Procedural Obligations: Common Law (Part One)

In my last blog entry, I discussed procedural obligations arising from statute and soft law. What happens when those documents are silent or ambiguous? When a statute is silent or leaves gaps with respect to procedure, the common law steps in to fill those gaps. The other fundamental principle is that to override the rules of natural justice, express language or necessary implication must be found in the statute. The statute cannot be ambiguous. With those two principles in mind, we can begin to answer whether the duty applies.

Does the Duty Apply?

The general rule from Cardinal is that the duty of fairness obligation is likely to be broad. The duty arises for decisions of every public authority that is making decisions of an administrative nature which affect the rights, privileges or interests of an individual. The duty can be ousted by (i) the nature of the decision, (ii) the relationship between the public official and the citizen or (iii) the effect of the decision.

(i) Nature of the Decision – Whether the decision is final or preliminary and legislative or administrative affects whether the duty applies. The general principles discussed below come from Knight v. Indian Head School Board.

A decision of a preliminary nature does not trigger the duty whereas a decision of a final nature does. There are two exceptions to this general rule. First, a preliminary decision that is de facto a final one is subject to the duty. Second, if the preliminary decision has a significant impact on the person effect, the duty will attach.

A decision of a general, legislative nature does not trigger the duty whereas a decision of a specific, administrative nature does. The question becomes: what is legislative? The important distinction between the two comes from Wells v. Newfoundland. An implementation of a general policy which happens to have a specific effect on someone is not enough to classify the decision as specific and administrative. The case of Homex Realty v. Wyoming tells us it is important to look at the substance of the decision. A decision cannot be taken on its face, we must look at the substance, context and circumstances to determine the true nature of the decision.

(ii) Relationship Between the Body and the Individual – the duty can be excluded by statute or by contract.

If a relationship between the two is set out by statute or the statute expressly excludes the duty (or by necessary implication), no duty will attach. The rule from Kane v. Board of Governors of UBC is that, in order for the duty to not attach, the statute must exhaust the relationship of procedural fairness or expressly oust the duty. The statutory language must be very specific and deal exactly with the procedure in question.

If a relationship between the two is set out in a contract, the duty may not attach. The general rule from Dunsmuir v. New Brunswick is that an employment relationship between the government and individual (i.e. employer-employee) will not be subject to the duty where there is an employment contract. Instead, that relationship is governed by private law. Mavi clarified this rule by saying that interpretation of the Dunsmuir rule should be narrow and only when a relationship is truly contractual will the duty not attach. In Mavi, the undertakings were found not to be a contract because the substance of the undertaking was set by statute and regulations. The court held that the Dunsmuir rule did not apply because the substance of the undertaking was from statute and so the terms of the relationship were set by statute. Note that this is consistent with the general principles from Nicholson and Martineau: procedural fairness should reach as far as possible among public officials as long as it is principled.

(iii) Effect of the Decision on the Individual’s Rights – the threshold for meeting the requirement of effecting the rights, privileges or interests of an individual is very low because we want public officials to be governed by the duty. There is a right to procedural fairness only if the decision is a significant one which has an important impact on the individual. For example, decisions like deportation (Baker) and enforcement of a debt (Mavi) are taken to meet these criteria.

The question becomes whether the decision to deny a benefit which one is eligible for but not entitled to is subject to the duty. The case of Hutfield v. Board of Fort Saskatchewan General Hospital District No 98 stands for the proposition that the duty applies whether the person is a benefit seeker or benefit holder. The traditional view that the duty applied only to benefit holders has been abandoned because the distinction between seekers and holders is not grounded in principle.


It appears that the common law duty is very far reaching and expanding. The court in Homex Realty looked to the substance of a bylaw (i.e. a legislative decision) to conclude that the duty applied. The court in Mavi held that an undertaking (i.e. a form of contract) did not create a contractual relationship between the government and individual, meaning that the duty applied. It also stated that the Dunsmuir exception must be interpreted narrowly. The court in Hutfield abandoned the principle that the duty applied only to benefit holders. It held that the duty applies to both benefit seekers and holders. All instances are keeping in mind the principles from Nicholson and Martineau, discussed above.

The next entry will discuss what the common law duty entails when it applies.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s