does the proposed review panel square with the reasons
for judgement in Farrah? For the Chief Justice, the criterion to be
satisfied is whether implied due process questions are questions of
law. Throughout his judgement Laskin C.J. refers only to questions
of. jurisdiction or of statutory interpretation as questions of law.
In fact, his insistence on the importance of the Transport Tribunal’s
power to “confirm, vary or quash” a decision on the merits suggests
that only statutory provisions are to be considered as law76 Hence,
while questions of interpretation arising from statutory procedural
provisions may be questions of law, his judgement in Farrah does
not directly suggest that issues of implied review constitute
questions of law. In other Supreme Court decisions there are sug-
gestions that such questions are not questions of law.T7 Never-
theless, it is doubtful whether the Court would treat implied review,
even in a mediational setting, as a non-section 96 function.7

8

In so far as the judgement of Pratte J. is concerned, a different
problem arises, namely, was implied procedural review inherent
in the powers of a superior court at Confederation? Certainly this

15 Ibid., 656.
7G Ibid., 646. This, of course, conflicts with his dissenting opinion in Re

Martineau (No. 1) [1978] 1 S.C.R. 118.

77Re Martineau (No. 1), ibid.; Harelkin v. University of Saskatchewan
78 See particularly the recent Ontario Court of Appeal decision Reference

(1979) 96 D.L.R. (3d) 14 (S.C.C.).

Re Residential Tenancies Act (1979) 26 O.R. (2d) 609, 632-41.

McGILL LAW JOURNAL

[Vol. 26

could not have been the case with respect to any non-judicial power,
although a more subtle response is necessary with respect to judicial
powers. Since Parliament could pre-empt the implied review power
of King’s Bench by enacting procedural provisions, it is hard to
consider this power as a necessary attribute of a superior court.
Traditionally the sine qua non of procedural supervision was a
direction from Parliament to act judicially. This could take the form
of a right to a hearing, a right to counsel, a right to reasons, or to
some other express threshold requirement. Although the content
of implied supervision was generally free of legislative control, its
existence was contingent on a legislative mandate. Again, however,
it is unclear whether these factors are sufficient to indicate that
procedural review was not inherent in the sense intended by Mr
Justice Pratte.

Thus, the effect of section 96 on the proposed model is far
from certain.7 9 It would seem that as long as the review panel
neither decides substantive questions of jurisdiction or law, nor
decides questions of procedural ultra vires, it may not be found to
be exercising a section 96 function; hence, its members may be
validly appointed by a province. On the assumption that the pro-
posed panel would be considered a section 96 court, the model
would nevertheless not fail in so far as federal jurisdiction is
concerned, nor would it fail at the provincial level if Law Society
statutes were amended so as to permit non-legally trained indi-
viduals to be called to the Bar, and if co-operation between the
federal and provincial governments as to appointment of these
individuals could be assured.

The second constitutional consideration which may scuttle the
proposed model relates to whether its decisions may be impressed
with the stamp of finality. That is, is it possible to insulate both
the decisions of primary tribunals and the decisions of the review
panel from ordinary judicial supervision? For, if not, the very
problems of adversariness and adjudication to be overcome by
creation of such a model will simply manifest themselves one step
later in the decisional process.

79 Prediction in this area is almost impossible. In a recent decision, Procureur
gdndral du Qudbec v. Crevier [1979] C.A. 333, a 2-1 decision purporting to
apply Farrah, the Quebec Court of Appeal found the Tribunal des professions
not to be exercising a s. 96 function, even though its constitution, and many
of its powers, are almost identical to those of the Transport Tribunal which
were at issue in Farrah. Moreover, it should be noted that for Pratte J. the
existence of a privative clause (which is part of this proposal as well) rein-
forced his view that the Transport Tribunal was exercising s. 96 functions.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

With respect to the determinations of primary decision-makers,
the problem of insulation from implied procedural control is not of
great moment. It has long been acknowledged that implied pro-
cedural control plays a suppletive role and hence may be ousted
by appropriate statutory language.80 Moreover, recent authority
suggests that express prohibitory clauses,8′ as well as the tacit
direction resulting from adoption of sophisticated procedural
codes 2 may be effective to preclude judicial review on implied due
process grounds. Furthermore, primary jurisdiction and exhaus-
tion clauses stipulated in favour of second-level administrative
tribunals have been judged effective,8 3 and hence might be used
to reinforce this protection from immediate judicial review. It
follows, therefore, that an appropriately worded privative clause,
while not necessarily excluding supervision on grounds of pro-
cedural ultra vires, may effectively insulate the processes of primary
implied procedural
decision-makers
grounds.

review on

judicial

from

Protection of the determinations of the review panel is likely
to be more difficult. If the tribunal is constituted as a section 96
superior court, this problem would not arise. However, if the
tribunal is considered either as a section 96 non-superior court or
as an ordinary administrative agency, it is obvious that any of its
decisions will be taken in the exercise of a limited statutory juris-
diction. In such cases, it seems unlikely that jurisdictional review
by a superior court could ever be fully precluded, 4 although infra-
jurisdictional errors may be effectively insulated from review.
One may conclude therefore that, on any hypothesis, the super-
visory power of superior courts over errors of law within juris-
diction and implied due process failings of the review panel itself
may be precluded; only formal jurisdictional questions would be
left open to review.

80 See de Smith, Judicial Review of Administrative Action, 3d ed. (1973), 161

et seq.; Wade, Administrative Law, 4th ed. (1978), 453-6.

81 Re Downing & Graydon, supra, note 1. For a case where implied review

was held to be ousted by contract see Re Proctor, supra, note 1.

82 See, e.g., Furnell v. Whangarei High School Board [1973] A.C. 660 (P.C.);

Wiseman v. Borneman [1971] A.C. 297 (H.L.).

8 3 See, e.g., Hnatchuk v. Workmen’s Compensation Board [1972] 3 W.W.R.

395 (Sask. C.A.).

84 But see Pringle v. Fraser [1972] S.C.R. 821 and Re Woodward Estate
[1973] S.C.R. 120 for specialized privative provisions held effective even as
against jurisdictional errors. See also Hogg, Is Judicial Review of Administra-
tive Action Guaranteed by the B.N.A. Act? (1976) 54 Can. Bar Rev. 716; and
Lemieux, supra, note 71, 148-52.

McGILL LAW JOURNAL

[Vol. 26

Would this limited review impair the operation of the proposed
panel?8 5 There are three reasons for concluding that it would not.
In the first place, given the consensual nature of proceedings
before the review tribunal, it is unlikely that its determinations
would lead to many applications for judicial review. This would be
especially so in non-judicial situations, where courts have con-
tinued to show a reluctance to find procedural unfairness. Second,
since the panel would not make determinations on the merits of
a dispute, and since its recommendations will always fall within the
interstices of statutory procedures, it is unlikely that formal juris-
dictional errors relating to absence, excess or declining of juris-
diction would arise. Moreover, by their very nature, the jurisdic-
tion and powers of the tribunal would be cast in subjective,
general and wide language; this itself should reduce the scope of
judicial intervention.86 Finally, in view of judicial treatment of
analogous powers in other contexts,87 a deferential approach to
determinations of the review panel is not unlikely.

Of the two constitutional objections which critics of the model
may advance, the section 96 question is more serious. Problems
with respect to privative clauses may be minimized or overcome
and, since the concept of judicial review itself is not threatened, one
cannot foresee a restrictive approach to the jurisdiction of the
review panel. The section 96 issue may, however, significantly im-
pede implementation of the scheme. Nevertheless, this obstacle
does not arise with respect to any federal tribunal and, as illus-
trated, co-operation between the federal and provincial govern.
ments can ensure the proposal’s success even at the provincial
level.
2. Pragmatic criticisms of the proposed model

The two criticisms of a constitutional nature just reviewed can
to the model. Of much

be considered as technical reproaches

85The word “limited”

is used advisedly. Although decisions such as
Metropolitan Life Insurance Co. v. Int’l Union of Operating Engineers, supra,
note 21, seem to suggest an extensive inventory of jurisdictional errors capable
of sustaining review in the face of a privative clause, judicial activism on
grounds of abuse of discretion seems to have been on the wane during the
past few years, See, e.g., C.U.P.E. Local 963 v. N.B. Liquor Commission [1979]
2 S.C.R. 227. See also Grey, Discretion in Administrative Law (1979) 17
Osgoode Hall L.. 107; Molot, Administrative Discretion and Current Judicial
Activism (1979) 11 Ott. L. Rev. 337.

86 For a review of recent Canadian jurisprudence on these indirect privative

provisions see Mullan, Administrative Law, 2d ed. (1979), 222-229.

aTE.g, the Rules Committee under The Statutory Powers Procedure Act,

S.O. 1971, c. 47.

1980l

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

greater concern are substantive, operational critiques. Exploring
these will more thoroughly elucidate the proposal. There are five
(i) the pro-
types of pragmatic criticism which may be advanced:
posal is cumbersome and unwieldy; (ii) lawyers are unlikely to
(iii) disputes between
develop confidence in non-judicial review;
citizen and state cannot be mediated since the parties have unequal
bargaining power; (iv) establishing an additional review tribunal
(v) recruitment of
will aggravate jurisdictional complications;
tribunal personnel will be extremely difficult. Many of these objec-
tions are corollaries to criticisms advanced against the assumptions
argued earlier. Nevertheless, each can be answered on a purely
pragmatic basis.

Unwieldiness might be alleged on one of two grounds: either
the volume of cases will prevent the panel from performing its
suggested role, or the number of panel members, and the variety
of their backgrounds, will inhibit development of a coherent juris-
prudence. The first argument is unfounded, for there is no reason
to suppose that the creation of a new review panel will lead to
increased applications for judicial review.8 8 Moreover, certain
features of the proposal are expressly designed to facilitate the
the review tribunal will deal only with
disposition of cases:
implied due process applications; it will be able to sit in several
two-man panels at the same time; and because it will not be
making determinations on the merits similar cases often could be
heard together. This last point would be most applicable to mass-
participation social insurance schemes such as Medicare, Unemploy-
ment Insurance, Canada Pension Plan, Workers’ Compensation, and
Old Age Security, whenever parties opt for similar panel structures.
A final reason for doubting this critique is that the panel could
employ traditional mechanisms to regulate its work. Doctrines such
as mootness, ripeness, exhaustion, alternative remedy, primary juris-
diction and standing can be used, not to frustrate internal agency
review, but constructively to improve control of administrative
procedures.8 9 Therefore, it is unlikely that the proposal will en-
gender so many applications for procedural review that its purposes
would be frustrated. Yet, the role proposed for the new tribunal

88See the statistics compiled on the Divisional Court (Ontario) by The
Report of the Attorney-General’s Committee on the Appellate Jurisdiction
of the Supreme Court of Ontario (1977), 7-11. This report concludes that
increased litigation results principally from factors other than the structure
of dispute-settling institutions.

89 See the model of the court function proposed by Stone in “Existential
Humanism and the Law”, reproduced in Existential Humanistic Psychology
(1971).

McGILL LAW JOURNAL

[Vol. 26

will mean that each case it hears will require a longer time to
settle; for it is an acknowledged benefit of classical adjudication
0 The use of technological
that it expedites dispute settlement
devices, clerks, research assistants and the like will be necessary
to permit the panel to perform its additional functions. Ultimately,
however, the management of a burdensome case-load can be ac-
complished only by appointing more members to the tribunal. In
an era of excessive recourse to institutional mechanisms of dispute-
settlement such a necessity cannot be overlooked.01

This solution leads to a discussion of the second aspect of the
unwieldiness criticism, that is, the observation that a large, multi-
member tribunal inevitably becomes factious and unable to main-
tain a coherent review posture. This objection is particularly apt
in the case of adjudicative panels, where ideas such as objectivity,
stare decisis and certainty are cherished. Yet these have been reveal-
ed as illusions, even in the case of purely adjudicative tribunals.
Given the underlying structure of the proposed tribunal, these
ideas are simply inapplicable: decisions of the tribunal are me-
diated; each process of decision is acknowledged as unique; there
is no pre-existing law to be applied; the administrative agency
under review will ultimately have consented to the solution pro-
posed; presumably it will eventually institute fair decisional pro-
cess; and, lastly, because the goals of review are not exclusively
rule-oriented, it is unlikely that similar cases
(as similarity is
understood in the doctrine of precedent) will arise. Hence, the
objection of unwieldiness, as directed
to the tribunal’s juris-
prudence, can be met.

A second criticism of the model may be that lawyers will be
unable to adjust to non-judicial review. This objection also involves
various themes. It could be claimed that lawyers do not trust any
decisional body other than a court. While this may be generally
true, there are numerous situations where, due to the complexity
of the problems involved or the need for expertise, non-judicial
decision-making is preferred by lawyers: commercial arbitration,
grievance proceedings, and management by a trustee in bankruptcy
are only three commonplace examples. If members of the review
panel are carefully selected, and if their decisions are subsequently
proven apposite, this structure will also attract the commitment
of the Bar.

90 See Llewellyn, supra, note 51, 19-50.
91 See Barton, Behind the Legal Explosion (1975) 27 Stan. L. Rev. 567;
Carrington, Crowded Dockets and the Court of Appeals (1968-69) 82 Harv.
L. Rev. 542.

1980]

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

But the adjustment by lawyers must also be to a process which
is non-adjudicative. Because current legal practice occurs almost
exclusively before adjudicative panels, this may prove more difficult.
Nevertheless, only a small percentage of litigation lawyers are
involved in judicial review. Those who are engaged in seeking
review of administrative action have already made one adjustment
away from the private-law orientation of ordinary practice. Con-
sequently, for those who will handle the bulk of the cases before
the new tribunal, a further adjustment should not be unmanage-
able. Yet the extent to which new models and procedures of review
can be successful, in view of the acknowledged conservatism of
the legal profession, is of crucial importance, and the difficulties
in promoting the review proposal should not be underestimated. 92
A non-adjudicative review panel is also likely to incur criticism
that disputes between citizen and state cannot be mediated. This
objection is, of course, principally ideological and can be traced
to Dicey’s misrepresentation of French droit administratifY93 Dicey
felt that administrative justice would prevail only if relations
between citizen and state could be converted into a lis inter partes
capable of adjudication before the “ordinary courts”. This belief
rests, however, on two questionable assumptions: first, that “or-
dinary courts” equalize parties and, second, the state possesses
superior power in arguing procedural points. To the uninitiated
it may appear that procedures before ordinary courts guarantee
equal justice for all, yet most lawyers recognize that the traditional
model of adjudication enhances the power of the economically
stronger party. Factors such as quality of counsel, availability of
costly dilatory measures, extensive discovery, possibility of strategic
appeals and the like, can only be seen as the prerogative of the
wealthier party.94 Dicey’s first assumption that the procedures of
adjudication are value-free cannot be sustained on available
evidence.

As for Dicey’s conclusion that the state possesses superior
power in procedural matters, one must ask whether a mediational
model allows the same abuses as adjudication. May it not be the
case that the very conversion of public-law disputes to a format

92For a more pessimistic view of the potential for reform see Mullan,
Reform of Judicial Review – Method or Madness? (1975) 6 Fed. L. Rev. 340;
Mullan, supra, note 54.

93The principal works are Dicey, Introduction to the Study of the Law
of the Constitution (1885), and The Development of Administrative Law in
England (1915) 31 L.Q.R. 148.

94 See Symposium on Judicial Administration (1975) 3 Hofstra L. Rev. 647.

McGILL LAW JOURNAL

[Vol. 26

enhances

compatible with private-law presuppositions
state
power? 5 Most of the abuses of adjudication are technical, dilatory
and not directed to the merits of a dispute. In addition, adjudica-
tion assumes an umpiral view of the decision-maker which restricts
his role to a more passive supervision of the review process. Finally,
the zero-sum orientation of adversarial adjudication fosters pro-
cedural wrangling. By contrast, a review process which suppresses
and penalizes mutual harassment and which rests on the consent
of participants cannot enhance the ascendancy of the state. Ex-
perience elsewhere seems to suggest that a mediational procedure
may actually limit the power of the administration to argue pro-
cedural mattersf 6 Consequently, pragmatic objections to a me-
diational procedure for implied due process review also do not
seem justified.

A fourth criticism of the proposal arises because supervision
on formal or ultra vires grounds remains vested in the courts. The
objection is simply that creation of a competing review jurisdiction
will not prevent concerns similar to those which led to this proposal
from manifesting themselves in ordinary judicial review applica-
tions. It is true that the formalistic exercise of classifying func-
tions will continue to prevail in review proceedings before the
courts; but this is simply to recognize that the problems heretofore
resolved by reference to classification (availability of certiorari,
right to reconsider, sub-delegation, immunity from tort liability
and so forth) will continue to exist. If the negative features of
classification can be avoided in one aspect of review proceedings
by adoption of a new model, the fact that characterization apparent-
ly remains necessary in others should not preclude amendment.

A further aspect of the argument that a procedural review panel
should not be established is that it creates a conflict of review
jurisdictions, namely, between ordinary judicial review and pro-
cedural review. Apart from the general point that multiple juris-
dictions are always difficult to manage in practice, 91 it may be
suggested that problems of primary jurisdiction, exhaustion and
conflicting determinations will be insuperable. Yet a rule such as
“formal jurisdictional questions resulting from the interpretation
of enabling statutes” could well be established as the criterion of
differentiation. Currently, the Bar has little trouble deciding when
the issue to be argued is one of natural justice rather than pro-

9fiFor an argument that the law of standing has had precisely this effect

see Vining, supra, note 17, passim.

98See generally Brown & Garner, supra, note 56.
97See Evans’s unpublished comment on a paper by Mullan at a con-

ference held at Osgoode Hall Law School on 18 February 1977.

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

cedural ultra vires; there is no reason to suspect that creation of
a new panel will suddenly deprive it of this insight.98

A final criticism is that there are simply not enough competent
individuals to staff the review tribunal. This point may be quickly
dispatched: even in the most pessimistic hypothesis, the panel
need have no more than twenty members. Of these one would
expect about half to be selected because of expertise in adjudica-
tion, with perhaps one or two members representing other deci-
sional paradigms. Finding and recruiting such a small number of
tribunal members should not be a difficult task, as the Bar itself
provides a large pool of candidates for many of the required spe-
cialities. Of course, it is necessary to train the panel for its task,
to provide usual guarantees of independence, to offer adequate
remuneration, to organize an efficient secretariat and to develop
internal procedures and policies. Yet these are technical matters
in analogous contexts. 9
which have not proved unmanageable
Consequently, of the pragmatic objections which may be raised
against implementing this model, only one, the readjustment of the
profession to non-judicial and non-adjudicative procedural review,
is significant. Yet, for the reasons given above, any resistance to
the model may be overcome, and a genuine commitment to the new
panel generated.

3. Summary

Briefly, both constitutional and pragmatic objections to the
model proposed can, for the most part, be answered. Section 96
problems are capable of being surmounted at the provincial level,
and they do not arise in the federal sphere; the efficacy of privative
clauses is a minor issue. Pragmatic criticisms concerning efficiency,
staffing, attitude, jurisdictional conflict and the attitude of the Bar
are also not conclusive. Hence, while the model’s assumptions may
be challenged, other objections to a procedural review tribunal are
not insurmountable.

C. Conclusion

The model suggested for institutionalizing procedural review of
administrative decisions ultimately rests on beliefs about the nature

98 Nevertheless, the continuing problem of defining the jurisdiction of the
Ontario Divisional Court is evidence of the difficulty of partial reform.
See Evans, Judicial Review in Ontario –
Some Problems of Pouring Old
Wine into New Bottles (1977) 55 Can. Bar Rev. 148.

99 See, e.g., Issalys, The Professions Tribunal and the Control of Ethical

Conduct among Professionals (1978) 24 McGill L.J 588.

McGILL LAW JOURNAL

[Vol. 26

of implied procedural fairness and the function of supervision on
that basis. The establishment of a process of conciliation, by per-
sons expert in the forms of various mechanisms for ordering human
affairs, undertaken within decisional paradigms chosen by the
parties, and directed to developing and implementing better ad-
ministrative procedures, as well as fostering a role morality con-
sistent with these procedures, is the guiding purpose of this model.
Although it envisions non-judicial review and non-adjudicative pro-
cedures, and although it is directed to more than the conclusive
resolution of procedural complaints in individual cases, it never-
theless falls broadly within the common law tradition. The proposal
capitalizes on the theoretical revolution in implied procedural
review resulting from the fairness doctrine, without judicializing
bureaucratic procedures or compromising the effectiveness of the
administrative process.

III. Procedural fairness in perspective

Too often the field of administrative law has been characterized
by disputes which produce much heat but little light. In the
literature of judicial review, positions have been caricatured in the
past as pro-court or pro-agency and attitudes which sustain them
similarly qualified. Recent writings, however, seem to be more
oriented
to exploring theoretical foundations of administrative
law.100 Moreover, since courts are now assuming a more activist
posture, writers are devoting greater attention to the constitutional
and political implications of judicial review. Even Law Reform
Commissions and other agencies are beginning to address the
fundamental issues and assumptions which shape our political
ideology and governmental institutions.’0′ As the perennial problems
of administrative law receive more sophisticated analysis, the “less
illuminating disputes of the thirties’ ‘ 0 2 are becoming less frequent.

10oSee, e.g., Wright, The Courts and the Rule-making Process (1974) 59
Cornell L. Rev. 375; Chayes, supra, note 57; Arthurs, supra, note 4; Stewart,
The Reformation of American Administrative Law (1975) 88 Harv. L. Rev.
1667; Rabin, Administrative Law in Transition: A Discipline in Search of an
Organizing Principle (1977) 72 Nw. U. L. Rev. 120; Scalia, The AL Fiasco –
A Reprise (1979) 47 U. Chi. L. Rev. 57; Ginsburg, Panel IV: Improving the
Administrative Process – Time for a New A.P.A.
(1980) 32 Admin. L. Rev.
285;Vining, supra, note 17; Davis, Discretionary Justice (1969).

101 See, e.g., Law Reform Commission of Canada, Independent Administra-
tive Agencies (1980); Economic Council of Canada, Responsible Regulation
(1979).

102 Willis, supra, note 26, 360.

19801

JUDICIAL REVIEW AND PROCEDURAL FAIRNESS

The adoption of the doctrine of procedural fairness by the
Supreme Court of Canada in the Nicholson case illustrates the
contribution thoughtful scholarship can make to administrative law.
It has already produced one careful analysis of several aspects of
the theory of judicial review. 10 3 Yet, assuming the judiciary’s con-
tinued interest in extensive implied supervision, and given the prac-
this interest has produced, legal writers must
tical difficulties
attempt to reconcile divergent jurisprudential themes, even when
traditional
reconciliation
notions of procedural review. 04

involves substantial readjustment of

In law, developments which often first appear as small glosses
on received doctrine eventually transform vast areas of learning.
The theory of fairness is one such development. It makes explicit
many recent, but implicit, challenges to shibboleths of the common
law. Adjudication is no longer the optimal paradigm of due process
in legal decision-making. Adversariness no longer has a claim to
superiority as a means of resolving disputes. Legal rules themselves
cannot pretend to absolve individuals of personal responsibility for
juridical solutions. The reproach and censure associated with
for
judicial decrees are revealed as second-best mechanisms
ensuring respect for procedural propriety. The theory of fairness
embarks administrative law, and eventually all law, on a path
which ends with the recognition that law is not merely a collection
of signs, words and concepts having only discursive meaning. It
is also symbol, a metaphor of human society.0 5

One might now say, with some degree of certainty, that the in-
tellectual challenge of administrative law in the eighties is not to
ignore the institutional difficulties created by the growing bureau-

10.3 Loughlin, supra, note 2.
-104E.g., Fiss, The Forms of Justice (1979) 93 Harv. L. Rev. 1; Katzmann,
Judicial Intervention and Organization Theory: Changing Bureaucratic
Behavior and Policy (1980) 89 Yale L.J. 513; and Tushnet, Truth, Justice and
the American Way: An Interpretation of Public Law Scholarship in the
Seventies (1979) 57 Tex. L. Rev. 1307.

105 1 am, of course, drawing heavily on Langer, Philosophy in a New Key,
3d ed. (1957), in these concluding remarks. See also Vining, supra, note 17,
181:

Law is symbol as well as system…. A symbol does not merely describe
a thought. It is not a cipher, cool and detached. … Law and litigation
have served to separate individuals from one another, to push and keep
them apart. … Law need no longer symbolize what it has in the past.
However potent a symbol is, it can change. … Litigation can now bring
home as forcefully as any religious ritual that each of us is in fact
involved in mankind. Public law has come of age.

McGILL LAW JOURNAL

[Vol. 26

cratic state and the tentative attempts by courts to respond to this
growth; rather, it is to develop and staff institutions to resolve
them. Accordingly, the highest calling for administrative lawyers
will be not to destroy the symbolism of the law but to transform
it, in the search for new meaning in the problems of public law.100

106 1 am grateful to the participants at the Canadian Conference on the
History and Philosophy of Law, held at the University of Windsor, June 9,
10 and 11, 1980, for their insistence upon the philosophical importance of the
emerging theory of procedural fairness. See the forthcoming proceedings of
the Conference for a paper which develops this theme.

in this issue McGill Companion to Law

related content