The Presumption Toward Procedural Fairness
A significant consequence of identifying a decision as one with a public law element is to require the decision maker to exercise his or her discretion in accordance with the well established rules of natural justice or procedural fairness.
While a court may not be prepared to inquire into the substance of an employment decision, such as the decision to dismiss, it will mandate, at minimum, procedural safeguards before such dismissal. This has been the thrust of landmark cases from Canada. The case of Knight,[300] for example, emphasizes the reason for the court’s intervention and its impact.In Knight, the respondent director of education for the appellant Board was dismissed with three months notice. He challenged the decision for wrongful and unlawful dismissal, alleging the absence of procedural fairness. Speaking for the majority, L’Heureaux-Dube J noted that:
the duty to act fairly does not depend on doctrines of employment law, but stems from the fact that the employer is a public body whose powers are derived from statute, powers that must be exercised according to the rules of administrative law.[301]
After exhaustive review of precedents from Canada and England, L’Heureaux-Dube J concluded that there is �a general right to procedural fairness’ autonomous of the operation of any statute resting on a public body in an employer/employee relationship.[302] Further, a public employee not protected by contract is entitled to a general duty of fairness.[303]
What, then, is encompassed in the principle of procedural fairness in relation to employment? In Hall v University of New South Wales, McClellan J stated that:
A statutory body which makes a decision adversely, directly and personally affecting a person’s rights, interests or legitimate expectations must ensure that the procedures utilized in making the decision are fair.[304]
His Lordship cited with approval the definition of the term by Mason J in Kioa v West:
The expression �procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[305]
A fundamental element of procedural fairness is the hearing rule or �the right to be heard’; as McClellan J said, the elements of �the right will vary in particular cases.’[306] This view, we have seen, was echoed by L’Heureux-Dube J in Knight.[307]
Binnie J in New Brunswick (Board of Management) v Dunsmuir, reminds us further that:
...a fair procedure is said to be the handmaiden of justice.
Accordingly, procedural limits are placed on administrative bodies by statute and the common law. These include the requirements of “procedural fairness,” which will vary with the type of decision maker and the type of decision under review. On such matters, as well, the courts have the final say. The need for such procedural safeguards is obvious. Nobody should have his or her rights, interests or privileges adversely dealt with by an unjust process.[308]6.