Ms. Baker was a Jamaican who had lived in Canada for 11 years and had had four children while living in Canada. Eventually she was diagnosed with schizophrenia and applied for welfare. Under s. 114(2) of the Immigration Act (now replaced with s. 25(1) of the Immigration and Refugee Protection Act) the Minister had the authority to admit anyone to Canada where they were satisfied, owing to humanitarian and compassionate grounds, that admission should be allowed where it otherwise would not be allowed. The government rejected her application, and started procedures to deport her as she had been living in Canada illegally. She tried everything but failed, and requested compassionate leave. Citizenship and Immigration Canada denied the request and provided no reasons for the decision to refuse Baker's application for a discretionary admission to Canada. Baker's counsel eventually obtained notes made by an officer at CIC who classified her case as a "catastrophe" and seemed rather biased against her application. There were guidelines for exercising the discretionary power, and they were also available to the public.
Baker alleged that she was not accorded procedural fairness. She argued that her case required an oral interview with the decision maker, notice to her children and the other parent, a right for the children and other parent to partake in the interview, and notice of the right to have counsel present in the interview. Further, she alleged that the decision maker was required to give reasons for his decision, and that the aide's notes gave rise to a reasonable apprehension of bias.
The Federal Court dismissed an application for judicial review but certified the following question: "Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the UN Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?” The Federal Court of Appeal limited its consideration to the question and found that the best interests of the children did not need to be given primacy in assessing such an application, which Baker appealed.
- What do you consider when determining the amount of procedure that a particular decision requires?
- What is the test for a reasonable apprehension of bias?
- How do you determine the appropriate standard of review with discretionary powers?
- How does the pragmatic and functional approach work?
L’Heureux-Dubé, writing for the majority, relied heavily on the fact that Canada had signed a UN treaty for children's rights which stated that children's interests should always be paramount. The fact that the decision-maker here did not give the children's interests enough consideration plays a large part in her decision to allow the appeal.
The wording of the section clearly indicates that the Minister has wide discretionary powers which points to a deferential standard of review. Historically, discretionary powers were treated differently than other administrated decisions, and they were only overturned if the decision maker acted in bad faith or used irrelevant considerations. However, as in Roncarelli v Duplessis, the court recognizes that these types of decisions cannot be shielded entirely from judicial review – they must at least meet with the requirements of the rule of law and the Charter.
Overall, although discretionary decisions are generally given considerable deference, the discretion must be exercised in accordance with the boundaries imposed by the statute, the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the values in the Charter. This should guide the application of the pragmatic and functional approach.
There is no privative clause, however, judicial review requires leave from the Federal Court which points to a small amount of deference. The fact that the formal decision maker is the Minister, who presumably has expertise, indicates that deference should be paid to the decision. The purpose of the section involves the application of general legal principles, which points to deference as well. The nature of the question is also very fact dependent, which points strongly to deference.
Overall, the appropriate standard is reasonableness simpliciter. L’Heureux-Dubé decides that the Minister's decision was unreasonable because as it did not consider the children's interests enough – this is incompatible with the purpose of the Act (which requires a broad interpretation), international law (the Convention on the Rights of the Child), and the guidelines that the Minister was supposed to follow, and thus allows the appeal.
Turning to the level of procedure required for a decision, L'Heureux-Dubé sets out five factors:
- The court must consider the nature of the decision being made and the process followed in making it. The closeness of the administrative process to the judicial process indicates that more procedure is required.
- The court must consider the nature of the statutory scheme and the terms of the statute pursuant to which the body operates. Greater procedural protections are required when no appeal is provided, or when the decision is determinative of the issue.
- The court must consider the importance of the decision to the individual(s) affected. The more important the decision to the lives of those affected and the greater its impact on those people, the more stringent the procedural requirements will be.
- The court must consider the legitimate expectations of the person challenging the decision. This step considers the administrative decision maker's regular practices – they cannot backtrack on substantive promises previously made without according significant other procedural rights.
- Finally, the court must consider the choices of procedure made by the administrative decision maker itself. When a statute gives a decision maker considerable deference to set its own procedure, this will indicate less stringent procedural requirements. This factor is not determinative.
This list is not intended to be exhaustive and other factors might also be important. Importantly, the values underlying the duty of procedural fairness relate to the principle that the individual, or individuals, affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decision.
In relation to Baker's specific claims, after balancing the factors above, L'Heureux-Dubé finds that Baker is owed "more than minimal" procedural fairness in relation to her participatory rights. This decision is very different from the judicial process, and its role within the statutory scheme is an exception. It is not the Minister's practice to grant interviews to applicants in these circumstances, and the Minister is given considerable deference to create its own procedure. These point to more relaxed requirements for procedure. However, the decision is extremely important to Baker, which points to stricter procedural requirements. She acknowledges that oral hearings are not always required for these types of cases; therefore Baker's participatory rights were not violated unfairly in this case.
In terms of requiring reasons, she holds that the common law has traditionally not required decisions to be given as an aspect of the duty of fairness. However, reasons are very useful for reviewing courts upon appeal, and help participants feel that they were treated more fairly. On the other hand, they might lead to increased costs and delays. Therefore, the Court finds that these types of decision require reasons in some instances – however, the aide's notes satisfied this requirement in this case.
Finally, in relation to the claim for bias, L'Heureux-Dubé adopts the definition for "reasonable apprehension of bias" from Committee for Justice and Liberty v National Energy Board:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude. Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly?
Applying this to the facts at bar, she determines that the aide's notes did create a reasonable apprehension of bias in this case.
- There are five considerations when determining the level of procedure required in a particular decision:
- Nature of the decision
- Function of the decision maker
- Nature of the decision maker
- Matters to be determined
- Process used
- The more judicial the decision, the more procedure required, and the more legislative the decision, the less procedure required.
- Statutory scheme
- Greater procedure is required if there is no administrative appeal available, or if the decision is determinative of the issue (i.e. a final decision).
- Statutory exceptions do not require a great deal of fairness.
- Importance of the interest to the affected party
- The more important the decision, the more procedure required.
- Legitimate expectations
- A decision maker cannot vary from their usual practice without good reason.
- Procedural choices
- The more statutory discretion the decision maker has to create its own procedure, the more weight that will be given to this factor.
- Nature of the decision
- Although discretionary decisions are generally given deference, they must still respect boundaries set by the statute, the Charter, the rule of law, the requirements of administrative law, and the values of Canadian society.
- The values underlying the duty of procedural fairness relate to the principle that the individual, or individuals, affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional, and social context of the decision.
- When deciding what types of interests must be considered in human rights decisions, look to Canada's international obligations.
- The test for a "reasonable apprehension of bias" is what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude (Committee for Justice and Liberty v National Energy Board test).