January 12, 2019

“Duty of Fairness” – What Does it (Not) Look Like?

One of the first things that comes to many people’s minds when they think about justice is fairness. Here in Canada, we have the right to a fair hearing. Encompassed in the right to a fair hearing is the administrative duty of procedural fairness. The Federal Courts Act states that a decision may be appealed, and relief granted, if a federal board, tribunal or commission failed to observe procedural fairness.

What exactly does that mean? In some cases it means that an applicant is allowed an appeal after they are left lawyerless without notice on the day of their hearing . In other cases it means giving a refugee family another chance to bring their claim forward when they fail to find a lawyer to take their case on short notice. In a recently decided Federal Court case, it meant allowing the appeal of a Refugee and Protection Division (RPD) decision on the grounds that the applicant’s representation was worse than if he had represented himself.

The applicant of the current case arrived in Canada in 2012 to claim refugee status. While he was represented by a licensed paralegal at the time, it was six years before his case even went before the RPD. When he was called to appear in front of the Division in 2018, a pastor stepped up to represent him. Unfortunately for the Applicant, a simple prayer would have been more beneficial for his case.

The so-called representative did not file any paperwork supporting the Applicant’s refugee claim or discussing the poor conditions in Sri Lanka, the applicant’s home country. He did not redirect when questions were asked by the RPD. In final submissions, he decided to discuss his own experience migrating from Sri Lanka, as opposed to summing up any sort of argument. If you want an example of what not to do in front of a tribunal, look to this case.

In review of the RPD’s decision to dismiss the Applicant’s claim, the Federal Court found that this lack of competent counsel breached procedural fairness. In paragraph 16, the Court wrote that “[f]or reasons beyond his control, and for all practical purposes the Applicant, while he might have thought otherwise, in fact had no representative”.

Previous cases such as Costeniuc and Mervilus dealt with a total lack of representation, but this case was successfully appealed on the fact that representation was utterly incompetent. Judge Brown wrote that “while there is no absolute right to counsel, there is a right to a fair proceeding… In my respectful view, the hearing in the case at bar was not fair.”

In all administrative decisions, there is a duty of fairness. Thankfully our justice system has checks and balances to offer remedies when that duty has been breached. Nevertheless, it is good to be reminded every once in a while of what exactly a lack of fairness looks like.

This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.