What You Need to Know About Your “Legitimate Expectations” in a Fair Tribunal Procedure

Procedural fairness is at the heart of administrative decision-making.

One aspect of a fair tribunal process is that if a government actor makes a specific representation that a procedure will be followed, that promise is kept.

Since the Supreme Court of Canada’s leading 1999 decision, Baker v. Canada, [1999] 2 S.C.R. 817, the doctrine of legitimate expectations protects a claimant’s interest in a certain process being followed as a matter of procedural fairness.

But the doctrine is strictly limited. It creates procedural rights only and does not lead to substantive results. Moreover, the burden is on the claimant to prove a clear and unambiguous expectation that a specific process will be followed.

Here is what you need to know when claiming or resisting an allegation that an administrative process was unfair following a breach of the claimant’s legitimate expectations:

1.       “Legitimate Expectations” Includes Representations and Past Practices.

A “legitimate expectation” arises when an administrative decision-maker makes a representation that a certain process will be adhered to, a substantive result will arise, or the past practices of the decision-maker lead to a predictable outcome.

In its 2013 decision, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, para. 94, the Supreme Court of Canada described how a State actor creates a legitimate expectation:

… If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. Likewise, if representations with respect to a substantive result have been made to an individual, the duty owed to him by the public authority in terms of the procedures it must follow before making a contrary decision will be more onerous.

2.       Legitimate Expectations Speak to Procedural Fairness, Not Substantive Results.

Where an administrative decision-maker has reneged on a representation or past practice, this creates a heightened level of procedural fairness or due process for the claimant. However, the doctrine of legitimate expectations does not protect substantive results.

In other words, if a promise in a result, such as awarding a contract to the claimant, is not adhered to, the claimant is entitled to a heighted degree of procedural fairness in its dealings with the decision-maker. However, the contract itself need not be awarded to the claimant on the basis of prior representations and past practice.

In Agraira, supra, the Court described the effect of a breach of a legitimate expectation as follows:

An important limit on the doctrine of legitimate expectations is that it cannot give rise to substantive rights … In other words, “[w]here the conditions or its application are satisfied, the Court may [only] grant appropriate procedural remedies to respond to the ‘legitimate’ expectation …

The rationale is that any unfairness created by the decision-maker back-peddling on its promises can be cured by granting the claimant further procedural fairness:

…[i]t will be generally unfair of the decision-makers to act contrary to their representations as to procedure or to go back on substantive promises without giving the person affected significant procedural rights: D. Jones and A.S. de Villars, Principles of Administrative Law.  5^th ed. (Toronto:  Carswell, 2009) at 256-57, as cited in G.(A.) v. Ontario (Minister of Transportation), 2013 ONSC 7461, at para. 46.

3.       The Promise or Conduct by the Public Authority Must be “Clear, Unambiguous and Unqualified”.

Canadian Courts will rarely enforce vague promises or past practices by State actors.

The legitimate expectation must be “clear, unambiguous and unqualified”: Agraira, supra 96.

As the Supreme Court of Canada described it, “government representations will be considered sufficiently precise for the purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement”: Canada (AG) v. Mavi, 2011 SCC 30, at para. 69.

By way of example, in Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738, the applicant physician argued that she had a legitimate expectation that, based on past practice, the regulator would bring a Court application to enforce its order against her, rather than suspending her certificate of registration.

The Court rejected the argument that there was a clear and unambiguous past practice by the regulator to proceed with enforcing its orders in the Courts under its governing legislation, rather than suspending a physician’s licence to practise:

For the doctrine of legitimate expectations to apply, the practice or conduct must be “clear, unambiguous and unqualified”… Here, there is no evidence that the College’s clear and unambiguous practice was to bring s.87 applications [to enforce the College’s orders in the Courts] whenever a physician failed to co-operate in an investigation or breach a court order.

4.       The “Legitimate Expectation” Cannot Conflict with the Governing Statute.

A legitimate expectation cannot conflict with the applicable legislation.

In other words, a claimant cannot have an expectation in a promise or practice by the State that exists in express contravention of the governing Act.

In Luchiw, supra, the Court held that the physician could not have a legitimate expectation that the College would seek compliance with its orders in the Courts where the physician had a duty under the governing statute to comply with the College’s orders in any event:

… I am satisfied that even if there was some evidence that the Court had brought s.87 applications [to enforce its orders in the Courts] in the past, the doctrine of legitimate expectations is not available where it conflicts with an express provision in a statute … Section 76 [of the governing legislation] imposes a positive obligation on a physician to co-operate with [a College] investigation …

A Narrow Doctrine in Canada

Unlike in other common law jurisdictions, such as the UK, the doctrine of legitimate expectations only assures procedural fairness in Canada.

Canadian Courts enforce promises and historical practices by State decision-makers by according the promisees a heightened degree of procedural fairness. As such, legitimate expectations is a narrow doctrine with limited applicability. 

Even if successful at proving a breach of a legitimate expectation, the only remedies available to the claimant involve according the claimant a further hearing, the right to make further submissions, or the right to a reconsideration of the decision. The Courts will not compel a decision-maker to arrive at a particular result for its breaches.

If the time has indeed come to expand the scope of the doctrine to include relief in the form of a substantive fairness, which in certain cases could very well be an effective means to enforce a decision-maker’s promises, Canadian Courts have yet to show a willingness to do so.

Marco P. Falco is a Partner in the Litigation Department at Torkin Manes LLP in Toronto who focuses on judicial review and civil appeals. If you have questions regarding your matter, please contact Marco at mfalco@torkin.com. Please be advised that we will have to conduct a conflict check before we can discuss your matter.