Introduction to procedural fairness in administrative law

Procedural fairness is, or should be, a fundamental principle of administrative law, the law that regulates state (in Canada, provincial, territorial and federal) agencies. Procedural fairness requires, at a minimum, that a person be consulted before a final decision that will impact them is made.

The area of procedural fairness is expansive and complex. The aim of this article is to introduce one of its essential features: the Right to be Heard.

Depending on the circumstances (and the stakes), this might mean a simple, written application or a formal hearing with the presentation of oral examination and the cross-examination of witnesses.

Aspects of the Right to be Heard

The Right to Notice. Adequate notice must a) provide parties with an explanation of the purpose of a hearing, and b) provide them with enough time to prepare.

The Requirement to Retain Evidence. An investigator must retain evidence that may be relevant at a hearing.

The Right to Be Present. No part of a hearing should take place without all parties being present, unless a party is intentionally disruptive or has voluntarily given up their right to attend.

The Right to Be Represented. Parties have the right to have their case put forward by a representative of their choosing.

The Right to Present Evidence. Parties must have an opportunity to prove the facts of their case by producing relevant information.

The Right to Cross-Examine. Put simply, parties must have an opportunity to correct or contradict information unfavourable to their case.

The Person Who Hears Must Decide. The person who hears a case is the only person who may decide the case. It is improper for the tribunal chair or other members to pressure an adjudicator to consider their opinion of a matter.

The Right to a Decision Based Solely on the Evidence. This follows from the right to cross-examine. The exception to this rule is known as administrative notice.

The Right to Reasons for the Decision. Where inadequate reasons are given, a judicial review of a decision may be necessary.

The second essential feature of procedural fairness is impartiality. This will be introduced in a future article.