Procedural Fairness and or Natural Justice

 

 

Procedural Fairness and or Natural Justice

Procedural Fairness and or Natural Justice is a term that denotes specific procedural rights in the English legal system and the systems of other nations which may be based on this. While the term natural justice is often a general concept, it has largely been replaced and extended by the more general term: “duty to act fairly”. What is required to fulfill this ‘duty fairly’ of course, depends on the context in which the matter arises.

There are two rules that natural justice should be concerned with.

• These are the rule against bias (nemo iudex in causa sua) and
• The right to a fair hearing (audi alteram partem).

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of:

1.  actual bias;
2. imputed bias; 
3. apparent bias.  

 Actual bias is very difficult to prove in practice, while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias.
The inherent right to a fair hearing by the Judiciary, requires that individuals should not be penalized, for that reason affecting their rights or legitimate expectations, unless they have been first given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case.

The mere fact that a Judge’s decision affects rights or interests is sufficient to subject the Judge’s decision to the procedures required by natural justice.

Ex parte hearings cannot be considered fair!

Introduction The Court of Appeal of New Brunswick is the highest court in the Province

  http://www.gnb.ca/cour/03coa1/index-e.asp

The Court of Appeal of New Brunswick , is a Court of Law that is empowered to hear an appeal of any decision from the lower Trial Court Division or any other lower tribunal on the premise The Court of Appeal of New Brunswick  is a Court of Law that is intended to correct the errors made by lower Courts.

The Court of Appeal of New Brunswick is usually restricted to examining whether the Court and or Judge, from which the decision is being Appealed, further that the Judge had made the correct legal determinations (for example) not biased as is there a Reasonable A pprehension of Bias, rather than the presiding judge objectively hearing direct evidence, thereby correctly determining that the facts are based on argument offered by the parties to the action.
 Furthermore, Court of Appeal is usually restricted to hearing Appeals based on matters that were originally brought up before the Trial Court. Hence, Court of Appeal will not, however, consider an appellant’s argument if it is based on a theory that is raised for the first time in the Court of Appeal hearing.

Parties before the Court of Appeal should be allowed one appeal as of right. This means that a party who is unsatisfied with the outcome of any hearing and or trial may bring an ‘appeal’ to contest that outcome. The Court of Appeal must find an error on the part of the court below that justifies upsetting the verdict. Only a small proportion of New Brunswick’s Trial Court decisions result in successful appeals.

“The Court of Appeal is the highest court in this province; hears appeals in criminal and civil matters. It hears appeals from the Court of Queen’s Bench, Probate Court, Provincial Court (indictable offences) and various administrative tribunals, for example, the appeals tribunal under the Workplace Health, Safety and Compensation Commission Act. The court sits in Fredericton, although it may sit elsewhere if the Chief Justice of New Brunswick so directs.” per (http://www.gnb.ca/cour/overview-e.asp#ca)
In our jurisdiction, the court system is divided into three levels:

1.  the trial division court:  initially hears cases and reviews evidence and testimony to determine the facts of the case; 
2. the appellate court; 
3. and a supreme court (or court of last resort) which primarily reviews the decisions of the intermediate courts. A jurisdiction’s supreme court is that jurisdiction’s highest appellate court.

To understand what is the function The Court of Appeal of New Brunswick, it may be helpful to understand the concepts of Procedural Fairness and or Natural Justice, which The Court of Appeal of New Brunswickl concerns itself with.