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Phrase of the Week - Legitimate Expectations Doctrine

Legitimate Expectations Doctrine

Legitimate Expectations Doctrine



Federal

The doctrine of legitimate expectations is a procedural doctrine with procedural remedies. The doctrine does not create substantive rights ... the doctrine cannot be used to supersede statutory requirements or other legally defined criteria. The doctrine only creates procedural rights to make representations or to be consulted where a representive has been prejudiced by relying on the representor's representations.

Sturdy Truck Body (1972) Ltd. v. Minister of National Revenue | 
1995 CarswellNat 419  (Fed. T.D.) at para. 20 |
Tremblay-Lamer J.

... the doctrine of legitimate expectations ... ensures that a public authority's undertakings, as to procedure to be followed, are met, provided those are not in conflict with its duty.

Fong v. Canada (Minister of Employment & Immigration) |
1993 CarswellNat (Fed. T.D.) at para. 20 |
MacKay J.

Nova Scotia

The legitimate expectations doctrine originated in England as a threshold mechanism for establishing entitlement to procedural fairness. In Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149 (Eng. C.A.), Lord Denning held that an administrative decision-maker may be obligated to afford a person the opportunity to make representations, provided “he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say” (p.170). In time, the doctrine also served to define the content of the fairness duty in cases where, by representation or past practice, decision-makers had led those affected to expect specific procedural safeguards, as in Hong Kong (Attorney General) v. Ng, [1983] 2 A.C. 629 (Hong Kong P.C.). See also D. Wright, “Rethinking the Doctrine of Legitimate Expectations in Canadian Administrative Law” (1997), 35 Osgoode Hall L.J. 139.
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While the doctrine has expanded in recent years under English law, where it may operate to secure substantive relief (see R. v. North & East Devon Health Authority (1999), [2001] Q.B. 213 (Eng. C.A.)), its function in Canadian law has remained a part of the procedural fairness duty.
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The legitimate expectations doctrine exists to ensure governmental actions in dealing with the public are fair, predictable and not arbitrary. It is important to keep this rationale in mind when determining, not only whether there are legitimate expectations, but whether those expectations have been fulfilled.
 
Jono Developments Ltd. v. North End Community Health Assn. | 
2014 CarswellNS (N.S. C.A.) at para. 66, 68, 71 |
Farrar J.A. (Bryson J.A. concurring)

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