Martineau v. Matsqui Disciplinary Bd.

1Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.

2A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end [Page 629] of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum. That is what emerges from the decision of this Court in Nicholson. In these cases, an applicant may obtain cer­tiorari to enforce a breach of the duty of proce­dural fairness.

3Section 28 of the Federal Court Act, that statutory right of review compels continuance of the classification process in the Federal Court of Appeal, with clear outer limits imposed on the notion of "judicial or quasi-judicial". No such limitation is imported in the language of s. 18, which simply refers to certiorari, and is therefore capable of expansion consistent with the movement of the common law away from rigidity in respect of the prerogative writs. The fact that a decision-maker does not have a duty to act judicially, with observance of formal procedure which that charac­terization entails, does not mean that there may not be a duty to act fairly which involves importing something less than the full panoply of conventional natural justice rules. In general, courts ought not to seek to distinguish between the two con­cepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework. The Federal Court Act, however, compels classification for review of feder­al decision-makers.

4An inmate disciplinary board is not a court. It is a tribunal which has to decide rights after hearing evidence. Even though the board is not obliged, in discharging what is essentially an administrative task, to conduct a judicial proceed­ing, observing the procedural and evidential rules of a court of law, it is, nonetheless, subject to a duty of fairness and a person aggrieved through breach of that duty is entitled to seek relief from [Page 630] the Federal Court, Trial Division, on an applica­tion for certiorari.

5It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.

6A widening of the ambit of certiorari beyond that of a s. 28 application will undoubtedly, at times, present a problem in determining whether to commence proceedings in the Court of Appeal or in the Trial Division. However, the quandary of two possible forums is not less regrettable than complete lack of access to the Federal Court.

7It is wrong, in my view, to regard natural justice and fairness as distinct and separate stand­ards and to seek to define the procedural content of each. In Nicholson, the Chief Justice spoke of a " ... notion of fairness involving something less than the procedural protection of the traditional natural justice". Fairness involves compliance with only some of the principles of natural justice. Professor de Smith (3rd ed. 1973, p. 208) expressed lucidly the concept of a duty to act fairly: In general it means a duty to observe the rudiments of natural justice for a limited purpose in the exercise of functions that are not analytically judicial but administrative. The content of the principles of natural justice and fairness in application to the individual cases will vary according to the circumstances of each case, as recognized by Tucker L. J. in Russell v. Duke of Norfolk[32], [Page 631] at p. 118.

8In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness.