From Natural Justice to Fairness – Thresholds, Content, and the Role of Judicial Review

Abstract

The development of the “duty of fairness” is one of the great achievements of modern administrative law. It promotes a well-informed decision-making process, leading to better public policy outcomes, and at the same time helps to ensure that individuals are treated with respect in the administrative process.

This chapter outlines the development of the duty of fairness in Canada beginning with Nicholson v Haldimand-Norfolk (Regional) Police Commissioners in 1979, in which the Supreme Court of Canada abandoned the dichotomy between judicial and administrative decisions, holding that a general duty of fairness applies whenever a decision is made that affects an individual's rights, privileges, or interests.

The threshold tests for determining when fairness is required are analyzed and limitations on the reach of the duty of fairness are considered. The duty of fairness is context-specific, and considerations relevant to determining the content of the duty are addressed, along with particular requirements of the duty including the duty to provide reasons. The decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) is considered at length.

Keywords: Duty of fairness, natural justice, principles of fundamental justice, judicial review, duty to give reasons, legitimate expectations

JEL Classification: K10, K23