Fair Process Under Bill of Rights
  
As to the substance of the claim of institutional bias due to the binding nature of pay equity guidelines, the Court of Appeal adopted its reasoning in the Bell decision. Nevertheless, the Court went on to consider what recourse an aggrieved party might have if it were assumed that the legislative provisions in question interfered significantly with standards of impartiality and independence. The Court recognized that the exact scope of the rules of natural justice, from which standards of impartiality and independence are derived, can be varied by explicit statutory language insofar as they apply to administrative agencies and tribunals. However, such statutory variation had to be assessed against provisions found in subsection 2(e) of the Canadian Bill of Rights that guarantee a person will not be deprived of a "fair hearing in accordance with the principles of fundamental justice".²⁴⁴ These provisions require a tribunal adjudicating upon a person`s rights to "act fairly, in good faith, without bias and in a judicial temper".²⁴⁵ As to whether the Crown is a "person" and thus entitled to claim this protection, the Court referred to case law that established that both corporate and natural persons were included in the wording of subsection 2(e) of the Bill of Rights. Case law also established that the Crown in Right of Canada was for legal purposes a "person" at common law. The Court also emphasized that constitutional protection of a right to a fair hearing under the Charter of Rights and Freedoms did not extend to civil proceedings before administrative tribunals. Subsection 2(e) of the Bill of Rights could thus play an important supplementary role in helping to define the scope of procedural safeguards applicable to such proceedings. In light of these considerations, the Court concluded that the Crown was not precluded from raising the right to a fair hearing guaranteed under the Bill of Rights.²⁴⁶

While the Court made no substantive finding on how the pay equity guidelines might interfere with the right to a fair hearing, it described the type of remedy that would be available in the event that standards of procedural fairness under the Bill of Rights were violated. In such a hypothetical case, the guidelines would be declared inoperative but only insofar as the instant proceedings were concerned. The hearing into the complaint would then proceed on the basis that the guidelines were not binding on the members of the tribunal presiding over the case. Leave to appeal the Federal Court of Appeal decision to the Supreme Court of Canada was granted (without reasons) on December 13, 2001.²⁴⁷

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End Notes