THE DUTY OF FAIRNESS IN THE INVESTIGATIVE STAGE OF ADMINISTRATIVE PROCEEDINGS.

Author:LaBoissonniere, Lucie
Position:Canada
 
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Introduction

Administrative bodies and tribunals may be subject to procedural requirements within their statutory scheme and statutory powers procedures acts. In other respects, administrative bodies are generally found to be masters of their own procedures. (1) This potentially allows for wide latitude with respect to process. However, this is always subject to a requirement to ensure the common law rules of natural justice are recognized and applied at the appropriate stages of any proceeding. (2)

This comment will address how the courts have interpreted the duty of fairness as it relates to investigations in the context of administrative proceedings.

At what stage does the duty of fairness arise?

The common law duty of fairness ensures correct results are reached when public authorities, regulators and tribunal members make administrative decisions affecting the rights, interests and privileges of an individual. However, the duty is more than a means of encouraging better results. In fact, it has been defined as an independent, unqualified right that any party affected by an administrative decision is entitled to. (3) Furthermore, the denial of a right to a fair process must always invalidate a decision, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. (4) The Baker case has confirmed that the requirements of the duty of procedural fairness in the context of administrative proceedings are determined by a fact-specific analysis and based on a number of well-known factors, namely: the nature of the decision and the process followed in making it; the nature of the statutory scheme; the importance of the decision to the person affected by it; the legitimate expectations of the parties and the procedure chosen by the tribunal. (5)

But before an administrative decision is made, an investigator may be tasked with a fact-finding role, interviewing witnesses, gathering evidence and making conclusions, perhaps even recommendations to a decision-maker. While the duty of fairness may have limited application to certain non-final administrative decisions and investigations, there are compelling reasons for recognizing that in some cases, the duty of fairness should be broad. Individuals impacted by an administrative decision have the right to hear the other side and to respond to evidence and arguments of other participants and of the decision-maker. This right, an expression of audi alteram partem, exists at all times and is context-sensitive. In certain cases, those sensitive times occur in the investigative phase of the administrative process.

In Irvine v Canada (Restrictive Trade Practices Commission), the Supreme Court of Canada found that courts should not intervene in procedural matters where an investigator is involved in the first stage of an investigation if there are sufficient safeguards later in the process to protect all of the parties involved. (6) In that matter, the Court was asked to decide if a party being investigated had the right to have his counsel cross-examine witnesses in the course of a hearing inquiry. The Court, per Estey J., found that there was a duty of fairness in the investigative phase, yet its extent depended on the context:

Fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved. The characteristics of the proceeding, the nature of the resulting report and its circulation to the public, and the penalties which will result when events succeeding the report are put in train will determine the extent of the right to counsel and, where counsel is authorized by statute without further directive, the role of such counsel. The investigating body must control its own procedure. When that body has determinative powers, different considerations enter the process. The case against the investigated must be made known to him. (7) Further, the Supreme Court explained that the duty of fairness will depend on the potential consequences and outcomes:

Courts must, in the exercise of this discretion, remain alert to the danger of unduly burdening and complicating the law enforcement investigative process. Where that process is in embryonic form engaged in the gathering of the raw material for further consideration, the inclination of the courts is away from interventioa Where, on the other hand, the investigation is conducted by a body seized of powers to determine, in a final sense or in the sense that detrimental impact may be suffered by the individual, the courts are more inclined to intervene. (8) In Ruff o v Conseil de la magistrature, the Supreme Court confirmed that the duty to act fairly and the audi alteram partem rule apply to preliminary stages of administrative proceedings. The scope of the requirements varies depending on the circumstances of each case. (9) It...

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