Mar 14, 2023
Revisiting doctrine of 'legitimate expectations' in Canadian administrative law
By Marco P. Falco
Procedural fairness is at the core of administrative decision-making. One aspect of natural justice is that if a government actor makes a specific representation that a procedure will be followed, that promise will be honoured.
Since the Supreme Court of Canada's leading 1999 decision, Baker v. Canada,  2 S.C.R. 817, the doctrine of legitimate expectations protects a claimant's interest that a certain process be followed, as a matter of fairness.
But the doctrine of legitimate expectations remains limited. It creates procedural expectations only and does not lead to substantive results.
In other jurisdictions, such as the United Kingdom (see, for example, R. v. North and East Devon Health Authority, ex parte Coughlan  EWCA Civ 1871,  Q.B. 213), legitimate expectations protects substantive as well as procedural outcomes. Has the time come to make similar advances in Canada?
To answer this question, it is necessary to canvass the doctrine in its current form and as applied by Canadian courts.
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 sec 36, para. 94, the Supreme Court of Canada described how a "legitimate expectation" may arise:
... 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.
Doctrine protects procedural, not substantive rights in Canada
If 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 a promise in a substantive result.
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. 5th ed. (Toronto: Carswell, 2009) at 256-57, as cited in G.(A.) v. Ontario (Minister of Transportation), 2013 ONSC 7461, at para. 46.
So if a state actor reneges on a promise to grant a certain tax exemption to a corporation, for example, the corporation is only entitled to a high degree of procedural fairness in having the exemption reconsidered.
What the corporation cannot enforce is the state actor's application of tax exemption - this would amount to a substantive result, which is not protected under the doctrine of legitimate expectations in Canada.
Promise or conduct by 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:
... 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 sec 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 instead, as it did in the physician's case:
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.
No conflict with 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 Luchkiw, 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 ...
The case for expanding doctrine of legitimate expectations in Canada
Unlike in other common law jurisdictions, such as the U.K., the doctrine of legitimate expectations only guarantees procedural fairness in Canada where the legitimate expectation is violated.
Canadian courts enforce promises and historical practices by state decision-makers by according the promises 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.
There may be some inherent unfairness in not forcing a state actor to keep its substantive promises. In private law, for example, doctrines such as estoppel, waiver and abuse of process hold private parties to their substantive representations. In the public sphere, Canadian courts remedy a breach of promise by according parties additional procedural rights.
But is there a valid reason for this distinction in private and public (administrative) law? While courts may not want to legislate undesired outcomes by a state actor, there is also an aspect of unfairness in not compelling the state to adhere to its past practices and representations. This is particularly so where the past practice or representation was clear and there exists a significant power imbalance between the promisee and the state.
For these reasons, the doctrine of legitimate expectations may be ripe for reconsideration in Canada.
The recognition of substantive remedies for a breach of the doctrine would align Canadian law with its U.K. counterparts and enforce legitimate expectations where such enforcement is necessary and equitable.
Marco P. Falco is a partner in the litigation department at Torkin Manes LLP in Toronto who focuses on judicial review and civil appeals. He is also co-chair of Torkin Manes' diversity and inclusion committee.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.