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After determining which rights were violated (whether unintentional or outright fraud) utilizing a universal standard of principles and ULTRS (universal language for testimony and reports) to determine which duty was triggered, we can begin to rectify the situation.
This leads to two questions: 1. Where does this situation fall on the spectrum of fairness and, depending on where it falls, 2. What does that translate into in terms of specific procedures that must be followed?
Spectrum of Fairness
The court in Baker v. Canada (Minister of Immigration and Citizenship) listed four factors which help determine where on the spectrum of fairness a given decision lands. Note that the “legitimate expectations” of the person challenging the decision is a consideration, but it is considered before the factors listed below. The doctrine of “legitimate expectations” does not affect where the decision lands on the spectrum of fairness. Rather, it tells us some of the specific procedures that must be followed.
i. Nature of the decision being made and the process followed in making it: here, an assessment of how formal or informal the decision at hand is made. The more adjudicative the administrative decision maker’s nature and the process it follows (i.e. a formal decision), the more procedural safeguards necessary. The more operational or administrative (i.e. an informal decision), the less procedural safeguards necessary
ii. Nature of the statutory scheme and the terms of the statute pursuant to which the body operates: here, an assessment of the statutory scheme is made. If no further remedies or appeal are available under the statute, more procedural safeguards are necessary because the first level of the decision must be procedurally fair.
An assessment of the complexity of the decision being challenged is also made. If it is a relatively simple decision, it will fall at the lower end of the spectrum.
iii. Importance of the decision to the affected parties: here, an assessment of how important the outcome of the decision is to the parties affected. Where the decision is important to the affected parties, high procedural safeguards are necessary. For example, in Kane it was held that a high standard of procedural fairness is required when the right to continue in one’s profession/employment is at stake.
iv. Choices made by the decision-maker: here, an assessment of the power given to the administrative decision maker over its own procedures is made. If they have a lot of power, they are under a high procedural obligation and the decision is at the higher end of the spectrum.
Once these factors are considered, we end up with a point on the spectrum. The next question is: how does this translate into specific procedures?
The specific procedures required differs case by case. In Mavi, Justice Binnie stated that we ultimately need a fair process by considering what is relevant in the circumstances. There are general considerations that the court looks to when determining specific procedures:
- The determination of specific procedures is a balance of fairness, efficiency and predictability of the outcome; and
- The people affected by a decision have the opportunity to be heard and considered.
The doctrine of “legitimate expectations” can create specific procedures that must be followed where the administrative decision maker has made a certain representation or promise regarding specific procedures that will be followed.
An oral hearing is not necessarily required under the common law where a statute does not specify whether an oral hearing must be held. In Khan, the court held that, if an administrative decision maker is going to decide adversely against someone’s credibility and that person is affected by a decision of the administrative decision maker, an oral hearing must be held.
The enabling statute may state whether reasons for the decisions are required. An administrative decision maker who is subject to the SPPA must give reasons to the affected parties if they ask for them. At common law, Baker clarified that where a decision has important significance for an individual, where there is a statutory right of appeal or in other circumstances, some form of reasons should be required. In Newfoundland and Labrador Nurses’ Union, the court held that, at the procedural fairness stage, the only consideration is whether there is a duty to provide reasons. The adequacy of reasons is not a relevant consideration at this stage. In Baker, it was held that where some form of reasons are required, there is flexibility as to what those reasons generally look like. The courts are very flexible as to what counts as reasons.
At this stage of the analysis, there is a two step test. Determining what procedures are required after determining where on the spectrum a given decision lands is a contextual analysis.
My next blog entry will focus on procedural obligations arising under the constitution.
Procedural Obligations: Duty to Protect via Title 17 Utilizing a Universal Standard of Principles (Part One) via Anthony’s Blog
In my last blog entry, I discussed procedural obligations arising from statute and soft law. What happens when those documents are silent or ambiguous? When a statute is silent or leaves gaps with respect to procedure, the common law steps in to fill those gaps. The other fundamental principle is that to override the rules […]
Rule 502(d) Orders: The Most Effective and Underused Protection against Privilege Waivers
|Originally Published on 05 Mar 2013 • USA (National/Federal)|
This Legal Update highlights the advisability of entering into a Rule 502(d) order under the Federal Rules of Evidence (FRE), which allows parties to provide for the return of privileged documents produced during discovery without fear that the disclosure waives the attorney-client privilege or work product protection. Surprisingly, Rule 502(d) orders are currently underused by federal court practitioners, despite being favored by federal judges.
The no-waiver effect also applies in other federal and state court proceedings.
The parties may incorporate into the order a specific and detailed agreement regarding its scope and effect in the litigation.
Privileged documents must be returned to the disclosing party “irrespective of the care taken by” the party in reviewing them prior to production.
Magistrate Judge Andrew Peck of the United States District Court for the Southern District of New York opined that it is malpractice to not seek a Rule 502(d) order from the court before the commencement of document discovery (see View from the Bench: Judges on E-Discovery at LegalTech Day Two, Law Technology News, Evan Koblentz (Jan. 31, 2013)).
In Chevron Corp. v. The Weinberg Group, the court entered a Rule 502(d) order allowing the defendant to knowingly produce privileged materials without waiving any privileges regarding the subject matter of the documents in any proceeding (Misc. Action No. 11-409, at *1 n.1 (D.D.C. Oct. 26, 2012)). Magistrate Judge John M. Facciola wrote that he was “troubled that the [defendant] has just now discovered Rule 502(d), the use of which may have prevented the protracted litigation and discovery battles that have plagued this case for the past two years.”
In Rajala v. McGuire Woods, LLP, the court held that an inadvertently produced document did not waive privilege and could be taken back by the producing party (clawed back) because the court had entered a Rule 502(d) order before the disclosure. The court determined that the terms of the Rule 502(d) order, and not the provisions of Rule 502(a) and (b), governed the handling of inadvertently produced documents and noted that the purpose of the order was to reduce the time and costs involved in a document-by-document privilege review (No. 08-cv-2638, , at *5 (D. Kan. Jan. 3, 2013)).
In Brookfield Asset Management, Inc. v. AIG Financial Products Corp., the court held that the Rule 502(d) order issued by the court before the defendant’s production of privileged documents gave the defendant the right to claw back those documents “no matter what the circumstances giving rise to their production were” (No. 09-cv-8285, , at *1 (S.D.N.Y. Jan. 7, 2013)).
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RESOURCE ID 5-524-7065DOCUMENT TYPE Legal update: archive
PRODUCTSPLC US Federal Litigation, PLC US Law Department