# Baker Factors — Worked Examples The five Baker factors applied to specific administrative contexts. --- ## The Five Factors (Recap) 1. Nature of the decision 2. Nature of the statutory scheme 3. Importance of the decision to the individual 4. Legitimate expectations 5. Choices of procedure made by the agency --- ## Example 1 — RTB Eviction Hearing Standard RTB dispute resolution proceeding on a landlord's notice to end tenancy. ### Factor 1 — Nature of the Decision The RTB decision is adjudicative — it resolves a dispute between two parties based on evidence. Resembles a judicial process. Weight: strong for higher fairness content. ### Factor 2 — Statutory Scheme The RTA and Rules of Procedure provide specific procedural rights: - Notice of hearing - Right to attend and be heard - Right to submit evidence - Right to cross-examine (in participatory hearings) - Review or judicial review available Weight: framework provides substantial procedural protections; the statute sets a floor. ### Factor 3 — Importance to the Individual An eviction results in loss of home. For most tenants, this is a severe consequence — dislocation, cost, potential inability to find alternative housing. Weight: very strong for higher fairness content. ### Factor 4 — Legitimate Expectations The RTB has established practices: - Participatory hearings for contested matters - Written decisions with reasons - Time to prepare Departure from these practices without notice may attract concern. Weight: reinforces expectations of established procedure. ### Factor 5 — Agency's Choices RTB has considerable procedural discretion. Its choices are respected where they are procedurally fair. However, the choices cannot override factors 1-4. Weight: does not permit lower fairness where other factors demand higher. ### Content of Fairness in This Context - Notice of hearing and issues (satisfied by proper service of notice and pleadings) - Adequate time to prepare (Rules provide this) - Opportunity to make full submissions - Opportunity to challenge landlord's evidence - Consideration of the tenant's evidence and submissions - Reasoned decision addressing the arguments made - Availability of review ### Common Fairness Failures at the RTB - Insufficient time for oral hearing (rushed proceedings) - Cutting off submissions - Decision-maker signaling a predetermined outcome - Failure to address key evidence - Bald reasons that don't engage with tenant's submissions --- ## Example 2 — RTB Direct Request Certain RTB matters proceed by direct request (paper-based) rather than hearing. Different fairness content. ### Factor 1 — Nature Less adjudicative, more administrative when uncontested. ### Factor 2 — Statutory Scheme Specific rules govern direct request. Contested matters typically move to participatory hearing. ### Factor 3 — Importance If the decision has serious consequences (eviction), high importance still applies — but the procedure is designed for uncontested matters. ### Factor 4 — Legitimate Expectations Direct request procedures are known and consistently applied. ### Factor 5 — Agency's Choices The choice of direct request is legislatively authorized. ### Content of Fairness - Notice of the direct request procedure - Opportunity to object and trigger a hearing if the matter is contested - Clear timeline for objection - Fair application of the direct request criteria Where the tenant did not receive adequate notice of the direct request option, or was denied opportunity to convert to a participatory hearing, fairness may be breached. --- ## Example 3 — Professional Discipline Hearing Regulator hearing on alleged professional misconduct. ### Factor 1 — Nature Highly adjudicative, quasi-criminal in tone. ### Factor 2 — Statutory Scheme Professional regulation statutes typically provide extensive procedural rights. ### Factor 3 — Importance Loss of professional licence has severe consequences. Highest importance. ### Factor 4 — Legitimate Expectations Established procedural practices, precedential decisions. ### Factor 5 — Agency's Choices Respect for discipline body's choices, but consequences demand robust procedures. ### Content of Fairness - Full disclosure of the case to be met - Right to counsel - Right to call and cross-examine witnesses - Right to make submissions - Right to reasons - Right to appeal or judicial review Approaches close to trial-quality fairness. --- ## Example 4 — Immigration Refugee Determination Refugee protection claim before the Immigration and Refugee Board. ### Factor 1 — Nature Adjudicative. ### Factor 2 — Statutory Scheme Extensive procedural rules under IRPA and IRB regulations. ### Factor 3 — Importance Highest possible — potentially involves risk to life if refused and removed. ### Factor 4 — Legitimate Expectations Established RPD procedures. ### Factor 5 — Agency's Choices Substantial deference to expert tribunal on procedure. ### Content Robust fairness — full hearing, right to counsel, interpreter services, extensive disclosure, reasoned decision. --- ## Example 5 — Zoning or Planning Decision Municipal planning decision affecting a property. ### Factor 1 — Nature May be adjudicative (rezoning application) or legislative (bylaw). ### Factor 2 — Statutory Scheme Local Government Act and municipal bylaws provide the framework. ### Factor 3 — Importance Significant to the affected property owner but generally not affecting housing or livelihood as severely as eviction or discipline. ### Factor 4 — Legitimate Expectations Established public hearing processes. ### Factor 5 — Agency's Choices Municipalities have considerable procedural discretion. ### Content Public notice, opportunity to make submissions, transparent consideration. Fairness content is more modest than adjudicative proceedings but still meaningful. --- ## The Pattern Baker analysis shows: - Adjudicative + high stakes → high fairness content - Administrative + low stakes → lower fairness content - Established practice → sets expectations - Statutory rights → floor, not ceiling For any tribunal decision, run the five factors. The resulting content tells you what procedures were required. Deviation from those procedures supports a fairness argument. --- ## Application in a JR For a procedural fairness ground in a JR petition: ``` 1. Identify the specific procedure the tribunal followed (or didn't) 2. Apply the Baker factors to determine what fairness required in this specific context 3. Compare the required procedure to what actually happened 4. Show the gap 5. Argue that the gap breaches the duty of fairness 6. Show materiality — that the breach affected the outcome (usually presumed for significant procedural defects) ``` The Baker analysis is not a formulaic checklist. It's a structured way of asking: given everything about this decision and this tribunal, what fairness was required, and did the tribunal deliver it?