Duty of Fairness

Harrison v. Orillia Soldiers' Memorial Hospital, 2006 CanLII 33670 (ON SCDC)

[24]In Brown and Evans, supra, at 8-20, the authors conclude that a tribunal will generally only be required “otherwise by law to hold a hearing” if the procedural content of the duty of fairness applicable to the tribunal includes the essential aspects of an adjudicative hearing.

[25] The content of the duty of fairness is variable, as the Supreme Court of Canada stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. Its content depends on a number of factors, including the following:

1. the nature of the decision being made;

2. the nature of the statutory scheme;

3. the importance of the decision to the individual or individuals affected;

4. the legitimate expectations of the person challenging the decision; and

5. the choices of procedure made by the agency itself (at paras. 22-27).