SW Laws

Home » International Law » Duty to Protect / Correct Utilizing a Universal Standard of Principles (Part Two)

Duty to Protect / Correct Utilizing a Universal Standard of Principles (Part Two)

Issues Pending:

Archives

After determining which rights were violated (whether unintentional or outright fraud) utilizing a universal standard of principles and ULTRS (universal language for testimony and reports) to determine which duty was triggered, we can begin to rectify the situation.

This leads to two questions: 1. Where does this situation fall on the spectrum of fairness and, depending on where it falls, 2. What does that translate into in terms of specific procedures that must be followed?

Spectrum of Fairness

The court in Baker v. Canada (Minister of Immigration and Citizenship) listed four factors which help determine where on the spectrum of fairness a given decision lands. Note that the “legitimate expectations” of the person challenging the decision is a consideration, but it is considered before the factors listed below. The doctrine of “legitimate expectations” does not affect where the decision lands on the spectrum of fairness. Rather, it tells us some of the specific procedures that must be followed.

i. Nature of the decision being made and the process followed in making it: here, an assessment of how formal or informal the decision at hand is made. The more adjudicative the administrative decision maker’s nature and the process it follows (i.e. a formal decision), the more procedural safeguards necessary. The more operational or administrative (i.e. an informal decision), the less procedural safeguards necessary

ii. Nature of the statutory scheme and the terms of the statute pursuant to which the body operates: here, an assessment of the statutory scheme is made. If no further remedies or appeal are available under the statute, more procedural safeguards are necessary because the first level of the decision must be procedurally fair.

An assessment of the complexity of the decision being challenged is also made. If it is a relatively simple decision, it will fall at the lower end of the spectrum.

iii. Importance of the decision to the affected parties: here, an assessment of how important the outcome of the decision is to the parties affected. Where the decision is important to the affected parties, high procedural safeguards are necessary. For example, in Kane it was held that a high standard of procedural fairness is required when the right to continue in one’s profession/employment is at stake.

iv. Choices made by the decision-maker: here, an assessment of the power given to the administrative decision maker over its own procedures is made. If they have a lot of power, they are under a high procedural obligation and the decision is at the higher end of the spectrum.

Once these factors are considered, we end up with a point on the spectrum. The next question is: how does this translate into specific procedures?

Specific Procedures

The specific procedures required differs case by case. In Mavi, Justice Binnie stated that we ultimately need a fair process by considering what is relevant in the circumstances. There are general considerations that the court looks to when determining specific procedures:

  • The determination of specific procedures is a balance of fairness, efficiency and predictability of the outcome; and
  • The people affected by a decision have the opportunity to be heard and considered.

The doctrine of “legitimate expectations” can create specific procedures that must be followed where the administrative decision maker has made a certain representation or promise regarding specific procedures that will be followed.

An oral hearing is not necessarily required under the common law where a statute does not specify whether an oral hearing must be held. In Khan, the court held that, if an administrative decision maker is going to decide adversely against someone’s credibility and that person is affected by a decision of the administrative decision maker, an oral hearing must be held.

The enabling statute may state whether reasons for the decisions are required. An administrative decision maker who is subject to the SPPA must give reasons to the affected parties if they ask for them. At common law, Baker clarified that where a decision has important significance for an individual, where there is a statutory right of appeal or in other circumstances, some form of reasons should be required. In Newfoundland and Labrador Nurses’ Union, the court held that, at the procedural fairness stage, the only consideration is whether there is a duty to provide reasons. The adequacy of reasons is not a relevant consideration at this stage. In Baker, it was held that where some form of reasons are required, there is flexibility as to what those reasons generally look like. The courts are very flexible as to what counts as reasons.

Conclusion

At this stage of the analysis, there is a two step test. Determining what procedures are required after determining where on the spectrum a given decision lands is a contextual analysis.

My next blog entry will focus on procedural obligations arising under the constitution.

Anthony's Admin Law Blog

After determining that the duty is triggered, we must determine what that duty entails. That leads to two questions: where does this situation fall on the spectrum of fairness and, depending on where it falls, what does that translate into in terms of specific procedures that must be followed?

Spectrum of Fairness

The court in Baker v. Canada (Minister of Immigration and Citizenship) listed four factors which help determine where on the spectrum of fairness a given decision lands. Note that the “legitimate expectations” of the person challenging the decision is a consideration, but it is considered before the factors listed below. The doctrine of “legitimate expectations” does not affect where the decision lands on the spectrum of fairness. Rather, it tells us some of the specific procedures that must be followed.

i. Nature of the decision being made and the process followed in making it: here, an assessment of…

View original post 628 more words

Recent Posts: SW Laws

Experiencing a Financial hardship?

A WAGE GARNISHMENT OR INCOME WITHHOLDING CAN BE CHALLENGED BY REQUESTING A HEARING UNDER 45 CFR 32.5. IF YOU WERE FIRED, OR HAVE SOME TYPE OF DISABILITY YOU CAN FILE A FINANCIAL HARDSHIP UNDER 45 CFR PART 32.9 § 32.9 Financial hardship. (a) A debtor whose wages are subject to a withholding order may, at any time, request […]

Purdue Pharma Maker of OxyContin agrees to Settlement in Oklahoma via WHNT.com

OKLAHOMA CITY (AP) — The maker of OxyContin and the company’s controlling family agreed Tuesday to pay a groundbreaking $270 million to Oklahoma to settle allegations they helped create the nation’s deadly opioid crisis with their aggressive marketing of the powerful painkiller. It is the first settlement to come out of the recent coast-to-coast wave […]

Duty to Protect / Correct Utilizing a Universal Standard of Principles (Part Two)

Originally posted on Anthony's Admin Law Blog:
After determining that the duty is triggered, we must determine what that duty entails. That leads to two questions: where does this situation fall on the spectrum of fairness and, depending on where it falls, what does that translate into in terms of specific procedures that must…

Procedural Obligations: Duty to Protect via Title 17 Utilizing a Universal Standard of Principles (Part One) via Anthony’s Blog

In my last blog entry, I discussed procedural obligations arising from statute and soft law. What happens when those documents are silent or ambiguous? When a statute is silent or leaves gaps with respect to procedure, the common law steps in to fill those gaps. The other fundamental principle is that to override the rules […] […]

More on Wordpress

Enter your email address to follow this blog and receive notifications of new posts by email.

Blog:: Forensic Files

Biometrics — Forensic’s blog

INTRODUCTION The term “biometrics” is derived from the Greek words “bio” (life) and “metrics” (to measure). Biometrics is the technical term for body measurements and calculations. Biometrics is the measurement and statistical analysis of people’s unique physical and behavioral characteristics. Biometrics allows a person to be identified and authenticated based on a set of recognizable […]

Intro to Fingerprints via Forensic’s blog

Fingerprints- An Introduction Jan 29, 2019 Class characteristics Classification of fingerprints Galton system Henry classification Individual characteristic By @forensicfield INTRODUCTION Everything we touched, leave behind our unique impression on it, which is Our fingerprints. No two people have exactly the same fingerprints. Even identical twins, with identical DNA, have different fingerprints. Fingerprint identification also known as […]

Forensic Structural Engineeringg via Australian Business Network

Structural engineering is a specialty within the field of civil engineering which focuses on the framework of structures and on designing those structures to withstand the stresses and pressures of their environment and remain safe, stable and secure throughout their use. To explain a little differently, it can be said that structural and consulting engineers […] […]