Today we’re going to do something a little different. While most of my posts are going to be practical advice about how to navigate KPU’s bureaucracy, I also want to take some time to talk about procedural fairness. Hopefully not too abstract for everyone, but taking a step back and talking about how decisions get made can help us to talk about fairness in a more useful way. Too often we have a kind of gut feeling that something is unfair, or an idea that if things had been done differently, a better decision might have come out. With these posts (there may not be another one for a while, I’m going to do a lot more how-tos), I hope we can talk about fairness at university in a way that isn’t totally fixated on a specific department or a single appeal, but not too disconnected from real campus questions that we can’t make sense of it. That said, this post is not a legal opinion, and should not be considered legal advice for anyone. This is merely our lay opinion, and how we view fairness in decision-making.
So let’s get comfy and talk about Baker v. Canada (Minister of Citizenship and Immigration),  2 SCR 817, 1999 CanLII 699 (SCC).
Mavis Baker was a mother of four, born in Jamaica and living in Canada. She had entered Canada on a visitor’s visa, but then stayed and worked for some years, raising her children. In 1992, Immigration Canada (IC) ordered her deported back to Jamaica. Baker applied for a humanitarian and compassionate exemption from this order. She was the sole caregiver for two of her children, Canadian citizens, and would not be able to take them to Jamaica. She would also likely be unable to access necessary medical treatment there. An IC employee heard her application and recommended to his superior that it be rejected. The superior decided to reject it, but didn’t provide significant written reasons. The only reason Baker received from IC was the first employee’s recommendation, which included a rant about entitled immigrants, and judgements about her health.
With the assistance of civil society groups, Baker’s appeal went all the way to the Supreme Court of Canada. Several other interesting issues came up along the way: was providing the officer’s notes the same as providing “reasons”, and were they adequate as reasons? Was Baker entitled to a hearing in person before the final decision-maker? The court’s reasoning also covers some more abstract ground in discussing what it means to say that someone has “discretion” to choose one way or the other. These are all perennial, important problems in procedural fairness. The court concluded that the immigration officer’s language indicated that his recommendation was influenced by his personal feelings, and sent the matter back to IC to be re-decided without that bias.
The decision as a whole is quite interesting, if this kind of thing interests you at least. But Baker is mostly notable because the SCC took the opportunity of this case to pull together several disparate threads in the judicial review of administrative action and try to make them all make sense together. The resulting decision is probably one of the single most important documents in procedural fairness in Canada, and an invaluable tool in thinking about how governments and organizations governed by legislation (like KPU, which is governed by the BC University Act) need to make decisions.
It’s easy to say that decisions should be made in a fair manner, but actually far more complex when you tease apart all of the various things that might make a decision unfair. On top of that, when you try to come up with tools to fix them that apply to every administrative decision maker in Canada, from immigration decisions and universities to municipal zoning, roadside driving suspensions, discipline for regulated professions, broadcast licenses, commercial liquor licenses… it gets messy, and the principles you end up with can be really abstract. It’s always a struggle to bring those principles back to reality.
In the Baker decision, the SCC describes a two-step process and five factors to consider when asking whether a decision is fair. Each one of these elements has been debated and litigated in the 18 years since the decision came down, and a lot is still in flux. The Baker decision’s importance comes from giving us these tools to talk about fairness.
THE BAKER TEST
The first step is to ask whether a person actually has a legitimate interest in a decision. This means that a decision has to be fair whether it’s made in an obviously judicial context, where you sit down in front of someone and make your argument, and someone else is there arguing the other side, or is made unilaterally. What matters first is just whether it impacts me. On the other hand, if I disagree with the colour KPU painted the staff room, no court in the land is going to care to hear from me. It doesn’t matter whether the decision is to deny a person something they would otherwise be entitled to, or to bestow a special benefit on them, it just needs to do one or the other. It doesn’t necessarily matter how the organization or the decision-maker feels about the person or the decision. All that matters at this stage is whether the decision really matters to me. If it does, then the public body has a “duty of fairness” to me.
When we’ve passed this test, we then consider at least five factors to work out what that duty of fairness “contains”.
First, what kind of decision is being made? If you’re going to need to resolve a bunch of disputes about the facts or decide whether someone is telling the truth or not, that’s going to require a different kind of procedure than deciding whether a zoning application fits with a municipal community plan. Some decision don’t really have a single right answer, usually because they balance a lot of different interests. For instance, the CRTC deciding whether a TV station gets included in the basic cable package is different from the College of Physicians and Surgeons deciding if a doctor has committed misconduct. If two TV networks applied for mandatory carriage in the basic package with exactly the same program lineup, the CRTC wouldn’t approve both of them and require people to pay for two identical channels. That’s a decision where you’re not obliged to treat like cases alike. The CRTC would have to find some way to distinguish between the two applications. On the other hand, two doctors who had similarly been prescribing drugs inappropriately would probably face similar discipline.
The Student Rights Centre is usually interested in KPU decisions that impact only one or a few students, that involve factual disagreements, and where the same facts should generally always lead to the same outcome. If your class is writing a multiple choice exam and you get a mark for “B” as the correct answer, anyone else who answered “B” should also get the mark. If two people conspire together to cheat on an exam, they should probably face similar sanctions, unless there are some other factors that shift the blame significantly more on to one or the other.
The second factor to consider is the nature of the legislation and the decision-maker. The BC University Act gives KPU the authority to offer classes and credentials, and requires them to have mechanisms for resolving disputes. Generally, grades are assigned by faculty who have significant expertise in their subject matter, and if grades are appealed they’re re-graded by similarly qualified faculty. Disability accommodation, non-academic misconduct, and other academic decisions are a little different, but they should be made by appropriately qualified people. The University Act doesn’t actually say very much about decision procedures, compared to the lengthy stuff in other legislation, which gives KPU a very large space to work within to find good procedures. That also means that it can respond to unusual circumstances or new considerations much more easily by changing its procedures or making exceptions.
The third factor is the importance of the decision to the person in question. This is a tricky one, because KPU decisions can vary hugely based on a bunch of factors. A first plagiarism offence leading to a zero on an assignment might not affect one student’s life very much, but might pose problems if they wanted to be lawyer or a doctor down the line. It’s also possible for a first offense to lead to a more significant sanction, even sometimes up to suspension. It’s probably appropriate for a student appealing a more significant grade to have more opportunities to participate in that decision - for instance, a 4th year term project versus a 1st year quiz. You could even speculate whether students in some programs (or at some schools) have more or less rights to participate because those decisions are more important, but that’s not what we’re talking about here today. What matters is that most decisions we deal with are likely to be moderately to very important.
The fourth factor is the legitimate expectations of the person. Sometimes, in the course of a particularly complex or serious process, a KPU administrator will make a promise about how the process will go, like promising that you’ll receive a response by a certain time or will have the opportunity to see and respond to a particular piece of information (Information like “what is my instructor basing their allegation of plagiarism on?” or “why can’t I have this particular disability accommodation in this classroom?”). This part only applies to procedural expectations, not substantive ones. If someone promises you a particular outcome (“Yes, you can have this disability accommodation”) it doesn’t necessarily mean the procedure was unfair if you don’t get that outcome. In Canada, legitimate expectations only apply to procedure, but in other countries it can apply to outcomes as well.
The fifth factor is the internal policy of the decision-maker. This refers to KPU’s policies governing how appeals and other decisions are made. These cover things like timelines to file things or to respond, what factors should be considered in making a decision, what outcomes the decision-maker can choose from, who should make which kinds of decisions, whether people get meetings in person or not, what needs to be included in written decisions, and more. No such policy could ever cover every possible weird circumstance, and it’s always possible for someone to argue that one of the other factors is more important than KPU’s internal policy - for instance, that the kind of decision being made is so complex that they need to present their case in person, or that it’s so important that they need a lawyer to present it for them.
KPU always has to do the fair thing, and what a lot of people don’t always realize is that often the fair thing to do is to seriously consider whether the policy itself is fair, and changing things up if it is. The significance of this part probably requires a few whole blog posts to even start getting in to. There are entire books in the library covering how internal policies should work, what they can do, and there a lot of even more abstract questions still being determined in this area. Don’t worry, we won’t be going that far into the weeds on the blog.
SO WHAT DOES IT MEAN?
That’s an awful lot of words just to skim the surface of how important Baker is to procedural fairness in Canada and at KPU. The court even says that the list of factors might not be complete - there could be more out there, waiting to be discovered. It pulls together a bunch of principles from a bunch of areas and should probably be viewed as a checklist or a tool for how to grapple with questions of fairness. Baker gives you a kind of translator to turn your feelings that this is unfair into concrete statements about what the procedure is, why it might be that way, and what it should be.
It’s interesting to note that the Baker decision doesn’t rank these five factors or provide any kind of easy exceptions to any of them. In order to be fair, the procedure has to check off all five factors as well as possible. For instance, if you think that the particular circumstances of the grade you’re appealing makes the KPU grade appeal policy unfair, or if someone promises you a procedure that doesn’t make sense under the University Act, then you can and should let the decision-maker know and they should give you an answer one way or another. “That’s what the policy says” or “that’s how we do it” are not good enough answers to those kinds of questions, and if you get these answers from KPU administrators, you should come talk to us at the SRC.
We started with Baker for this blog series because just about every other idea passes through it, and it gives you a place to put all of the other fairness ideas and questions you come across. We’re not lawyers, though, and this isn’t any kind of legal advice. We’re just trying to make a space for conversation about procedural fairness. With that in mind, we invite students, faculty, staff and administrators to comment with opinions, personal experiences, contradictory examples, or whatever else applies. Be careful about what you say here in public about yourself, and please respect students’ privacy.
-- John (KSA Advocacy Coordinator)