Nicholson was a second-class constable with the respondent police commission. He was let go during his probationary period and not given any prior notice of his termination or provided with any reasons for the decision. There was a section in the governing Police Act (now replaced by the Police Services Act) that required the Commission to provide a hearing for dismissal where the officer was employed for more than 18 months, however Nicholson was let go prior to the end of his 18 month probation. Nicholson argued that despite the timeframe he was still entitled to at least some procedural fairness.
- What is the threshold for some common law procedural fairness to apply when no statutory fairness applies?
Chief Justice Laskin writes that although Nicholson is clearly not entitled to the same amount of procedure that an officer employed for more than 18 months is entitled to, he must still be treated fairly and not arbitrarily. Laskin states that in the sphere of administrative law there is a "general duty of fairness" owed to claimants. He says that this is grounded in the idea that differentiating between judicial and administrative decisions is very difficult and it does not make any sense to give some people full procedural protection while the others get nothing at all. Therefore in this case he believes that the minimal required protection means that Nicholson should have at least been given reasons for his dismissal.
Martland, in the dissent, disagrees and argues that the statutory language is clear: if you are not employed for 18 months, then the Commission may terminate your employment without any reasons. This is exactly what happened in this case, which he argues was within the legislature's intent and should not be disturbed.
There is a general common law duty of fairness that always applies in administrative decisions, even where there is a procedural guarantee which does not apply in a given case.