Basic elements of procedural justice (2023)

View Notes:

N / D

Slides of the lecture:

Welcome to YouCounsel.

Procedural justice affects us all– Whether we are in the court system or not, we always deal with procedural justice in our daily lives. In the judiciary, you may have noticed that a lot of my talks are about procedure - whetherCode of Civil Procedure(regardless of whether it is a small claims procedure or a family law procedure). In a court system, procedures are often very detailed as the courts deal with the decision-making process. The court seeks to ensure that all parties involved in a court proceeding are entitled to procedural fairness in this system. But what happens in our lives outside of the court system? How does procedural justice affect us all in everyday life? That is what this lecture is about.

We'll start with our usualDisclaimerthat this conversation is not legal advice. If you have a specific question about your issues, please contact an attorney or paralegal or the Ontario Law Society for a referral.

Who is affected by procedural law?? As I said, the answer iswe all– when we deal with public or quasi-public bodies – we always deal with issues of procedural fairness. For example, when you're applying for unemployment insurance, when you're fired from your job, or when you're sick, or when you're on maternity leave or part of your parental leave, and everything in between, you're dealing with procedural fairness — benefits, welfare, all become disability issues treated with procedural fairness. Taking care of your health, visiting hospitals, universities, colleges, when applying for a driver's license (e.g. driver's license or health card) - all these are examples where procedural fairness is at stake. Even in private settings, for example when an employer conducts a workplace investigation, that investigation is bound by procedural fairness. There are so many scenarios in our lives where we deal with procedural justice.

What is this procedural justice?procedural fairness isessentially procedural justice/ ÖProcedure by which a decision is made. Procedural justice doesn't care what the bottom line is /What is the final decision but the process by which that decision is made?. How do we understand this process?

Let me give you an example. A complains that B has been bothering him. A comes to you as an employer. That's the complaint. You make the decision to fine B without B being able to act on the complaint - you believe B has been harassing other employees all along. There have been many cases in the past where B has been reprimanded or punished for his harassing behavior. On the other hand, you know A very well. He's a great person (nice person) who doesn't lie and doesn't cause problems in the work environment. Based on that information, you simply believe that B doesn't need to act on those allegations - you should have done so and moved on and punished B. That isessentially a violation of procedural fairness for B. Because you denied B the opportunity to act on that complaint and you take a long shot because there is a 50% chance that B will or will not harass A. PerBy not giving B an opportunity to reply, you violated your procedural fairness. This is an example of how procedural justice works in this process.

What are some of the basic elements of procedural justice?? There are 2 main principles and they are in Latin and English: 1. Number one isthe right to be heard(This is a principle of procedural fairness); and the 2nd is theRight to be tried impartially.Now, these procedures manifest themselves in a variety of ways.

Let's look at examples of how procedural justice can work in different settings. First you need to understand thatThe threshold for the duty of procedural fairness is quite low. what is this limit When someone's rights, privileges or interests are at stake, procedural fairness is at risk, and that's a very low threshold – because when you're affected by a decision, your interests are obviously at stake. If you have applied to a particular university and feel that the admissions process was unfair, it is clear that your best interest is involved in the process. Procedural justice, number one, has a very low threshold to get involved - I mean, I can't think of a scenario where you wouldn't be eligible for procedural justice, but the threshold for that is pretty low.

Second, you want to remember itProcedural justice is flexibleand wholecontext dependent. The two principles I spoke about, the right to a fair hearing and the right to a fair trial, apply in the particular circumstances of the case. Therefore, it is important to realize that what might be a violation of procedural fairness in one context may be perfectly fair in another.Procedural fairness is contextual. Courts or administrative authorities will examine the specific context of that case to decide what is procedural in the circumstances of that case.

The 2 principles of procedural justice we are talking about: the right to be heard and the right to an impartial hearingdifferent manifestations in different situations. I have listed some examples of these manifestations: Number one isno unnecessary delay. If it is fair to you to get a decision within 30 days and not get a decision within 6 months, that could be an unreasonable delay. This may be a violation of your procedural rights/fairness. You are obviously entitled to ita fair and impartial process. We talked about it. You have a claim/creditthe right to know the case against you. In the example I have given, B has a right to know what the claim is against him - who made the claim so that he can act on it. Then theright to be heard. B then has the right to request a hearing. B has the right to tell his truth, to tell his side of the story, so that the decision maker can make a fair and just decision.

legitimate expectationThis means that if you are a person affected by a particular decision and have certain expectations of you for that process, those expectations will be met. We know that, for example, inCode of Civil Procedurea party has the right to defend itself within 20 days or within 30 days in certain circumstances. This means that the party has the right not to be identified as defaulting until the end of this period (20/30 days). If that party is previously in default, it is a breach of trust by that party. If you are entitled to a decision within 30 days and do not receive that decision within 6 months or a year, that is a breach of your procedural right based on a legitimate expectation.

There is also a right calledFreedom to lead your own case. Again, this is specific to a scenario. In this case, the Human Rights Court ordered one of the parties to make "you will say" statements to certain witnesses. The party said we had the right to present our case however we wanted. You can't force us to produce our testimonies. They appealed that decision, and the decision was overturned by the Divisional Court on the grounds that the party had the right to present its case as it saw fit - that the party could not be ordered to present a case as it did should.

right to justification: In certain circumstances, you may not only have a right to know the decision, but also the reasons for that decision. An example of this right was a case where a probationary police officer was dismissed without reason. And the employer took the position that thepolice lawit allowed them to fire the employee so they didn't have to give a reason. The court said no, you are required to give reasons to that particular probation officer because it is procedurally unfair if he does not know the reasons and does not have the opportunity to respond to those reasons. This may be your procedural right – to know the reasons for the decision.

Similarly, in workplace investigations, the person penalized for the outcome of that investigation may have a right to know the reasons why the decision was made against that party. Possibly whereCredibility is an issueWe know thatoral presentations are important. If a decision-making body refuses to give oral argument to a party in certain circumstances, it can be argued that this was a denial of procedural fairness, even where credibility issues are at stake.

In certain circumstances you may be entitled to apostponing a decisionbecause you need a little more time to react to certain things and it could be considered that if you are not granted a reprieve in these circumstances it could constitute a breach of procedural fairness. In certain circumstances we know that, for example, during an investigation at workoccupational health and safety lawrequires the employer to conduct a harassment investigation. In certain other circumstances, you may be entitled to an investigation as a result of your complaint and failure by the party or employer to conduct an investigation in those circumstances may constitute a breach of your right.

What's the lesson: you always, always, always have toBe careful with the procedure. The devil can lie, the devil can work behind the scenesgreater injustice may occur because of a lack of procedural fairness. You must always pay attention to this. You must always claim and comply with due process in relation to your rights and obligations.

Thank you for watching.