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This alternative framework, which has since been received into the mainstream of Canadian administrative law and which has appropriately come to be known as the 'fairness' doctrine, had not received much judicial attention in Canada at the time of McCann, although it had been developed in a series of cases decided by the English Court of Appeal. It was on these cases that the plaintiffs relied.

In In re H.K. 136 an immigration officer, acting under the Commonwealth Immigrant's Act of 1962, had refused entry to a Commonwealth citizen on the basis that he was over sixteen years of age. An application was made for a writ of habeas corpus and an order of certiorari quashing the immigration officer's decision on the basis that the officer was acting in a judicial or quasi-judicial capacity, and that the rules of natural justice required that the officer should have given the boy full opportunity to remove the officer's impression that the boy was over sixteen years old. Lord Parker CJ, in the course of his judgment, made the following statement:

I doubt whether it can be said that the immigration authorities are acting in a judicial or quasi-judicial capacity as those terms are generally understood but at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must, at any rate, give the immigrant an opportunity of satisfying him of the matters in the sub-section and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, not merely bringing one's mind to bear on the problem, but acting fairly [emphasis added]137

In R. v. Gaming Board, ex parte Benaim 138 the plaintiffs applied to the Gaming Board for Great Britain for a certificate of consent which they were required to obtain in order to apply for licensed premises under the Gaming Act of 1968. The plaintiffs were given an interview at which they answered questions based on information already in the board's possession, although its source and detailed content were not disclosed to the applicants. They were then invited to supply further information in writing, after which the board refused to grant the certificate. The plaintiffs sought an order of certiorari to quash the decision on the basis that the board had not observed the rules of natural justice. In considering this, the Court of Appeal refused to classify the decision as administrative or judicial. Citing with approval the judgment of Lord Parker in In re H.K., Lord Denning said that the proper approach was to consider the task of the Gaming Board and the matters on which they had to make determinations. On this basis, he held that the board did have a duty to act fairly. Lord Denning went on to consider the nature of the information that the board would have before it, its source, and its confidentiality, and concluded that the concept of fairness required not that the plaintiffs should be given the source of the information, but they should be given sufficient information so that they would be able to answer any matters of concern to the board. As Lord Denning put it:

If the Gaming Board were bound to disclose their source of information no one would 'tell' on these clubs for fear of reprisals. But without disclosing every detail, I should have thought that the Board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair and the Board must at all costs be fair. If they are not, these courts will not hesitate to interfere.139

The third of these cases, In re Pergamon Press Ltd. ,140 concerned investigation into the affairs of Pergamon under the Companies Act by inspectors appointed by the Board of Trade. During the course of the investigation, the directors of the company refused to answer questions without being given certain assurances. They claimed, in effect, that the inquiry should be conducted as if it were a judicial inquiry in a court of law. The inspectors, while undertaking not to criticize anyone in their report without giving him the opportunity of explanation, had refused to give the assurances. In the course of his judgment Lord Denning stated that while the inspectors were not a judicial or quasi-judicial body, because of the consequences their report might have they were under a duty to act fairly. Lord Denning explained how the result of the discharge of the. inspectors' task could have the effect of ruining reputations or careers and that their report could lead to civil or criminal judicial proceedings. Sachs L.J. came to a similar conclusion on the duty to act fairly: 'It is ...not necessary to label the proceedings 'judicial,' 'quasi-judicial,' 'administrative,' 'investigatory'; it is the characteristics of the proceedings that matter, not the precise compartment or compartments into which they fall.'141

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