How Much Justice Can You Afford?

The trade-offs involved in designing fair administrative procedures

In the last administrative law class before the extended break into which the present plague forced us (and which is about to come to an end, as we resume teaching ― online), I taught procedural fairness. One of the points I tried to impress on my students is that procedural fairness is (like so much else) a matter of trade-offs. More elaborate procedures meant to ensure that administrative decisions are fair to those whom they affect have benefits ― but they have costs too. The question for those who design the procedures to be followed by a given decision-maker ― legislatures, administrative entities (and their legal advisors!), and eventually courts ― is how to optimize these trade-offs.

This point may bear repeating here. I teach New Zealand law, of course, but the principles and indeed the language of Canadian law of procedural fairness is not very different from those to be found in New Zealand or the United Kingdom. Early Canadian cases on the duty of fairness, notably Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311, referred to a New Zealand appeal decided by the Judicial Committee of the Privy Council, Furnell v Whangarei High Schools Board, [1973] AC 660. The leading Canadian case, Baker v  Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, also draws on UK cases to some extent, rather than treating them as utter heresy, in the way Canadian cases on substantive review, notably Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, treat cases like Anisminic Ltd v Foreign Compensation Commission, [1969] 2 AC 147.

In these (and other) cases, trade-offs tend not to be discussed explicitly, which is why I think this post is warranted, even though its claims should be, I think, fairly obvious. The language used is, rather, that of justice, fairness, doing the right thing, and general warmth and fuzziness. In Furnell, Lord Morris of Borth-y-Gest, for the majority , explained that “natural justice is but fairness writ large and juridically. It has been described as ‘fair play in action’”. (679) The majority in Nicholson adopts this passage, as do a number of other Canadian cases. In Baker, Justice L’Heureux-Dubé writes that

the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [20]

At the same time, however, there is much talk of flexibility. This should be a hint. If the issue were one sided, we would always want to have more fair play, more open procedures, more opportunities for those affected to put forward their views. There would be no need to modulate the duty of fairness; it would be better to maximize it in every case.

And to be, well, fair, to the courts, their recognition of this issue is sometimes explicit. Justice L’Heureux-Dubé’s reference to the “context” of administrative decisions and may well push to expand, as well as to contract, the duty of fairness in a given case. But other judicial statements are less ambiguous. For example, in Cardinal v Director of Kent Institution, [1985] 2 SCR 643, Justice Le Dain insisted that the requirements of fairness he found applicable

are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. (660)

And, more broadly, in a passage from Pearlberg v Varty, quoted in Nicholson, Lord Pearson pointed out that “if there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed”. Such frankness is not always to be found, however. Besides, frank though it is, Lord Pearson’s statement strikes me as still incomplete.

It is true, of course the elaboration of procedural safeguards comes at the cost of efficiency (not necessarily in its technical sense, but simply as speediness) and economy. But not only to the administration. For one thing, the administration here is only a stand-in for government and, in turn, for the voters who mandate it, however indirectly, and for the taxpayers who fund it. So it is worth pondering the fact that the government staffs, and the taxpayers pick up the bill for, the tribunals or other decision-making agencies, and the courts that engage in judicial review. The government, and again the taxpayers, also pay for lawyers who defend administrative decisions. Government officials who provide process for people are also being paid ― and they are taking time out of their schedules that could presumably be used for something else.

But the government and the taxpayers are not the only ones bearing the costs of “the elaboration of procedural safeguards”. So do the affected parties, who are also expending time and resources on process. If you are told that you have a right to be heard and to represented by a lawyer, you’ll want to prepare and to hire a lawyer. That ain’t cheap, in terms of time and money. Each additional opportunity to make submissions, each additional hearing, each additional cross-examination is an invitation to spend more time and money, to say nothing of emotional investment. Administrative decision-making is often said, as for example by the majority in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, to be “speedier and less expensive” than adjudication in the courts. But there is no law of nature that says that this must be so, and even if administrative tribunals have a relative advantage, this does not mean that they achieve speed and affordability in some absolute sense.

So administrative procedures imposed in the name of fairness have costs, some of them falling on the administration itself, and some on those being administered. Of course they do have benefits too, and these benefits are also distributed in ways that the language of judicial decisions does not always make obvious. Of course, an opportunity to be heard to be given a decision that one can accept as consistent with fair play even if unsatisfactory are very important benefits ― benefits that have to do with the value of human dignity, as Jeremy Waldron points out (primarily in relation to courts, but the point generalizes) in “The Rule of Law and the Importance of Procedure“. These benefits that accrue primarily to the parties affected by administrative decisions.

But other benefits that are expected to be provided by more elaborate administrative procedures will accrue more widely. There are good governance benefits, for example, resulting from insofar as administrative procedures leading to more, or better, information being taken into account by decision-makers, and this, in turn, translating into more rounded and sensible decisions being made, into local knowledge displacing or at least supplementing the preconceptions of bureaucratic planners. There are Rule of Law benefits from the laws are enforced in a non-arbitrary way, by non-biased officials ― at least provided that the laws are minimally decent. There are even democratic benefits, insofar as voters want those laws enacted by legislatures to exist and be enforced in accordance with their terms (a big, and often unwarranted assumption, to be sure).

And so, to repeat, the question for those who are in charge of desigining administrative procedures is how to balance the costs and the benefits. One general point is that, as with much else, the marginal cost of “the elaboration of procedure safeguards” goes up, while the marginal benefit that it produces goes down. Some elementary duty to appraise a person subject to an administrative procedure of what is going on and an opportunity to make written submissions is likely not to be especially onerous on the either the administration or the affected party, while providing a substantial gain (in terms of making the affected party feel better, of leading to more accurate decisions, etc) over a bureaucrat deciding on a whim in his or her office. The gain from moving from a written procedure to an oral hearing with lawyers and cross-examination may well be less, though it might still be significant ― in some cases (for example, when credibility is in issue), while the cost may well be greater. The gain from having an appeal procedure is likely to be less still: if the decision-maker at first instance was competent, most of his or her decisions will be acceptable, even if the appellate process can improve on them somewhat. For any given decision, there is a point where the costs of additional process will outweigh the benefits. The trick is to find this point, or something near enough to it.

One cannot, I suspect, meaningfully generalize much beyond that, and the courts are right to emphasize the case-by-case nature of the inquiry into the duty of fairness. Different kinds of decisions will have different costs and benefits. Some parties are better able to bear their share of the costs than others. Some decisions are so routine that additional procedural safeguards will yield little advantage. Some decisions are preliminary and defects can be rectified at a later stage.

The trouble is, to repeat, that costs and benefits are both spread among different people and groups of people. It may be that adding or withholding process will provide benefits to some while imposing costs on others. How to balance that is not obvious, to put it mildly. No one group involved in designing administrative procedures ― legislatures, the administration itself, and the courts ― may have a very good understanding of the impacts of their decisions, although the courts typically consider themselves experts in the matter.

What is more, all come to the design process with their own biases that make them overestimate certain costs or benefits. Legislatures are probably concerned to save money (at least all things being equal; sometimes, they have other interests in mind, as becomes apparent from considering the extraordinarily elaborate procedural scheme for teach discipline that was at issue in Furnell). Administrators probably want to save their time and effort. Both may underappreciate the benefits of procedural safeguards, both to affected parties and to society at large. Meanwhile, courts, insofar as they act at the behest of parties dissatisfied with individual decisions and bound to argue that the procedures followed were insufficiently elaborate may lose sight of the costs ― not only to the administration but also to other affected parties, who are not before them ― of additional procedure. Last but not least, it’s worth keeping in mind that lawyers, collectively, tend to benefit from more process. We are also trained to explain to people why more process is a good thing. And it often is! But we are not entirely disinterested when we say so.

The language of fair play and participation ― important though these things are ― should not lull us into losing sight of the unpleasant realities of administrative procedures. More is not always better. There are costs, and trade-offs. We must ― and can do no more than ― try to find the best balance, case by case, statutory scheme by statutory scheme, and labouring under all the severe limitations to which institutional design generally is subject. We cannot have have it all ― affordability and impartiality, expeditiousness and participation. The New Yorker’s cartoonist J.B. Handelsman, though he probably had a somewhat different issue in mind, put it well.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

9 thoughts on “How Much Justice Can You Afford?”

  1. Very good article Mr Sirota but as a lay person who finds the legal and especially the judicial fraternity over run with dunceness and intellectual incapacity, I wonder how helpful will this article and your efforts be to the said fraternity. I scratch my head everyday at how could some of those person coming out in robes and taking up seat on our Bench, how on earth did they ever get appointed to those positions. I can tell you I estimate that 90 % of this cohort is INCAPABLE of understanding a word of what you say here. Let me tell you how pervasive this dunceness is: A panel of three at Divisional Court recently issued to me a decision that goes like this, since the adjudicator’s decision is reasonable it did not breach your employment contract. Any fool could see the panel put the car before the horse. The dunce adjudicator had “embarked on a process that was totally inconsistent with my contract” (Dunsmuir para something) so that every word that fell from his mouth could only lead to a breach of my contract and I pointed them out many to the court, since the court fell for his every word its decision suffered the same “fatal flaw”. All of that flew right over the heads of the 3 panel members. Imagine this is not a single judge sitting , not one or two but three judges who did not even amount to an average brain. I could go on and on Mr Sirota but just let me say, the biggest justice issue in this country is dunce and dishonest courts. There are many capable members of your fraternity so why are all the goons getting appointed? Until the appointment process is remedied there is no point making these efforts such as you do. The SCC would do well going back to Vavilov immediately, rather than a decade from now and address the dunceness and dishonesty of courts and for instance order that such instances including where decisions are so flawed and outright wrong and ridiculous or even present more than tree issues/grounds, reviewing courts to subject such decisions to full de novo review and standard of correctness and decide them or even straight up refuse to subject parties to these cost of time and money arguing such cases and simply declare them null and void or otherwise unworthy of the courts time and recognition

  2. A particularly interesting and consequential design of an administrative adjudication procedure was the one that resulted in section 13 of the B.C. Labour Relations Code. The result might I suppose be characterized as “elaborate” because the BCLRB has repeatedly undertaken to try to explain it to the self-represented litigants that have to deal with it. In a BCSC judgment issued in January 2003 I was successful (nominally anyway) in challenging the Board’s use of section 13 to dismiss (not once, but twice) a complaint I had filed about the conduct of a local (and the BC regional office) of Canada’s largest union.

    The judgment, of course, merely sent me back to the tribunal. But it became evident that my nominal success had created quite a stir. The BCLRB’s Chair, Brent Mullin, immediately set about writing a response that he would claim, I suppose, was for the benefit of everyone, including all future prospective complainants. Read intelligently though I think what they often simply call the “Judd” decision (it decided nothing so it isn’t in fact a decision) is plainly a diatribe. He had two other Vice Chairs also sign it. I wouldn’t bet that they made any contribution to writing it. For the record I think it’s worth noting one point about this labour law community. One of the co-signatures is that of Jan O’Brien. I don’t believe she was ever a lawyer (and Mullin had said he wanted only lawyers as Vice Chairs). Anyone can find information about her career online. She is married to the current BC premier’s Chief of Staff, Geoff Meggs. You don’t have to be a lawyer to be an insider.

    What would Ms. O’Brien have known about procedural fairness? Section 13 is the opposite of procedural fairness. So I invite you Mr. Sirota, and anyone else who reads this to carefully examine section 13. Maybe I should say dissect it. In order to fully appreciate it you have to read some other sections of the Code, including 128 (3), which says, “The board must make all its decisions in proceedings under this Code available in writing for publication”. Does section 13 entail making a decision? Of course it does. And there’s a very substantial body of section 13 decisions dismissing the complaint. I can’t cite one that, rather than dismiss the complaint, explains why the union is being invited to respond. It’s possible that there are a few somewhere among the decisions issued soon after the Board began applying section 13, but despite some effort I’ve never found any.

    To date the BCLRB Vice Chairs have cited James W.D. Judd in 795 subsequent decisions –

    1. These Boards and tribunals are really taking liberties with the law and the rights of ordinary people. They have no qualms legislating and rewritng law when they find case law inconvenient to their wishes. They are in large part totally failing the purpose of their existence- quick resolution of issues. Instead we have all these judicial reviews that even worse force issues to appeal courts. They are causing mayhem in the justice system. The part of all this that bothers me seriously is why do lawyers sit back and accept this from these hijackers of the justice system and people’s rights. The ones involved in may case have gone too far once too many for I am going to create such a public uproar and embarrass all of them and I will get petitions going to remove them from office and they better know I know where to send that petition and where to send those transcripts and how to make it an election issue

      Sometimes I feel so sorry for them they way they are so dunce. I wonder if they go back and even read transcripts of the nonsense coming out of their mouths. I could hardly contain myself or keep a straight face when the judges made their grand pronouncement about how the timeline is critical yet I prove to them the timeline in the decision was wrong. They shut up. Then when they could not deny the new timeline I pointed , they accepted it then resorted to a foolish argument that the adjudicator dealt with it the incident because he mentioned it although he did not state the date: They were too stupid to even think they may be talking about a different incident all together not to mention just mentioning an incident is not “dealing” with it. Self-represented litigants have every right to be protected from rogues and even incompetent judges and adjudicators. That is our right and I am known to stand firmly for my right and I cannot even be intimidated. I do not claim the right to success in a case but I darn sure have the right to a reasonable explanation as to why my beliefs are not valid or even reasonable expectations

      1. You say that sometimes you feel sorry for them. I have some empathy for some of them too. I was never interested in becoming a lawyer or judge. Many, in fact I suspect most, practising lawyers are not very happy. There are a number of reasons for that, but I think one of them is that any notion they had going in that they would be serving the public interest and the rule of law, they are compelled to abandon, sooner for some than for others. In order to continue bamboozling the public they have to lie to each other and lie to themselves. The truth is readily accessible now thanks to the internet. I highly recommend reading Fred Rodell’s “Woe Unto You, Lawyers”. There is one copy that I found online years ago and it is still online. You could even try purchasing a used copy of the book, long out of publication. It ought to be republished.

        Just two months ago the National Post featured an opinion piece – – written by a lawyer practising in Toronto.

        And the Globe & Mail has just published this opinion piece – – by SCC Justice Rosalie Abella. I’m going to compose a rebuttal, and submit it not as a letter to the editor, but as a another opinion piece. I don’t have a recognized name or a c.v., which likely reduces the prospect that the Globe will publish my piece. But they don’t have a monopoly on informing the public.

      2. Imagine, not one or two BUT three judges trying to convince themselves and signed their names to it that August 11 and September 21 comes after October 6. They struggled with every idea and notion that day for what the tribunal said makes no sense and that is what they bought into. They even had the nerve to say and I have the transcript, that they have an arrangement with the labour board that their decision will not be subject to correctness standard. The labour board decision will only be subject to reasonableness standard. (issues I raised include that the labour board decision being breach of my contract). As a lay person it baffles me as to why all these legal luminaries are incapable of seeing the light that it takes the SCC to tell them any decision that goes against common law is very unreasonable before it is seen as unlawful so they totally misunderstand that reasonableness standard is the lower one and they have it all backwards and upside down for they are treating it as the higher and unreachable standard.

        Just as they have LSAT as pre-requisite for law school, they should have a standardized test as pre-requisite for appointment to the judiciary and it should have a significant component about logic and reasoning, common sense and mental ability. They should do lie detector tests and be psycho-analysed so as to protect the public from the robed and collared mentally incapacitated and the unfit. Too many of them-I dare say over 90% are beyond help or repair. High end discussions such as those done by Double Aspect or SCC decisions fly way over their heads and only confounds them more. I blame lawyers for putting up with this nonsense and allowing them to bully them. The law societies should stop claiming (and pretending) they can serve the public interest. They have enough trying to serve their profession and no one can serve two masters

  3. The decision of the Supreme Court of Canada in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 had an enormous impact on Canadian refugee and immigration law. As one Federal Court of Canada judge told me, he had a huge pile of immigration cases dropped on his desk every morning, and invariably 99% of them were meritless, often obviously phoney claims. The real purpose was to delay deportation from Canada so the claimant could earn a Canadian income while the case was receiving the full entitlement to procedural fairness.

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