Duty of Fairness

Supreme Court said that the nature of the decision being made and the process followed in making it is to be evaluated. The very closeness of the administrative decisions to the process of judiciary should indicate how much of those governing principles should be imported. The very nature of the statutory scheme and the terms of the statute are very important for making decisions. We have also to consider the effect to the individual or individuals affected. Courts said that the most important decision is to the lives of those affected and the greater its impact on the specific person, the harder are the procedural protections. Furthermore legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances of this case. If there is existence of a legitimate expectation, it will affect the duty of fairness owed to the individual or individuals affected by the decision. It is always good to take into account and respect the choices of procedure made by the body themselves, particularly when it’s left to the decision-maker the ability to choose its own procedures under the statute. Even if the duty of procedural fairness that would otherwise be applicable is effected by the existence of a legitimate expectation based upon the text of the articles of the Convention (on the rights of the Child) and the fact that Canada has ratified it (but has not entered as domestic law).

There is no legitimate expectation which can affect the content of the duty of fairness. Even if taking into account the other factors related to the determination of the method of the duty of fairness, the ignorance to give oral hearing and give notice was considered important. A Hu...

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...ion if decision was unreasonable should focus on the issues arising from the serious question of general importance (question of the approach to be taken to the interests of children). The Judge states that approach taken to the children’s interests shows that the decision was unreasonable. The officer was completely dismissive of the interest of the children. Furthermore reasons of immigration officer show that his decision was inconsistent with the values underlying the grant of discretion and did not stand up to the somewhat probing examination required by the standard of reasonableness. A reasonable exercise of the power conferred requires closed attention to the and needs of the children and their dependency. The fact that the officer did not consider the children it was an unreasonable exercise of the power conferred by the legislation and must be overturned.