Why Procedural Fairness Often Feels Scattered

Where the Structure Starts Disappearing

In the previous article, we saw that Canadian Administrative Law does in fact have structure. Once that structure becomes visible, doctrines that once felt disconnected begin to make sense.

But the moment students step into procedural fairness, something unusual happens.

The structure that seemed clear a moment ago suddenly becomes harder to see.

Procedural fairness rarely appears as a single, neatly packaged doctrine. Instead, students encounter multiple ideas that seem to sit in different places across the subject. One concept appears in one context, another somewhere else, and a third later in ways that are not immediately obvious.

The result is a doctrine that often feels scattered.

The General Duty — and Everything That Complicates It

Procedural fairness usually begins with what appears to be a simple proposition: a general duty of fairness owed by public decision-makers.

At first glance, that principle seems easy enough to apply. If an administrative decision affects an individual, fairness should follow.

But the doctrine rarely stops there.

Almost immediately, the analysis begins asking additional questions. What is the nature of the the decision made: administrative / legislative / final / preliminary / investigative? What is the decision’s measure of impact?

Even when these questions appear straightforward on their own, they never operate in isolation. They are surrounded by multi-layered limitations, exceptions and then conditions attached to those exceptions as well.

A decision that seems legislative may still raise fairness concerns in certain circumstances. A process that is still preliminary may still cause troubles. The impact of a decision may interact with the nature of the decision-maker in ways that are not immediately obvious.

Very quickly, the general duty becomes surrounded by qualifications, exceptions, and sometimes even exceptions to those exceptions.

This is why procedural fairness often feels far more complicated in practice than the principle itself suggests.

What is interesting is that these multi-layered qualifications are not limited to just the general duty of fairness. These qualifications extend to almost all aspects of procedural fairness: whether it is any kind of bias, or quantification of procedural fairness under the famous Baker test.

This is why procedural fairness often feels far more complicated in practice than the principle itself suggests.

When One Case Begins Doing Several Things

Another feature that adds to the complexity of procedural fairness is the way the jurisprudence itself develops. Administrative law cases rarely answer just one doctrinal question.

A decision that is often cited for one principle may simultaneously influence several other aspects of the doctrine. The well-known Baker decision, for example, is usually associated with quantification of procedural fairness in a given situation. Yet, the same decision also touches upon issues that may help in determining the decision’s substantive reasonableness under Vavilov.

Similarly, decisions such as Liberty or Mavi, which are often discussed in the context of legitimate expectations, may not operate in isolation. They interact with broader questions about how procedural protections arise, when they may be limited, and how administrative decision-making processes are expected to function.

The result is that different strands of the doctrine begin emerging through the same set of cases.

Students should note that the above are only a few familiar illustrations. Canadian administrative law is shaped by a much larger body of decisions, each contributing its own piece to the development of the doctrine.

This is why students encountering these decisions for the first time find themselves dealing with several doctrinal threads at once. Without a clear way of organizing those threads, it becomes difficult to see how they relate to each other.

Hence, Procedural fairness, in that sense, does not develop as a single line of rules. It evolves through overlapping ideas that gradually shape the doctrine.

Seen this way, the difficulty of procedural fairness does not lie in the individual ideas themselves. Each concept, i.e., notice, hearings, bias, legitimate expectations, and the factors used to quantify fairness, can be understood on its own.

The challenge arises when these ideas begin interacting with one another across a large body of case laws.

At that point, procedural fairness stops appearing as a single doctrine and begins to look like a collection of scattered pieces.

What is important to understand is this: what makes the doctrine manageable again is not memorizing more rules, but seeing how those pieces fit together.

Once the connections become visible, the structure of procedural fairness begins to emerge.

Until then, however, the doctrine remains what it has always appeared to be: complicated.

Where the Discussion Goes Next

Recognizing that procedural fairness appears scattered is only the first step.

The doctrine begins to make more sense once some of its underlying nuances are examined more closely. Many of the concepts that appear simple at first glance reveal additional layers once we look at how they operate in practice.

In the next article, we will begin exploring one such nuance within procedural fairness and why it plays a significant role in shaping how the doctrine actually works.

We would welcome and appreciate your thoughts on whether this discussion adds value, and on the aspects of administrative law you would like to see explored in future articles.

Do get in touch!