Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Procedural fairness impacts all of us—whether we’re in the court system or not, we are always dealing with procedural fairness in our everyday life.  In the court system you may have noticed that a number of my lectures are about procedure – whether it’s Rules of Civil Procedure (whether in small claims court procedure or family law procedure).  In a court system the procedures are often laid out/ defined in great detail because courts are concerned with the process by which the decision-making is done.  The court is trying to ensure that every party who is involved in a court process is entitled to a procedural fairness in that system.  But what happens in our lives outside of the court system? How does the procedural fairness impact all of us on a daily basis?  That is what this lecture is about.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Who is affected by procedural fairness?  As I stated, the answer is all of us—when we are dealing with the public or quasi public institutions—we are always dealing with issues of procedural fairness.  For example, when you apply for employment insurance, when you’re laid off from your employment or when you are ill or when you are on maternity leave or part of parental leave and whatnot you are dealing with procedural fairness – social benefits, welfare, disability matters all are dealt in procedural fairness.  When you are engaging health care, attending hospitals, universities, colleges, when you’re applying for a license (for example, a driver’s license or health card) – all of these instances are examples where procedural fairness is at play. Even in private institutions, for example, when an employer conducts a workplace investigation that investigation is bound by procedural fairness.  There are so many scenarios in our life where we are engaged with procedural fairness.

What is this procedural fairness? Procedural fairness is essentially fairness of the process / the procedure by which a decision is made.  Procedural fairness is not concerned about what is the end result / what is the end decision but the process by which that decision is made.  How do we understand this process?  

Let me give you an example. A complains that B has harassed him.  A comes to you as the employer.  That is the complaint.  You make the decision to penalize B without an opportunity for B being able to respond to the complaint—you believe that B has been harassing other employees all the time.  There have been many instances in the past that B was reprimanded or punished for his harassing behavior.  On the other hand you know A very well. He is a great person (likable person) who doesn’t lie, doesn’t cause trouble in the workplace.  On the basis of that information you just believe that there is no need for B to respond to these allegations – you must have done so and you go ahead and penalize B. That is essentially a violation of procedural fairness for B. Because you have denied B an opportunity to respond to that complaint and you’re taking a shot in the dark because there is 50 percent chance whether B harassed A or not.  By failing to give an opportunity for B to respond, you have violated his procedural fairness.  That’s an example of how procedural fairness works in the process.

What are some of the basic elements of procedural fairness? There are essentially 2 principles and they are in Latin and the English is: 1. Number one is the right to be heard (this is one procedural fairness principle); and, the 2nd is the right to be judged impartially. Now these procedures manifest in many different ways.

Let’s go through the examples of how procedural fairness may work in different scenarios. 1st of all you should understand that the threshold that engages the duty of procedural fairness is quite low. What is that threshold? If an individual’s rights, privileges or interests are at issue then the procedural fairness is engaged and this is a very low threshold—because if you are affected by a decision then obviously your interests are at issue.  If you applied to a certain university and you believe that the admission process was unfair, of course your interests are engaged in the process.   Procedural fairness, number one, has a very low threshold to be engaged—I mean, I can’t imagine any scenario where you may not be entitled to procedural fairness but that’s what it is the threshold is quite low.

2nd what you want to remember is that procedural fairness is flexible and entirely dependent on context. The two principles that I’ve talked about the right to be heard and the right to be judged impartially, they are applied in the specific circumstances of the case.  That is why it is important to know that what may be a breach of procedural fairness in one context may be completely fair in another context.  Procedural fairness is context driven.  The courts or the administrative bodies are looking at the specific context of that case to decide what is procedurally fair in the circumstances of that case.

The 2 procedural fairness principles that we have talked about: the right to be heard and the right to be judged impartially have different manifestations in different circumstances.  I have listed some of the examples of these manifestations: number one is no undue delay.  If it is fair for you to get a decision in 30 days and you have not received a decision for 6 months, then, that may be an undue delay.  That may be a violation of your procedural right / procedural fairness.  You’re obviously entitled to a fair and impartial process.  We talked about it.  You are entitled to / have the right to know the case against you.  In the example that I have given, B is entitled to know what the complaint against him is—who made the complaint, so that he could respond to it.  Then the right to be heard. B is then entitled to do to be heard.  B is entitled to say his truth, to say his side of the story so that the decision maker can make a just and fair decision.

Legitimate expectation means that if you are a person who is affected by a certain decision and there are certain expectations given to you for that process, then those expectations are complied with.  For example, we know that in the Rules of Civil Procedure a party is entitled to file its defense within 20 days or 30 days in certain circumstances. That means that party is entitled not to be noted in default until that time runs out (20/30 days). If that party is noted in default earlier, then that’s a violation of the legitimate expectation of that party. Similarly, if you are entitled to a decision in 30 days and you don’t get that decision for 6 months or a year—that’s a violation of your procedural right for a legitimate expectation.

There is also a right called freedom to conduct one’s own case.  This is again specific to a scenario.  In this case, the Human Rights Tribunal had imposed on a party to provide “Will Say” statements for certain witnesses.  The party said we are entitled to present our case the way we want it.  You cannot force us to present our witnesses evidence.  They challenged that decision and the decision was overturned by the Divisional Court on the grounds that the party was entitled to present its case the way it sees fit—that it cannot be imposed on the party how it should present a case.

Right to reasons: in certain circumstances you may be entitled not only to know the decision but to know the reasons for that decision. An example of this right was in one case where a probationary police officer was terminated from his employment without giving any reasons. And the employer took the position that the Police Act allowed them to terminate the employee and therefore they didn’t need to provide any reasons.  The court said no, you are required to provide reasons to this particular probationary officer because it is procedurally unfair for him not to know the reasons and not to have an opportunity to respond to those reasons.  In certain circumstances this may be your procedural right – to know the reasons for the decision.

Similarly, in workplace investigations the person who is being penalized because of the outcome of that investigation may be entitled to know the reasons why the decision was made against that party. In circumstances where credibility is an issue we know that oral submissions are important.  In certain circumstances where a decision-making body denies one party to make oral submissions even though there were credibility issues that were at play, then it may be held that that was a denial of procedural fairness. 

In some circumstances you may be entitled to an adjournment of certain decision because you need a little bit more time to respond to certain things and it may be considered that if an adjournment is not given to you, in those circumstances, that may be a violation of procedural fairness.  In some circumstances we know that, for example, in a workplace investigation scenario, Occupational Health and Safety Act imposes an obligation on an employer to conduct an investigation for harassment.  In some other circumstances you may be entitled, based upon your complaint, to have an investigation and if the party or the employer in that circumstance does not conduct an investigation, that may be a violation of your right.

What is the take away: you have to always, always, always watch out for procedure. The devil may lie, the devil may work behind the procedure, greater injustice maybe happening because of lack of procedural fairness.  This is something that you need to always watch for. You need to always claim procedural fairness and you need to follow procedural fairness with respect to your rights and obligations.

Thank you for watching.