Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 2, Administration of FOIP. Updated 7 March 2023. 34 The important purpose of having procedural fairness is to ensure that, in the end, the result of an investigation or review can be fairly relied upon with confidence. The courts have held on a considerable number of occasions that a proceeding before an administrative decision maker need not be absolutely perfect in order for it to comply with the duty of substantive or procedural fairness. The Supreme Court of Canada in R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562 at paragraph 45, observed in a general sense that: A fair trial must not…be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.38 The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected in a given set of circumstances (i.e., “the specific context of each case”).39 The Commissioner conducts reviews and investigations following the principles of procedural fairness within the limits of FOIP. For example, while sharing submissions amongst parties is procedurally fair, sections 46 and 53 of FOIP limit what the Commissioner can share with other parties during a review. Further, while FOIP provides the opportunity to make submissions to the Commissioner, it specifically limits the “right to be present during a review” or to have access to submissions by other parties made to the Commissioner before or after a review.40 All parties to a review or investigation are given the opportunity to provide representations (submissions) to the Commissioner. Representation means the documents, other evidence and/statements or affidavits provided by a party setting out its position with respect to the information at issue and often referred to as a submission.41 38 R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562 at [45]. Also cited in Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2012 ABKB 595 (CanLII) at [57]. 39 Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at [21] and [22]. Also cited in Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2012 ABKB 595 (CanLII) at [59]. 40 The Freedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01 at s. 53(3). 41 SK OIPC Rules of Procedure at p. 3.
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