Study on Canadian Administrative Law

Added on - 21 Apr 2020

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Running head: CANADIAN ADMINISTRATIVE LAWProcedural FairnessName of the student:Name of the university:Author note
1CANADIAN ADMINISTRATIVE LAWTable of ContentsIntroduction:...............................................................................................................................2Discussion:.................................................................................................................................3Development of procedural fairness:......................................................................................3Present state of law in Canada:...............................................................................................5Procedural fairness obligation:...............................................................................................6Procedural fairness in delegated legislation:..........................................................................8Conclusion:................................................................................................................................8Reference:................................................................................................................................10
2CANADIAN ADMINISTRATIVE LAWIntroduction:The decision making power for the interest of justice are the main objective ofAdministrative law. Procedural fairness and natural justice are the two main mechanisms ofAdministrative law. The term procedural fairness denotes the fair making of administrativedecision1. This law has concentrated on the decision of the judges and the lawmakers. Thefuture of a country is very much depended on the decisions. Therefore, it is required that thedecision should fair in nature. According to Curt Griffiths, the procedural fairness makes theprocess of the decision fair and not act as a substantive fairness. If there is any laxityregarding the procedural fairness in a decision, the affected person may seek for judicialreview2. The Supreme Court of Canada has ruled out certain process regarding the proceduralfairness by stating the flexible character of the administrative process. Jodie Ferguson hasmade an attempt to find out the role of the procedural fairness in the development of thelegislative content and analyse the principle in the light of present state of law in Canada.Certain dilemma are present regarding the process such as the power of the cabinet regardingthe procedural fairness and how the concept affected their decisions3. The position of theprocedural fairness in the delegated legislation has also been discussed.1Ferguson, Jodie L., Pam Scholder Ellen, and William O. Bearden. "Procedural and distributive fairness:Determinants of overall price fairness."Journal of business ethics121.2 (2014): 217-231.2Pierro, Antonio, et al. "Follower need for cognitive closure as moderator of the effectiveness of leaderprocedural fairness."European Journal of Work and Organizational Psychology23.4 (2014): 582-595.3Zhang, Weiyu. "Perceived procedural fairness in deliberation: Predictors and effects."CommunicationResearch42.3 (2015): 345-364.
3CANADIAN ADMINISTRATIVE LAWDiscussion:The central pivot of this discussion is whether the legislative decisions have tomaintain a duty regarding the procedural fairness or not. It has been observed that the lawregarding the administrative process prescribed certain rules regarding the applicability of theprocedural fairness to ensure the justice to all. The main objective of the doctrine is toestablish a fairness provision in the decision so that the justice could not be denied4. It hasbeen decided in the case ofSaeed v Minister for Immigration and Citizenshipthatprocedural fairness is protected by the legal principle and in the words of Mark Aronson, thecourts should have to construe the legislation to establish the existence of procedural fairness.However, in the states of Canada, the rule or policy makers are hesitating to adoptthe doctrine of procedural fairness in case of judicial review. It has been pointed out inNicholson’s case that the application of natural justice is depending on certain things and it ishard to establish the rules of quasi-judicial process in the society. Professor R. A. Macdonaldis also of the view that a dilemma has been cropped up regarding the applicability of theprocedural fairness on the cases of judicial review5.Development of procedural fairness:The approach regarding the fairness is widely approached by Professor DavidMullan. According to him, the court should have to assess the review power with flexibility.He did not categorise the power as judicial or quasi-judicial. He has applied the process ofprocedural fairness on every types of power. He has observed that the judiciary confirmed thepower of procedural fairness upon every official regarding his or her performance in case of4Evans, John M. "Fair's Fair: Judging Administrative Procedures."Canadian Journal of Administrative Law &Practice28.2 (2015): 111.5Aylward, Stephen, and Luisa Ritacca. "In Defence of Administrative Law: Procedural Fairness forAdministrative Monetary Penalties."Canadian Journal of Administrative Law & Practice28.1 (2015): 35.
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