CML 2312 ADMINISTRATIVE LAW Forcese CML 2312 Administrative

CML 2312: ADMINISTRATIVE LAW Forcese CML 2312: Administrative Law (Forcese)

Where do procedural duties come from? The Multiple Sources of Procedural Duties " In the absence of a statutory provision expressly dealing with the quorum required for an application to reopen a decision on the ground that it is vitiated by procedural unfairness, I start from the premise that tribunals are masters of their own procedure and have an implicit discretion over the process by which they discharge their statutory responsibilities“ -- Faghihi v. Canada, Federal Court CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Origin of Procedural Duties

Why are procedural obligations important? Procedural fairness and liberty “. . . procedural fairness and regularity are the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. ” -- Justice Jackson, USSC CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Origin of Procedural Duties

Historical Background Chronology of Key Cases Key Concepts • Dr. Bentley’s Case (1723) • Cooper v. Board of Works (1855) • Nakkuda Ali v. Jayatatne (1951) • Copithorne v. Calgary Power (SCC) • Canada v. Coopers & Lybrand • Ridge v. Baldwin (1964) • Re H. K. (1967) • Meaning of “Natural Justice” • audi alteram partem & nemo judex • the common law “supplying the omission of the legislature” • the concept of judicial, Quasijudicial and administrative and the “superadded” duty to act judicially • Procedural “fairness” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Origin of Procedural Duties

The UK Position by the time of Nicholson in Canada Chronology of Key Cases Key Concepts • Dr. Bentley’s Case (1723) • Cooper v. Board of Works (1855) • Nakkuda Ali v. Jayatatne (1951) • Copithorne v. Calgary Power (SCC) • Canada v. Coopers & Lybrand • Ridge v. Baldwin (1964) • Re H. K. (1967) “…it is now clearly settled, and is indeed self-evident, that there is no difference between natural justice and 'acting fairly', but that they are alternative names for a single but flexible doctrine whose content may vary according to the nature of the power and the circumstances of the case“ -- Wade CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Origin of Procedural Duties

The Nicholson Revolution in Canada Chronology of Key Cases Key Concepts • Nicholson v. Haldimand Norfolk Police (1979), SCC Implications: 1. Duty of fairness that applies to dismissals from public office 2. There is a due process standard of some sort irrespective of classification of type of delegate 3. Relationship between “natural justice” and “duty of fairness” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Origin of Procedural Duties

The Nicholson Revolution in Canada Chronology of Key Cases Key Concepts • Nicholson v. Haldimand Norfolk Police (1979), SCC • Martineau v. Matsqui (1980), SCC " It is wrong, in my view, to regard natural justice and fairness as distinct and separate standards and to seek to define the procedural content of each… In general, courts ought not to seek to distinguish between the two concepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework. “ -- per Dickson J CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Origin of Procedural Duties

The Nicholson Revolution in Canada Chronology of Key Cases Key Concepts • Nicholson v. Haldimand Norfolk Police (1979), SCC • Martineau v. Matsqui (1980), SCC • Cardinal v. Kent (1985), SCC Implications: 1. Hints as to where a duty to be fair will be triggered 2. Distinguishes between administrative and legislative decisions CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Origin of Procedural Duties

The Knight v. Indian Head “Three Prong Trigger” Chronology of Key Cases Key Concepts • Knight v. Indian Head, SCC The Three Prong Test: 1. the nature of the decision to be made by the administrative body; 2. the relationship existing between that body and the individual; and 3. the effect of that decision on the individual's “rights” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

The Knight v. Indian Head “Three Prong Trigger” Chronology of Key Cases Key Concepts • Knight v. Indian Head, SCC Implications: 1. 2. 3. Provides us with a test for where procedural fairness will be found to exist by the courts Confirms that there is a distinction between something called administrative power and something called legislative power Confirms that should it wish to do so, the legislature can bar procedural fairness by so specifying in the statute CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

The Knight v. Indian Head “Three Prong Trigger” Chronology of Key Cases • • Key Concepts Knight v. Indian Head, SCC Re Abel Re Irvine Dairy Producers Comments on the Three Prongs: 1. Provides us with a test for where procedural fairness will be found to exist by the courts • The issue of “preliminary” decisions CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

The Knight v. Indian Head “Three Prong Trigger” Chronology of Key Cases Key Concepts • Knight v. Indian Head, SCC Comments on the Three Prongs: 2. the relationship existing between that body and the individual • Private voluntary organizations CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

The Knight v. Indian Head “Three Prong Trigger” Chronology of Key Cases Key Concepts • Knight v. Indian Head, SCC • Webb • Hutfield Comments on the Three Prongs: 3. the effect of that decision on the individual's rights • Meaning of “rights” • Fairness exists where rights, interests, property or liberties of the person affected by delegate’s actions CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases Key Concepts • Good administration may demand the observance of fairness wherever the citizen has been given a legitimate expectation that he or she will be treated fairly CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • Old St. Boniface, SCC Key Concepts • Citing Hong Kong v. Ng Yuen Shiu “When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty" CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • Old St. Boniface, SCC Key Concepts • Court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation. CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • Old St. Boniface, SCC • Gaw v. Corrections, FCTD Key Concepts • When a public authority has promised to follow a certain procedure and an interested person relied and acted upon that promise, it is not in the interest of good administration nor is it in the interest of fairness, to disregard that promise and to deal with that person by way of a procedure different from the one the public body committed itself to follow CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • Old St. Boniface, SCC • Gaw v. Corrections, FCTD • Furey, Nfld SC Key Concepts • a party affected by a decision of a public official who has been promised an opportunity to make representations in circumstances where there would otherwise be no opportunity • legitimate expectation creates procedural, not substantive rights CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • • Old St. Boniface, SCC Gaw v. Corrections, FCTD Furey, Nfld SC Libbey v Ontario, ONCA Key Concepts • What is legitimate expectation and where does it arise? • those who deal with government bodies and agencies who wield power for the public good should be able to rely on representations made to them. • the court will intervene by way of judicial review where a public authority attempts to resile from a representation to the detriment of someone who has relied on that representation. CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • • Old St. Boniface, SCC Gaw v. Corrections, FCTD Furey, Nfld SC Libbey v Ontario, ONCA Key Concepts • What is legitimate expectation and where does it arise? • Problem: doctrine is an aspect of procedural due process and not a source of substantive rights • Problem: the existence of a statutory regime dealing with the vacation pay determination CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • • Old St. Boniface, SCC Gaw v. Corrections, FCTD Furey, Nfld SC Libbey v Ontario, ONCA Key Concepts • Even if legitimate expectation applied would the letter be enough? • for there to be a legitimate expectation, there has to be a clear and unequivocal representation by the government authority CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • • • Old St. Boniface, SCC Gaw v. Corrections, FCTD Furey, Nfld SC Libbey v Ontario, ONCA CUPE v. Ontario, SCC Key Concepts “[legitimate expectation] looks to the conduct of a Minister or other public authority in the exercise of a discretionary power including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified, that has induced in the complainants (here the unions) a reasonable expectation that they will retain a benefit or be consulted before a contrary decision is taken. ” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases • • • Key Concepts Old St. Boniface, SCC Gaw v. Corrections, FCTD Furey, Nfld SC Libbey v Ontario, ONCA CUPE v. Ontario, SCC Mount Sinai, per Binne J at SCC • Legitimate expectation and public law promissory estoppel • The party relying on the doctrine [of promissory estoppel] must establish that the other party has, [1] by words or conduct, made a promise or assurance [2] which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, [3] in reliance on the representation, [4] he acted on it or in some way changed his position. … [T]he promise must be unambiguous but could be inferred from circumstances. CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Legitimate Expectation: What worth a promise? Chronology of Key Cases Key Concepts • Summary: 1. A promise or representation from a delegate 2. To proceed in a certain fashion 3. (possibly) Resulting in detriment when promise is broken to a person who relied on the promise • Does not apply to: 1. Legislative decision 2. Promises that conflict with statutory duties CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases • Martineau, SCC Key Concepts “A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases Key Concepts • De Smith “A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice. ” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases Key Concepts • Inuit Tapirisat 64(1) The Governor in Council may at any time, in his discretion, either upon petition of any party, person or company interested, or of his own motion, and without any petition or application, vary or rescind any order, decision, rule or regulation of the Commission, whether such order or decision is made inter partes or otherwise, and whether such regulation is general or limited in its scope and application; and any order that the Governor in Council may make with respect thereto is binding upon the Commission and upon all parties. CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases Key Concepts • Inuit Tapirisat • Citing Bates v. Lord Hailsham: 64(1) The Governor in Council may at any time, in his discretion, either upon petition of any party, person or company interested, or of his own motion, and without any petition or application, vary or rescind any order, decision, rule or regulation of the Commission, whether such order or decision is made inter partes or otherwise, and whether such regulation is general or limited in its scope and application; and any order that the Governor in Council may make with respect thereto is binding upon the Commission and upon all parties. “[Common law due process] considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy. . . I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend … insufficient time for consultation …” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases Key Concepts • Inuit Tapirisat • Core holding: • where the executive branch has 64(1) The Governor in Council may at any time, in his discretion, either been assigned a function upon petition of any party, person or performable in the past by the company interested, or of his own motion, and without any petition or Legislature itself and where the application, vary or rescind any order, subject matter of the case is not decision, rule or regulation of the Commission, whether such order or an individual concern, the decision is made inter partes or considerations are different otherwise, and whether such regulation is general or limited in its from those the court dealt with scope and application; and any order in Nicholson that the Governor in Council may make with respect thereto is binding upon the Commission and upon all parties. CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases Key Concepts • Inuit Tapirisat • Implications: Little unclear, with 64(1) The Governor in Council may at several possibilities: any time, in his discretion, either • Rulemaking and all upon petition of any party, person or discretionary powers not company interested, or of his own motion, and without any petition or subject to procedural fairness? application, vary or rescind any order, decision, rule or regulation of the • Discretion exercised by Cabinet Commission, whether such order or not subject to procedural decision is made inter partes or otherwise, and whether such fairness? regulation is general or limited in its • Certain sort of broad, policyscope and application; and any order that the Governor in Council may based discretion excluded from make with respect thereto is binding procedural fairness? upon the Commission and upon all parties. CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases • Inuit Tapirisat • NAPO, FCA Key Concepts • matter of public convenience or matter of private convenience? • Court of Appeal: “The fact that some advantage might flow from that decision in favour of BCI could not, in my view, alter its true nature so as to render it a matter of private convenience falling outside the Governor in Council's subsection 64(1) mandate of varying or rescinding the CRTC's earlier determination. ” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases • Inuit Tapirisat • NAPO, FCA Key Concepts • Implications: • Not all discretion exercised by Cabinet will be considered “legislative” and immune from procedural fairness CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases • Inuit Tapirisat • NAPO, FCA Key Concepts • E. g. , • Canadian Shipowners Associations, FCTD (1995) • the more personal the issue, the more likely Cabinet’s power of review is to lose its legislative nature and the more the principle of fairness mentioned in Nicholson becomes applicable. CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases • Inuit Tapirisat • NAPO, FCA Key Concepts • E. g. , • Canadian Association of Regulated Importers, FCTD, 1994: “traditionally a decision has been classified as being of a legislative nature if it sets out general rules which apply to a large number of persons. This is counterpoised to a decision respecting one specific individual”. CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases • Inuit Tapirisat • NAPO, FCA Key Concepts • Definition of “legislative”: Vancouver Island, FCTD: ”[T]he decision must be discretionary, usually, but not always, general in its application, based on the exercise of judgment after assessing factors of general policy, of public interest and public convenience, morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns, that is, issues of policy which lie outside the ambit of typical concerns or methods of the courts. " CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases Key Concepts • Inuit Tapirisat • NAPO, FCA • Canada Assistance Plan, SCC • the concept of a “legislative” decision is also applicable to the legitimate expectation trigger for procedural fairness CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases Key Concepts • A typology of “legislative” decisions: Type 1: Broad, policy-based power • usually discretionary, general in application, based on exercise of judgement considering general policy CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

“Legislative” vs. “Administrative” Decisions: The Classification Game! Chronology of Key Cases Key Concepts • A typology of “legislative” decisions: Type 2: Rule-making • Must rule-making also be “general in application”? • Homex (SCC): by-law made with immediate and specific target in mind CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Emergencies: We don’t have time to talk! Chronology of Key Cases Key Concepts • e. g. , • Re Walpole Island First Nation (1996) (Div. Ct. ) • emergency character of decision placed it beyond reach of procedural fairness CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases Key Concepts • “everyone” • “life, liberty and security of the person” • “fundamental justice” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA Key Concepts "…the standard of what is required to satisfy [s. 7] in its procedural sense. . . is not necessarily the most sophisticated or elaborate or perfect procedure imaginable but only that of a procedure that is fundamentally just. What that may require will no doubt vary with the particular situation and the nature of the particular case. ” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases Key Concepts • Sample cases: • Howard, FCA • Gallant, FCA CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC Key Concepts "I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions. " CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC • Dehghani, SCC Key Concepts The concern with administrative expediency CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC • Dehghani, SCC Key Concepts The concern with administrative expediency CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC • Dehghani, SCC Key Concepts Summary: 1. Trigger: deprivation of life, liberty & security of the person 2. Content of fundamental justice: • at very least, means procedural fairness or natural justice • precise content will vary depending on circumstances • Caveats: 1. Fundamental justice constitutional 2. Fundamental justice may demand more than procedural fairness CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC • Dehghani, SCC • Charkaoui, SCC • Suresh, SCC Key Concepts Summary: 1. Trigger: deprivation of life, liberty & security of the person 2. Content of fundamental justice: • at very least, means procedural fairness or natural justice • precise content will vary depending on circumstances • Caveats: 1. Fundamental justice constitutional 2. Fundamental justice may demand more than procedural fairness CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC • Dehghani, SCC • Charkaoui, SCC • Suresh, SCC • Blencoe, SCC Key Concepts Security of the person protects against only “serious psychological incursions resulting from state interference with an individual interest of fundamental importance” and “it is only in exceptional cases where the state interferes in profoundly intimate and personal choices of an individual that state-caused delay in human rights proceedings could trigger the s. 7 security of the person interest” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC • Dehghani, SCC • Charkaoui, SCC • Suresh, SCC • Blencoe, SCC Key Concepts Summary: 1. Trigger: deprivation of life, liberty & security of the person 2. Content of fundamental justice: • at very least, means procedural fairness or natural justice • precise content will vary depending on circumstances • Caveats: 1. Fundamental justice constitutional 2. Fundamental justice may demand more than procedural fairness CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC • Dehghani, SCC • Charkaoui, SCC • Suresh, SCC • Blencoe, SCC • Wells, SCC Key Concepts Footnote question: can fundamental justice control the process by which Parliament passes laws? “. . . legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate. The judgment in Reference re Canada Assistance Plan. . . was conclusive on this point in stating that: "the rules governing procedural fairness do not apply to a body exercising purely legislative functions". CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Charter of Rights and Freedoms Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice" Chronology of Key Cases • Sample cases: • Howard, FCA • Gallant, FCA • Singh, SCC • Dehghani, SCC • Charkaoui, SCC • Suresh, SCC • Blencoe, SCC • Wells, SCC • Aurthorson, SCC Key Concepts Footnote question: can fundamental justice control the process by which Parliament passes laws? “Long-standing parliamentary tradition makes it clear that the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislation within Parliament's competence is unassailable. ” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases Key Concepts 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared… CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases Key Concepts 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; … CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases Key Concepts 2. …no law of Canada shall be construed or applied so as to (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases Key Concepts 1. (a): • Who can rely on this section? • “Individuals” • What are the triggers? • Deprivation of right to life, liberty, security of the person and enjoyment of property • What procedural guarantees must be met? • “Due process of law” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases Key Concepts • Sample cases: • Smith, Kline & French Laboratories, FCTD 1. (a): “Due process requires, in addition to a fair hearing, a total process which provides, for the making of a decision authorized by law, a means for rationally relating the facts in the case to criteria legally prescribed by Parliament. ” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases • Sample cases: Key Concepts 2. (e): • Who can rely on this section? • “Persons” • What are the triggers? • When rights and obligations being determined • What procedural guarantees must be met? • Fair hearing in accordance with the principles of fundamental justice CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases Key Concepts • Sample cases: • Singh, per Beetz J. , SCC 2. (e): "the most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned" CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases Key Concepts 2. (e): • Sample cases: • Singh, per Beetz J. , SCC • Canada v. Central Cartage, “The fair hearing guaranteed in FCC paragraph 2(e) of the Bill of Rights is not a frozen concept that remains static. … In other words, the guarantee of a fair hearing in paragraph 2(e) should be given a meaning that recognizes not only the interpretation and evolution of the term over time but also the particular circumstances involved. ” CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

Bill of Rights Chronology of Key Cases Key Concepts • Sample cases: • Singh, per Beetz J. , SCC • Canada v. Central Cartage, FCC • 785072 Ontario Inc. , FCTD CML 2312: Administrative Law (Forcese) PROCEDURAL OBLIGATIONS Trigger for Procedural Duties

What variables drive content? Chronology of Key Cases • Gallant, FCA Key Concepts …when it is said that the rules of natural justice and of fairness are flexible and vary from case to case [this means] that the same general rule will produce different results if it is applied to different factual contexts. In that sense, it can be said that natural justice may or may not, according to the circumstances, require an oral hearing; this is so because, in certain circumstances, it may be impossible for a person to answer adequately the case made against him, unless he is heard orally. The requirement of natural justice always remains the same: that the person concerned be given a fair opportunity to be heard. The consequences of the application of this basic requirement vary, however, with the circumstances. CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Content Varies with the Circumstances

What variables drive content? Chronology of Key Cases • Gallant, FCA Key Concepts …when it is said that the rules of natural justice and of fairness are flexible and vary from case to case [this means] that the same general rule will produce different results if it is applied to different factual contexts. In that sense, it can be said that natural justice may or may not, according to the circumstances, require an oral hearing; this is so because, in certain circumstances, it may be impossible for a person to answer adequately the case made against him, unless he is heard orally. The requirement of natural justice always remains the same: that the person concerned be given a fair opportunity to be heard. The consequences of the application of this basic requirement vary, however, with the circumstances. CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Content Varies with the Circumstances

What variables drive content? Chronology of Key Cases Key Concepts General Observations: 1. the more the delegate's decision making function looks like a criminal or civil proceeding, the more the courts will insist on a strict array of procedural protections 2. the more significant the rights or interests affected, the more likely the courts are to require a higher level of procedure 3. the procedural rules imposed should be applied so as to not frustrate a delegate's attempts to carry out its statutory obligations CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Content Varies with the Circumstances

What variables drive content? Chronology of Key Cases • Baker, SCC • Suresh, SCC Key Concepts Baker Test: 1. Nature of the decision and the process followed in making it 2. The nature of the statutory scheme 3. The importance of the decision to the affected party 4. Any legitimate expectations of the party 5. The choice of procedure made by the agency itself CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Content Varies with the Circumstances

The Precise Meaning of Audi Alteram (in Context) Chronology of Key Cases Key Concepts At the most basic level, audi alteram partem means: Delegates must always give a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to those parties CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context) Chronology of Key Cases Key Concepts For the “right to be heard” to be real: • there is a duty on all delegates who are subject to procedural fairness to give sufficient notice of the decision • in giving notice, there must be enough detail about the decision and the arguments and evidence that interested parties can make a meaningful submission of their own • interested parties must have an opportunity to make submissions CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Notice Chronology of Key Cases • Central Ontario Coalition Key Concepts • notice required because property rights and interests of public affected • test of whether notice adequate objective: reasonable person standard • Referred to the wrong region of Ontario • Geographic description too vague CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Notice Chronology of Key Cases • Central Ontario Coalition Key Concepts • Notice requirement • Must give accurate description of the true nature and scope of the decision (see e. g. , Crevier Commission case) • Must be timely • Failure to give adequate notice can void the delegate’s decision CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Disclosure Chronology of Key Cases • • Key Concepts Ciba Geigy, FCA May v. Ferndale, SCC Chiarelli and Ruby, SCC Charkaoui I and Charkaoui II, SCC • Disclosure and the idea of a “spectrum” that balances different considerations • No direct application of criminal standard • . . . but when the consequences are serious enough basically amounts to a very robust disclosure requirement CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Disclosure Chronology of Key Cases Key Concepts • Canada Evidence Act • Privileges CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Delay and Abuse of Process Chronology of Key Cases • Blencoe, SCC Key Concepts • unacceptable delays may at some point amount to an abuse of process, even when the fairness of the hearing process itself has not be compromised • delay must be so oppressive as to taint the very proceeding (and the delay must be causally related to the oppression) CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Nature of the Hearing Chronology of Key Cases • • Khan, OCA Singh, SCC Hundal, BCCA Masters, (On Div Ct) Key Concepts • Examples from the caselaw: Oral hearings more likely where: 1. the credibility of the parties is a factor in the outcome 2. the affected person's level of education or lack of familiarity with the proceedings affects his or her ability to make written submissions 3. Charter or Bill of Rights interests are at stake CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Right to Counsel Chronology of Key Cases Key Concepts • no universal right to representation in oral hearings before delegates • counsel more likely to be required by procedural fairness: 1. the more complex the legal issues, the more likely a court will require counsel 2. the more serious the consequences, the more likely the court will require counsel 3. the less capable the person is of representing themselves, the more likely the court will require counsel CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Witnesses and Evidence Chronology of Key Cases Key Concepts • Issue 1: Who can call witnesses? • Issue 2: Cross-examination of witnesses • Innisfil (1981), SCC: “…it is not a necessary ingredient of natural justice that one who has submitted relevant evidence in writing or ex parte must be produced for cross-examination, provided that the evidence is disclosed an adequate opportunity is given to reply to it. ” • Cross exam generally occurs in adversarial proceedings where credibility is at issue CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Witnesses and Evidence Chronology of Key Cases Key Concepts • Issue 3: Rules of Evidence • Delegates need not apply strict rules of evidence, unless required by statute/regs • Must be evidence • Admissibility • Weight (Bond v. NB) • Burden of proof CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Reasons Chronology of Key Cases Key Concepts • Why would we want reasons? • How are reasons relevant to fairness? • Is there a duty to give reasons? CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Reasons Chronology of Key Cases Baker, SCC Key Concepts • Is there a duty to give reasons? • the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Reasons Chronology of Key Cases Baker, SCC Key Concepts • Is there a duty to give reasons? • It is now appropriate to recognize that, in certain circumstances, including when the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision. CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Reasons Chronology of Key Cases Via Rail, FCA Key Concepts • Is there a duty to give reasons? • the decision-maker must set out its finding of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out and must reflect consideration of the relevant factors CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): Reasons Chronology of Key Cases Dunsmuir, SCC Key Concepts • Reasons and substantive review? • “reasonableness” requires justification, transparency and intelligibility in the decision making process CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): He or she who hears must decide Chronology of Key Cases Patel, FCTD Consolidated Bathurst, SCC Ellis Don, SCC Footnote: Tremblay, SCC Key Concepts • corollary of the right to be heard is the right to have it decided by those to whom it was presented • the whole purpose of the right to present one's case is defeated if the decision is made or influenced by persons who have not heard the evidence and argument CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): He or she who hears must decide Chronology of Key Cases Consolidated Bathurst, SCC Ellis Don, SCC Key Concepts • Consultation among board members: • The full board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties. • For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues. CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): He or she who hears must decide Chronology of Key Cases Armstrong, FCA Key Concepts • Use of lawyers and staff: • a tribunal is generally free to use a lawyer unless this practice is prohibited by statute • however, the lawyer's involvement must not create the impression that he or she had taken over the hearing and become the effective decisionmaker CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

The Precise Meaning of Audi Alteram (in Context): He or she who hears must decide Chronology of Key Cases Armstrong, FCA Key Concepts “…the principle of natural justice requires that factual information within the knowledge of a tribunal be disclosed to the parties for comment and rebuttal if it will be relied on in reaching a decision. However, it is open to a tribunal to use (and not disclose) its accumulated background or experience, skill and specialized knowledge in analysing and evaluating the evidence properly presented to it. ” CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Audi Alteram

Nemo Judex: The Right to an Unbiased Decision Maker Chronology of Key Cases Key Concepts • Two components: • Personal bias: Partial state of mind • Institutional bias: Lack of independent institutional arrangements CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and Personal Bias Chronology of Key Cases Key Concepts National Energy Board, SCC, dissent • Classic test: “. . . the 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. . . [T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he [or she] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. " CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and Personal Bias Chronology of Key Cases Key Concepts National Energy Board, SCC, dissent Old St. Boniface, SCC • Variability in the test for matters of “prejudgment”? “The Legislature could not have intended that the rule requiring a tribunal to be free of an appearance of bias apply to members of Council with the same force as in the case of other tribunals whose character and functions more closely resemble those of a court. “ CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and Personal Bias Chronology of Key Cases Key Concepts National Energy Board, SCC, dissent Old St. Boniface, SCC Save Richmond Farm, SCC • Variability in the test for matters of “prejudgment”? “A member of a municipal council is not disqualified by reason of his bias unless he or she has prejudged the matter to be decided to the extent that he or she is no longer capable of being persuaded“ CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and Personal Bias Chronology of Key Cases Key Concepts National Energy Board, SCC, dissent Old St. Boniface, SCC Save Richmond Farm, SCC Newfoundland Telephone, SCC • Variability in the test for matters of “prejudgment”? • A member of a municipal council is not disqualified by reason - adjudicative bodies are expected to comply with the standard applicable to courts: no reasonable apprehension of bias with regard to their decision. • Boards with popularly elected members or policy board will have standards which are more lenient. (i. e. prejudgment in the matter to such an extent that any representations to the contrary would be futile. ) CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and Personal Bias Chronology of Key Cases Dulmage, Ont. Div. Ct. Great Atlantic, Ont. Div. Ct. Large, Ont. Div. Ct. Key Concepts • Forms of Personal Bias • Prejudgment (actual) and prejudgment (“by ideology”) CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and Personal Bias Chronology of Key Cases Energy Probe, FC and FCA Key Concepts • Forms of Personal Bias • Prejudgment (actual) and prejudgment (“by ideology”) • Personal relationships • Past involvement • Pecuniary interests • How direct and immediate is the interest? CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and “Institutional” Bias Chronology of Key Cases Energy Probe, FC and FCA Key Concepts • Two possibilities: 1. institutional bias stemming from the behaviour or one or more members of a board (“corporate taint”) 2. Institutional bias stemming from the very structure of the board that has nothing to do with the words or actions of a board member (“lack of independence”) CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and “Institutional” Bias Chronology of Key Cases Manning, OCA Key Concepts • “Corporate taint” doubtful concept: bias is a lack of neutrality by an individual; no authority for the proposition that there could be bias by a corporate taint CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and “Institutional” Bias Chronology of Key Cases 2747 -3174 Quebec v. Regie Key Concepts • “Lack of independence”: “whether a well informed person, viewing the matter realistically and practically- and having thought the matter through -- would have a reasonable apprehension of bias in a substantial number of cases” CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and “Institutional” Bias Chronology of Key Cases 2747 -3174 Quebec v. Regie Key Concepts • Indicators of lack of independence: • Some cases focus on “functional” problems: (1) where the decision maker carried out more than one function within a particular case (2) where the tribunal’s staff is employed in a way that gives right to bias concerns (3) where a party has an institutional role in the proceeding that might be thought to bias the outcome (4) where the tribunal might be thought to have a financial interest in a particular outcome (5) where a tribunal engages in improper internal consultations before the final determination CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Nemo Judex and “Institutional” Bias Chronology of Key Cases 2747 -3174 Quebec v. Regie Key Concepts • indicators of lack of independence: • Some cases focus on indicators such as security of tenure, financial security and institutional independence (see Matsqui, per Lamer) CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Ontario Statutory Powers Procedures Act Components Key Concepts • Application: applies to all tribunals exercising statutory powers of decision which are required by or under their creating Acts or otherwise of law to hold a hearing for affected parties before reaching their decisions CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Statutory Procedural Duties

Ontario Statutory Powers Procedures Act Components Key Concepts • “tribunals” • “Exercising a statutory power of decision” • a power or right, conferred by or under a statute, to make a decision deciding or prescribing, (a) (b) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not • Application: applies to all tribunals exercising statutory powers of decision which are required by or under their creating Acts or otherwise of law to hold a hearing for affected parties before reaching their decisions CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Statutory Procedural Duties

Ontario Statutory Powers Procedures Act Components Key Concepts • required by or under their creating Acts to hold a hearing for affected parties before reaching their decisions OR • required otherwise by law to hold a hearing for affected parties before reaching their decisions • Application: applies to all tribunals exercising statutory powers of decision which are required by or under their creating Acts or otherwise of law to hold a hearing for affected parties before reaching their decisions CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Statutory Procedural Duties

Ontario Statutory Powers Procedures Act Components Key Concepts • Content: • Notice • Hearings • Right to counsel • Witnesses & Cross-Exam • Evidence • Disclosure • Decisions & Reasons CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Nemo Judex

Summary of the Three Question Approach Components Key Concepts 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? CML 2312: Administrative Law (Forcese) CONTENT OF PROCEDURAL OBLIGATIONS Review