Duty to be Fair

Last Reviewed: October, 2023 Reviewed by: JES

Administrative tribunals do not have the same level of procedural protections as the courts, but they still have a duty to be fair. Administrative law is greatly concerned with procedural fairness, meaning not looking at whether the outcome itself was fair, but was the process getting to that outcome fair. Procedural fairness does not look the same for every type of administrative decision. Basically, the more important the decision is to the person affected by it, the closer to a court level of fairness is required. At minimum fairness means:

1. The Person Has a Right to Know the Case

A person who is affected by an administrative decision has the right to know the case being made against them and must be given an opportunity to respond. This means that the people impacted by the decision are given reasonable notice that a decision will be made and to know the facts the decision maker is considering.

The people impacted by the administrative decision also have the right to meaningful participation in the process. This usually means they have an opportunity to be heard, present their side of the story or dispute the other side’s story. They should be allowed to present evidence and argument. Depending on the type of decision, this could be done through writing, phone, video or an in-person hearing.

2. Impartial Decision Maker

An impartial decision maker means that the person who decides the case will be unbiased and will make a decision based only on the arguments and evidence present at the hearing. It also means that the decision maker cannot have (or appear to have) any personal connection with the parties or any personal interest in the outcome of the case.

3. The Adjudicator who Hears the Case Makes the Decision

The adjudicator who reads the parties’ submissions or hears the submissions in person at a tribunal hearing must be the person who decides the case. It also means that governmental policies can only be applied if it makes sense in the circumstances of the case. For example, a Workers’ Compensation Board policy to determine a complainant’s average earnings cannot be applied if it doesn’t make sense to apply the policy in that case.

4. Decision Makers Must Give Reasons 

The decision maker must give sufficient reasons for the decision. This helps the parties understand how the adjudicator came to that decision. What amounts to sufficient reasons depends on the type of decision. Generally, the more important the decision, the more thorough the reasons given are and are often in writing.

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