There must be a rational connection between the evidence presented and the conclusions reached by the decision-maker.

The Supreme Court of Canada determined an administrative decision that affects the rights, privileges or interests of an individual triggers a duty of fairness.

Natural justice and administrative fairness are at the forefront of Ombudsman investigations. Sometimes people find it confusing to differentiate between these two terms. Comparing the two concepts, natural justice is to administrative fairness what due process is to criminal law. For example, if an accused is not informed of his or her rights, there is an error in process. Similarly, if an individual who is denied a service is not informed of his or her right to appeal, the process is flawed. An Ombudsman's duty is to bring fairness to the scrutiny of all actions of government. The Ombudsman will consider all factors when commenting on the fairness of government action.

The Alberta Ombudsman analyzes administrative fairness in a broad spectrum of decisions which affect people in a wide variety of ways. They range from decisions of an administrative tribunal made with a defined statutory mandate (for example: workers' compensation benefits, social assistance benefits and disciplinary sanctions for inmates in provincial correctional centers), to decisions where there is a less formalized or no formalized decision-making process. This includes decisions and actions of frontline employees such as employment standards investigators, day-care licensing investigators, child welfare investigators and vital statistics staff who issue birth certificates.

In determining fairness, the Alberta Ombudsman uses the following guidelines to assess whether a situation has been dealt with in an administratively fair manner.

ADMINISTRATIVE FAIRNESS GUIDELINES

1. Chain of legislative authority. What legislation created the authority or power to make a decision and to which decision-maker was the power granted?
2. Duty of fairness. The courts require that decision-making which affects the rights of individuals must follow a fair process. This duty of fairness means there must be procedural fairness in decision-making. We look for greater procedural protection if there is:
   • no right of appeal established within the statute
   • no further appeal mechanism within the department, agency, board or professional body
   • a substantial effect on the individual’s rights (i.e, loss of financial benefits)
3. Participation rights. Was the complainant given a full and fair opportunity to present their case to the decision-maker? Was there full disclosure of the case against the person, to the person?
4. Adequate reasons. There must be a rational connection between the evidence presented and the conclusions reached by the decision-maker. The decision and the reasons must be communicated clearly and identified by the decision-maker.
5. Reasonable apprehension of bias. We look for impartiality and independence of the decision-maker including relationships to all parties in the matter, both internally and externally.
6. Legitimate expectation. Did the decision-maker fail to honour a commitment or follow regular procedures?
7. Exercising discretionary power. We look to see how the discretion is established in the Act, Regulation, or Policy Guidelines, etc. Discretionary decisions are reviewed to determine if there is evidence of bad faith, improper purpose, or irrelevant considerations.
8. Was the decision reasonable? A reasonable decision does not equate to whether the decision is wrong or whether it might have been decided in a different way. A reasonable decision should indicate how the decision-maker(s) considered and assessed the arguments and evidence.