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Due Process Rights and Public Office Holders

For half a century, a challenging area of employment law has been the application of due process rights enjoyed by public office holders. The Supreme Court of Canada has now issued a seminal decision which severely curtails those rights.
The history of due process rights in the employment context can be tracked back to England’s House of Lords. In 1963, the House of Lords issued a decision which involved the dismissal of the chief constable of Brighton.
The House of Lords determined that the administrative body which had dismissed him had an obligation to provide him with reasons for his dismissal and accord him an opportunity to be heard in response to those reasons. Thus was established the right of procedural fairness which, since, has protected many a civil servant and public office holder from arbitrary dismissal.
This entitlement to procedural fairness is one which regular employees, hired on the basis of a contact of employment, do not enjoy. Regular employees, in a non-union setting, can be dismissed for non-cause reasons at any time as long as their employer has provided reasonable working notice or pay in lieu. Notably, the employer normally does not have to explain its reasons or give the employee any opportunity to defend herself against those reasons.
So, why should individuals employed in a public setting have this additional right of procedural fairness? The opinion of the House of Lords, later adopted in Canada, is based on the premise that there is a general legal duty of procedural fairness on every public authority when it makes decisions about the rights, privileges, and interests of individuals. 
This has grown to be a central principle of Canadian administrative law. Its purpose is to ensure that administrative decision makers act fairly in making decisions which affect the interests of individuals.
Its application to the world of employment law, however, has not been without its challenges. Principally, the challenge has been to distinguish public office holders who enjoy this additional right from normal workers employed under contract who must rely solely on the common law entitlement to reasonable notice of dismissal.
There has, to put it simply, been a lot of uncertainty as to whether the right of procedural fairness applies to particular positions. As an example, there have been conflicting court decisions on whether a middle manager employed by a municipality should be entitled to this right of procedural fairness.
In its recent decision, the Supreme Court of Canada has attempted to put an end to the uncertainty. Dunsmuir was employed as a court clerk and as a legal officer by the province of New Brunswick. It was determined that he was not right for the job and he was dismissed, on a without cause basis. He grieved the dismissal on the basis that the province had given no reasons for the dismissal and he’d had no opportunity to respond to his employer’s concerns.
The case made its way up through the court system, eventually arriving on the plate of the Supreme Court of Canada. That Court emphasized that most civil servants and public officers are now employed under contracts of employment. It determined that the historical distinction between public office holders and contractual employees is problematic and should be done away with (at least to the extent to which it triggers the applicability of the duty of procedural fairness).
The Court stated that it should be assumed that most public employment relationships are contractual in nature and, thus, do not attract the duty of procedural fairness. Unless a statutory authority dictates a duty of procedural fairness, only certain officers who are not protected by a contract of employment - such as ministers of the Crown and others who fulfill constitutionally defined state roles (such as judges) – should enjoy this additional right.
The Court found, as a result, that Dunsmuir was not entitled to the opportunity to hear the reasons for his dismissal and defend himself against those reasons. Dunsmuir was, surely, just the first of many public officials who will rue this decision by our top court.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to