A couple of recent Federal Court cases highlight the different roles that the doctrine of legitimate expectations plays in judicial review depending on whether the decision being reviewed is an administrative decision or an exercise of Crown Prerogative.

In Canadian Arab Federation v. Canada (Citizenship and Immigration), 2013 FC 1283 [CAF], the Court reviewed the decision of the Minister of Citizenship and Immigration not to renew a funding agreement with the Canadian Arab Federation [CAF] under the Language Instruction for Newcomers to Canada program [LINC]. While the decision itself was reviewable on a reasonableness standard (and was found to be reasonable), the Court found that the CAF was not entitled to procedural fairness in the Minister’s decision-making process, for two reasons. First, and determinatively, the funding agreement under LINC amounted to a commercial contract, and the question of its renewal must thus be governed by contract law, making the duty of fairness inapplicable: Irving Shipbuilding Inc v Canada (Attorney General), 2009 FCA 116. Second, a duty of fairness only applies to decisions affecting a party’s rights, privileges and interests: Knight v Indian Head School Division No 19, [1990] 1 SCR 653. The CAF had no right to LINC funding. The Court went on to say that, if there were a duty of fairness, it would only entail minimal procedural protections in the circumstances, which included the fact that the CAF had no legitimate expectation of fairness in the renewal process. Thus, the CAF’s legitimate expectations were only relevant as part of the Baker factors to determine how much procedural fairness was owed, not whether it was owed in the first place.

In Drabinsky v. Advisory Council of the Order of Canada, 2014 FC 21 [Drabinsky], the Court considered Garth Drabinsky’s challenge to the Advisory Council’s decision to rescind his appointment to the Order of Canada. It readily found that the decision did not engage Mr. Drabinsky’s substantive rights, because no citizen has a right to an honour: Black v Canada (Prime Minister), [2001] OJ No 1853 (CA). However, exercises of the Crown Prerogative such as this are reviewable on the narrow grounds of procedural fairness, “solely where a person’s rights or legitimate expectations have been affected” (Drabinsky at para. 18). In this case, the existence of an official document outlining the Policy and Procedure for Termination of Appointment to the Order of Canada did give rise to a legitimate expectation that the procedure it outlined would be adhered to. The Court found that, since in this case the Advisory Council had abided by the provisions of that document, Mr. Drabinsky’s legitimate expectation was met.

These decisions highlight something of a disconnect on the role of legitimate expectations in procedural fairness. In CAF, once it was found that the CAF did not have a right to, or an interest in, LINC funding, it could not be entitled to procedural fairness. The question of its legitimate expectations was dealt with only in the alternative – in the event that procedural fairness was engaged – to help determine the scope of procedural fairness in keeping with the Baker factors. In Drabinsky, however, while it was a given that Mr. Drabinsky could have no right to or interest in the Order of Canada, his legitimate expectations about process were still relevant to determining that procedural fairness did in fact apply.

The inconsistency between these decisions highlights the idiosyncratic nature of judicial review of exercises of the Crown Prerogative. When asked to review a decision grounded in that power, the Court begins from the position that an exercise of the Crown Prerogative is not reviewable unless its subject matter goes to the rights, or possibly the legitimate expectations, of an individual: Black v. Canada (Prime Minister), 54 OR (3d) 215 (CA) at para 51. On the role of legitimate expectations, Laskin JA wrote in Black:

[61] And no Canadian citizen can have a legitimate expectation of receiving an honour. In Canada, the doctrine of legitimate expectations informs the duty of procedural fairness; it gives no substantive rights: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817… Here Mr. Black does not assert that he was denied procedural fairness. Indeed, he had no procedural rights.

[62] But even if the doctrine of legitimate expectations could give substantive rights, neither Mr. Black nor any other Canadian citizen can claim a legitimate expectation of receiving an honour. […]

In Drabinsky, the Court found that it was consistent with Black for it to be open to an individual to challenge an exercise of the Honours Prerogative on procedural grounds based on legitimate expectations. This view was also adopted by the Federal Court in a more recent case involving Conrad Black, Black v. Advisory Council for the Order of Canada, 2012 FC 1234. (The Federal Court of Appeal, 2013 FCA 267, explicitly declined to decide whether legitimate expectations did in fact give rise to procedural rights in this context, but agreed with the Federal Court that if they did, the requirements of procedural fairness were met).

The Drabinsky decision confirms that the Federal Court has carved out a narrow ground in which fairness considerations can apply to an exercise of the Crown Prerogative, based on legitimate expectations.

In judicial review of an administrative decision, however, such as in CAF, legitimate expectations are only relevant if it is found that procedural fairness is engaged. In contrast to review of exercises of the Crown Prerogative, the basic premise of judicial review of administrative decisions generally is that the substance of the decision must be reviewable, even if only for its reasonableness. Given that the Court will always have jurisdiction to submit these decisions to at least some scrutiny, it becomes less important for the possibility of procedural fairness to be left open in all cases.