In the 1960’s and 1970’s, the role of government in everyday life
grew by leaps and bounds. Officials began to hold and exercise power
on a scale hitherto unknown. Because of the importance of the de-
cisions made by them, the traditional distinction between judicial
and quasi-judicial functions (which were subject to judicial review)
and administrative functions (which were not) ceased to be satis-
factory. It is arguable that it never was satisfactory, nor was it as
firmly established as may have been thought. It is clear that by the
mid-1960’s the distinction was threatening to cause hardship and to
prevent the courts from administering justice in vital areas of human
endeavour.
In response to the problem, English courts at that time imposed
a “duty to be fair” on certain administrative decisions, putting them
within reach of judicial review.’ Canadian courts reacted with sur-
prising conservatism to this innovation. For ten years, the duty to
be fair remained a controversial and marginal idea, restricted to
dicta and equivocal cases, 2 while the voices criticizing Canadian ad-
ministrative law for its backwardness grew in number and elo-
quence.3
In Nicholson v. Haldimand-Norfolk Regional Board of Com-
missioners of Police,4 the Supreme Court of Canada has answered
the critics by showing that it is now prepared to impose a duty to
ISee Re H.K. [1967] 2 Q.B. 617 (C.A.).
2 See, e.g., M.M.I. v. Hardayal [1978] 1 S.C.R. 470, 479, where Spence J.
said: “It is true that in exercising what, in my view, is an administrative
power, the Minister is required to act fairly and for a proper motive and his
failure to do so might well give rise to a right of the person affected to take
proceedings under s. 18(a) of the Federal Court Act, but, for the reasons
which I have outlined, I am of the opinion that the decision does not fall
within those subject to review under s. 28 of the said Federal Court Act”.
3 Mullan, Fairness: The New Natural Justice (1975) 25 U.T.L.J. 281 [here-
inafter Fairness]; Mullan, Martineau & Butters v. Matsqui Institution Inmate
Disciplinary Board: Its Potential Impact on the Jurisdiction of the Trial
Division of the Federal Court (1978) 24 McGill L.J. 92 [hereinafter Impact];
Loughlin, Procedural Fairness: A Study of -the Crisis in Administrative Law
Theory (1978) 28 U.T.LJ. 215.
4 [1979] 1 S.C.R. 311.
act fairly on administrative decision-makers. Nicholson was a police
constable whom the Board of Commissioners dismissed, without
notice and without giving reasons, before the expiry of his eighteen
month probationary period. The Ontario Police Act 5 specifically
exempts dismissal within the first eighteen months of service from
the procedural protections afforded by the Act in disciplinary
matters. This clearly meant that an administrative, and not a quasi-
judicial, power had been exercised in dismissing Nicholson. A
Divisional Court judgment for the plaintiff on the basis that the
Board had breached a duty to be fair was overturned by the Ontario
Court of Appeal. The Court of Appeal found that the firing of some-
one who in effect was an office holder at pleasure disclosed no
grounds for review.6 The Supreme Court reversed this decision. Chief
Justice Laskin, speaking for the majority, challenged the notion that
a probationary constable held office at pleasure, and proceeded to
say:
In short, I am of the opinion that although the appellant clearly cannot
claim the procedural protections afforded
to a constable with more
than eighteen months’ service, he cannot be denied any protection. He
should be treated “fairly” not arbitrarily. I accept, therefore, for present
purposes and as a common law principle what Megarry, J. accepted in
Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373, at p. 1378, “that in the
sphere of the so-called quasi-judicial the rules of natural justice run,
and that in the administrative or executive field there is a general
duty of fairness”. 7
As definitive as that statement is, a single decision could not
be expected to clarify all issues and this one has not done so. A
more recent Supreme Court judgment, in the case of Martineau v.
Matsqui Institution Disciplinary Board (No. 2),8 has elaborated
certain aspects of the fairness principle, but most remain un-
settled. It is the purpose of this comment to discuss some of the
more pressing questions. Three in particular deserve attention:
(1) the extent of the duty to be fair; (2) the fate of the venerable
distinction between administrative and quasi-judicial decisions; and
(3) the difficulties with regard to remedies, especially under the
Federal Court Act. 9
U R.S.O. 1970, c. 351; R.R.O. 1970, Reg. 680, s. 27(b).
6 On this point, see Loughlin, supra, note 3.
7 Supra, note 4, 324.
8 S.C.C., Dec. 13, 1979 (unreported).
9R.S.C. 1970 (2d Supp.), c. 10.
McGILL LAW JOURNAL
IH. The extent of the duty to be fair
In Nicholson, Chief Justice Laskin implied that “fairness” might
serve as a “half-way house … between the observance of natural
justice aforesaid and arbitrary removal”.10 The same idea is present
in the passage from de Smith’s Judicial Review of Administrative
Action” cited by the Chief Justice, and the appeal it has for courts
is explained by Mullan:
As long as some judges saw the rules of natural justice as always in-
volving all the procedural protections of a court of law, it was difficult
to convince them to imply that those rules applied in particular situa-
tions where the statute was silent. For such a judge, fairness and the
opportunity to imply a lesser standard and only some of the rules
presents an attractive alternative. 12
despite a line of cases implying the opposite14
This appears to be precisely the argument adopted in the majority
opinion in Martineau v. Matsqui Institution No. 2.13 There the
influence of Nicholson is clearly reflected in the Supreme Court’s
recognition –
_
that a ground for reviewing purely administrative decisions does
exist, the ground of procedural fairness.” While accepting this, the
majority quickly added that the duty to act fairly was much less
onerous than that to act in accordance with the rules of natural
justice,”‘ and that in the particular circumstances before the court
it would require “serious
–
injustice””7 before a breach of the duty could be found.
disciplinary action by prison officials –
These authorities suggest that “fairness” is diluted “natural
justice”. The oft-quoted phrase from Furnell v. Whangerei hints at
a greater ambiguity involved: “Natural justice is but fairness writ
large and juridically”.18 Indeed, no hard and fast line separates
the two concepts. What is “fair” in any single case must depend on
the nature of the decision being made, which is the same flexible
standard that has always been used in applying natural justice.”
10 Supra, note 4, 322.
11 de Smith, Judicial Review of Administrative Action 3d ed. (1973); cited
in Nicholson, supra, note 4, 324.
12 Mullan, Fairness, supra, note 3, 315.
13 Supra, note 8.
14 Howarth v. National Parole Board [1976] 1 S.C.R. 453; Mitchell v. The
Queen [1976] 2 S.C.R. 570.
15 Supra, note 8, Reasons for Judgment of Pigeon J., 5.
16 Ibid., 8.
17 Ibid.
sFurnell v. Whangerei High Schools Board [1973] A.C. 660, 679 (P.C.). See
also Inuit Tapirisat v. Governor-in-Council [1979] 1 F.C. 710, 716, n. 4 (CA.).
19 See Wiseman v. Borneman [1971] A.C. 297 (H.L.); Furnell v. Whangerei,
supra, note 18; Selvaraian v. Race Relations Board [1976] 1 All E.R. 13 (C.A.);
Similarly, fairness might possibly involve a widening of grounds
for review. In Nicholson, for example, the Supreme Court required
in one respect a higher procedural standard than that found in many
judicial functions:
In my opinion, the appellant should have been told why his services
were no longer required and given an opportunity, whether orally or
in writing as the Board might determine, to respond.2 0
The right to make representation prior to a final decision, and to
know the complaint being made, have been consistent aspects of
fairness in the British jurisprudence.2 ‘ That Nicholson should be
entitled to know the full reasons for his dismissal, however, could
be a significant expansion.
It has never been a principle of natural justice that reasons should
be given for decisions. Since there is no such rule even in the courts
of law themselves, it has not been thought suitable to create one for
administrative bodies 22
Although it was probably not the intention of Chief Justice Laskin
to overturn the age-old rule that reasons are not always required,
it will be progress indeed if it is established that, in appropriate
cases, the furnishing of reasons is a necessary part of fairness.
One further theoretical question arises concerning “fairness”.
It has generally been assumed that “fairness” is a procedural pro-
tection and that it does not touch the substance of decisions made
by officials..2 4 However, the wording of the Nicholson decision sug-
gests at least a gloss of some importance:
quoted at length and with approval in Nicholson, supra, note 4, 327. An
earlier Supreme Court decision reveals how the content of natural justice
can be restricted. In Quebec Labour Relations Board v. Canadian Ingersoll
Rand Co. [1968] S.C.R. 695, 701, Mr Justice Fauteux said: “Comme cette
Cour l’a rappeld rdcemment [in Ex p. Komo Construction Inc. [1968] S.C.R.
172], la r~gle audi alteram partem n’implique pas qu’il doit toujours 6tre
accordde une audition. L’obligation est de fournir aux parties l’occasion
de faire valoir leurs moyens”.
20 Supra, note 4, 328. See also Re Gillingham & Metropolitan Toronto Bd of
Commissioners of Police (1979) 26 O.R. (2d) 77 (Div. Ct).
21 One of the first cases on fairness was Re H.K., supra, note 1, and it, too,
stressed this issue.
2 2 Wade, Administrative Law 4th ed. (1978), 463. On the obligation to provide
reasons, see Monsanto Co. v. Commissioner of Patents (1979) 28 N.R. 181
(S.C.C.).
2 This is especially clear because in Nicholson, the reasons should have
been furnished before the decision for rebuttal purposes, not afterwards, as
on explanation.
24 See Loughlin, supra, note 3; Mullan, Fairness, supra, note 3; Mullan,
Impact, supra, note 3. But de Smith, supra, note 11, is less certain.
McGILL LAW JOURNAL
The Board itself, I would think, would wish to be certain that it had
not made a mistake in some fact or circumstance which it deemed
relevant to its determination. Once it had the appellant’s response, it
would be for the Board to decide on what action to take, without its
decision being reviewable elsewhere, always premising good faith.2
What if there is no good faith? It is generally accepted that no de-
cision made in bad faith can be valid and that bad faith has, in
administrative law, a broader meaning than dishonesty or inten-
tional misdeeds.2 6 Would the duty to be fair extend far enough to
quash decisions made in ostensible compliance with procedural
requirements, where no reasonable man could have decided in
that way?
The problem can be explained as follows. The purpose of the
“duty to be fair” is to allow the individual a chance to explain him-
self and to give the deciding body the capacity to make its de-
cision on the fullest information. Presumably, that body should be
sufficiently open at the time it hears representations to be swayed
should the argument be convincing. If, after representations, there
is no basis whatsoever for an unfavourable decision, but such a
decision has been rendered, could one argue that the duty to be
fair was not observed?2
If the answer is negative, then the duty can become a sham,
legitimizing arbitrariness so long as this is accompanied by a pre-
scribed ceremony. If
it is positive, then fairness is not limited to
procedure but applies, in extreme cases, to the substance of de-
cisions.2 8
25 Supra, note 4, 328.
208See Grey, Discretion in Administrative Law (1979) 17 Osgoode Hall L..
107, 114-18. See also Landreville v. Town of Boucherville [1978] 2 S.C.R. 801.
27This would be akin to the “no evidence” grounds for review in cases of
traditional natural justice. See Elliott, “No Evidence”: A Ground of Judicial
Review in Canadian Administrative Law (1972) 37 Sask. L. Rev. 48.
2sDickson J., however, declined the opportunity to expand fairness to sub-
stantive issues in Martineau (No. 2), supra, note 8. Perhaps the substantive
equivalent of fairness may be found in the notion of discretion to which he
refers: “A purely ministerial decision … will typically afford the individual no
procedural protection, and any attack upon such a decision will have to be
founded upon abuse of discretion” (Reasons for Judgment, 25). The rules
concerning abuse of discretion (see Boulis v. M.M.L [1974] S.C.R. 875)
may thus be the equivalent of “substantive” (as opposed to “procedural”)
fairness. Both deal With the limits beyond which officials invested with
even the widest powers will not be permitted to go.
III. The distinction between administrative and quasi-judicial
With Nicholson, the non-reviewability of administrative func-
tions has been replaced by review on the grounds of fairness;
thus, whether any vitality remains in the distinction between ad-
ministrative and quasi-judicial functions –
a distinction on which
so much of administrative law has up to now rested2 –
depends
largely on the relationship between fairness and natural justice.
If a conservative approach is adopted and fairness is seen as a lesser
form of natural justice –
as providing only a minimal standard of
procedural protection in administrative matters –
then the dis-
tinction will remain important.”‘ However, if fairness and natural
justice represent essentially the same flexible standard as applied to
a range of decision-making modes, then the distinction loses much
of its significance.
There are statements in the Nicholson majority opinion which
imply both positions.3 The case does coincide with a growing trend
in Canadian jurisprudence to play down the distinction and to speak
instead in terms of a continuum of decision-making powers. Perhaps
the best example is found in the judgment of the Nova Scotia Court
of Appeal in Scott v. Rent Review Commission, where, after a
thorough review of recent thought on the issue, Chief Justice
MacKeigan said:
Modern Canadian courts also have tended to reject the “administrative”
vs. “judicial” test, and have looked rather at the subject matter involved
and the function of the tribunal or official involved to determine broadly
what procedural rules should be followed to ensure fairness to those
affected. 3
The Supreme Court expressed the same view in the recent case of
M.N.R. v. Coopers & Lybrand:
Administrative decision does not lend itself to rigid classification of
function. Instead, one finds realistically a continuum.3
29See, e.g., Nakkuda Ali v. Jayaratne [1951] A.C. 66 (P.C.); Calgary Power
Ltd v. Copithorne [1959] S.C.R. 24.
3OLoughlin, supra, note 3, 235-36.
31 The Chief Justice quotes Megarry J.’s conservative formulation of
fairness (at p. 324), but then adopts Mullan’s concept of a continuum (at p.
325.)
32 Scott v. Rent Review Commission (1977) 23 N.S.R. (2d) 504 (S.C. App.
Div.). The Alberta Court of Appeal was more cautious in Harvie v. Calgary
Regional Planning Commission (1978) 12 A.R. 505, a case which was decided
after Nicholson and relied on it in part.
3 [1979] 1 S.C.R. 495, 505 per Dickson J.
McGILL LAW JOURNAL
It is true that Mr Justice Dickson retains the administrative/
judicial distinction by providing criteria for determining the latter,
but it must be remembered that the case concerned the Federal
Court Act3 which presents special difficulties.
Canadian law therefore seems on the verge of taking the logical
step of dispensing with the Platonic concept of administrative and
judicial ideal forms and replacing it with a flexible, case-by-case
approach. The argument that this will introduce uncertainty as to
what procedures are necessary for any particular decision overlooks
the confusion, and often the injustice, involved when the distinction
is maintainedP 5
The approach taken by the Federal Court of Australia in R. v.
Wilson, Ex p. Donaldson”0 recommends itself. The case also con-
cerned the dismissal of a policeman. Bowen C.J. reviewed the history
of natural justice and concluded that it was linked neither to the
“super-added duty”3
to act judicially, nor even to the nature of
the function. From the old case Cooper v. Board of Works for the
Wandsworth District,4 he took the principle that a man’s rights
cannot be taken away without his having an opportunity to express
himself, and found it to be a presumption of all legislation, a pre-
sumption which may be displaced by appropriate drafting.40 It may
be more easily displaced in administrative than in quasi-judicial
matters:
The presumption that the legislature is not to be taken as intending that
the right to a hearing (required by the rules of natural justice) should
be ousted, is not confined to judicial or quasi-judicial proceedings. In
any particular case it still remains necessary to interpret the particular
legislative provisions. In provisions dealing with administrative action,
it may, in the nature of things, be more often found that the pre-
sumption has been rebutted.41
This approach can bring back the simplicity which administrative
law lost during its evolution in this century.
34 R.S.C. 1970 (2d Supp.), c. 10.
35 See Mitchell v. The Queen, supra, note 14, 593, where Mr Justice Ritchie
speaks of an “unfettered discretion”.
-3 (1977) 32 F.L.R. 399 (F.C. of Austr.).
37 Ibid., 407.
38 It may be surprising to see such a radical conolusion derived from
Ridge v. Baldwin [1964] A.C. 40 (H.L.) and Durayappah v. Fernando [1967]
2 A.C. 337 (P.C.), but the view is plausible.
39 (1863) 14 C.B. (N.S.) 180, 143 E.R. 414.
40See Heatley v. Tasmanian Racing & Gaming Commission (1977) 51
A.L.J.R. 703 (H.C. of Austr.) as well as the leading case of Wiseman v. Borne-
man, supra, note 19.
4 1 R. v. Wilson, Ex p. Donaldson, supra. note 36, 409.
IV. Fairness, remedies and the Federal Court Act
The distinction between administrative and quasi-judicial func-
tions seemed as though it would remain important after Nicholson
in the area of remedies. It had long been considered that the pre-
rogative writs of certiorari and prohibition could only issue in
quasi-judicial matters 2 and that judicial review of administrative
acts would have to use different remedies 3 In Nicholson, the re-
medy granted was a statutory Ontario remedy,” so the case left
unresolved the question of prerogative writs. It should be noted
is
that the writ of evocation (the statutory remedy in Quebec)
likely unavailable for breaches of the duty to be fair, as article 846
of the Code of Civil Procedure, which provides for this writ, uses
the word “court”. 45
The “restrictive” view of prerogative writs received strong
support from the Federal Court of Appeal in Matsqui Institution
v. Martineau (No. 2):
While the ambit of certiorari has expanded over the period that has
elapsed since it was a writ whose sole function was to enable a superior
court of law to review decisions of inferior courts of law, in our opinion,
it continues to have application only where the decision attacked is
either judicial in character or is required by law to be made on a
judicial or quasi-judicial basis. 46
This decision, traditional as it was, left Canadian administrative
law in an unhappy state, saddled with unnecessary intricacies. First,
it meant that success or failure in a judicial review application
depended as much on choosing the right remedy as on the merits
of the case. If Martineau had sought a declaratory judgment rather
42 See Grey, supra, note 26, 129-31.
43 See Alberta Union of Provincial Employees v. Alberta Classification
Appeal Board [1978] 1 W.W.R. 193 (Alta S.C.T.D.) per McDonald J. But in
McCarthy v. Board of Trustees [1979] 4 W.W.R. 725, 737 (Alta S.C.T.D.),
Laycraft J. specifically refused to follow McDonald J. on this point and said
that certiorari would be available.
44Judicial Review Procedure Act, S.O. 1971, c. 48, s. 2(1).
45See Chiquette v. Procureur Gdndral du Quebec [1974] C.A. 118 for a
confirmation of this. Fortunately, a direct action in nullity would be available
instead of evocation. See Vachon v. A.-G. Qudbec [1979] 1 S.C.R. 555.
‘4 Matsqui Institution Disciplinary Board v. Martineau (No. 2) [1978] 2
F.C. 637, 639 (C.A.). See Mullan, Impact, supra, note 3, 111. A lively and
helpful exchange on this subject is found in a series of three articles: Fera,
Conservatism in the Supervision of Federal Tribunals: The Trial Division of
the Federal Court Considered (1976) 22 McGill LJ. 234; Evans, The Trial
Division of the Federal Court: An Addendum (1977) 23 McGill LJ. 132; Fera,
Certiorari in the Federal Court and Other Matters: A Reply to the “Adden-
dum” (1977) 23 McGiU L . 497.
McGILL LAW JOURNAL
than certiorari, he would not have encountered the same procedural
barrier.4 7
A second problem concerned the Federal Court Act, the statute
a prisoner seeking review of a sentence
under which Martineau –
of punitive isolation imposed by the prison Disciplinary Board –
had to make his application. Even if the rest of the common law
world were to abandon the strict distinction between administrative
and quasi-judicial matters, Canada could not at the present because
the distinction is enshrined in section 28 of the Federal Court Act.
That section confers on the Appeal Division of the Federal Court
jurisdiction over review of all decisions of a judicial or quasi-
judicial nature, leaving review of administrative matters to the
Trial Division under section 18. Martineau had been denied his
original application under section 28 when the Supreme Court ruled
that the action of the Disciplinary Board was merely adminis-
trative.48 Section 18 of the Act specifies that the Trial Division
can issue certiorari. The result of the Court of Appeal’s decision
on Martineau’s application under section 18 led to this conundrum:
certiorari was available only for quasi-judicial matters, yet section
28 excludes those matters from review in the Trial Division. Thus
certiorari could never issue from the Trial Division, and the re-
ference to it in section 18 is without meaning9
Fortunately, the Supreme Court judgment overturned this reason-
ing.” In the majority opinion, Mr Justice Pigeon recognized what
appears to be the logical solution, that
certiorari should be
available for challenges to purely administrative decisions on the
grounds of fairness.” A concurring minority opinion by Mr Justice
47The reason why the Court was unable to grant a declaration in lieu of
certiorari is found in the view expressed by Addy J. in B. v. Dept of Man-
power & Immigration [19751 2 F.C. 602
that declaration had to
commence by statement of claim rather than by motion.
48 Martineau & Butters v. Matsqui Institution Inmate Disciplinary Board
[1978] 1 S.C.R. 118. This case turned on the words “by law” in s. 28. See also
Hardayal, supra, note 2; Howarth, supra, note 14; and Mitchell, supra, note 14.
49At this point, a statement by Mr Justice Dickson in M.N.R. v. Coopers
& Lybrand, supra, note 33, 501 seems to hold out the only hope for review-
ability: “Accordingly, administrative decisions must be divided between those
which are reviewable, by certiorari, or by s. 28 application or otherwise,
and those which are non-reviewable”. The “‘otherwise” remains unexplained.
5oSupra, note 8.
51 “[T]he Federal Court of Appeal … did not accept that the common law
remedy of certiorari may be available in the case of violation of the duty
to act fairly in an administrative decision … . With respect, I cannot agree
with this view”: ibid., Reasons for Judgment, 4-5. See also Mullan, Impact,
supra, note 3, 102, n. 31.
Dickson went even further by adopting the English view of certiorari
as an expanding remedy.5*’ He added:
In my opinion, certiorari avails as a remedy wherever a public body has
power to decide any matter affecting the rights, interests, property,
privileges, or liberties of any person. 53
The implication is that the distinction between administrative and
quasi-judicial matters should lose its significance, apart from the
question of court jurisdiction imposed by statute.
The peculiar drafting of sections 18 and 28 of the Federal Court
Act has played a large role in all the “hard-line” decisions of the
Supreme Court in the past six years.- In Martineau (No. 2), the
Supreme Court has indicated that the Act’s drafting will no longer
serve to deny all recourse to deserving applicants. Combined with
the Court’s liberal stance when not dealing with the Act,5″ it is now
arguable that Canadian law is in essence as progressive as its British
and Australian counterparts.
The Nicholson decision has the potential to usher in a new era
in Canadian law. Whether that potential will be realized, or whether
the case will become, like Drybones,”6 a historical footnote, depends
of course on its future treatment by the judiciary. The initial
reaction of the lower courts has been mixed. The Ontario Divisional
Court has unreservedly accepted the Nicholson principle,57 but other
courts have demonstrated a disturbing tendency to minimize its
effects. This has been achieved by reducing the content of fairness
to something much
in one
case, by linking fairness to the old distinction between rights and
privileges –
that is, by finding that fairness is available only where
a right has been affected5 The majority opinion in Martineau
52 Supra, note 8, Reasons for Judgment, 12-19.
3 Ibid., 19.
54 E.g., Howarth, supra, note 14; Mitchell, supra, note 14.
55 E.g., Saulnier v. Qudbec Police Commission [1976] 1 S.C.R. 572; Nicholson,
supra, note 4; Vachon, supra, note 45.
56 R. v. Drybones [1970] S.C.R. 282.
57 Re Peterson & Atkinson (1978) 23 O.R. (2d) 266 (Div. Ct). The Ontario
Court of Appeal quoted Nicholson at length in Re Webb (1978) 22 O.R. (2d)
257, but did not apply it.
56 See Citizens’ Health Action Committee Inc. v. Milk Control Board of
Manitoba [1979] 4 W.W.R. 431 (Man. Q.B.); Bruce & Meadley v. Reynett
[1979] 4 W.W.R. 408 (F.C.T.D.).
59 Siclait v. M.E.I. F.C.T.D. No. T-5569-78, Sept. 24, 1979 (unreported). Note
that this is incompatible with Dickson J.’s judgment in Martineau (No. 2),
supra, note 8.
McGILL LAW JOURNAL
(No. 2) certainly tended more in this cautious direction, but the case
fell short of definitively answering the question.
It is to be hoped that the fairness principle will not be too
greatly fettered. An epoch of government intervention in all areas
of human activity requires more, rather than less, judicial review.
Any marginal loss of administrative efficiency”0 and of judicial
predictability would be more than offset by the gain in justice and
consequent respect for law.
60 See Mullan, Fairness, supra, note 3, 304.
*Of the Faculty of Law, McGill University.