Office of the Information and Privacy Commissioner. Guide to LA FOIP, CHAPTER 2, Administration of LA FOIP. Updated 2 March 2023. 20 • Acting only on the basis of logically probative evidence.25 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.26 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”).27 The Commissioner conducts reviews and investigations following the principles of procedural fairness within the limits of LA FOIP. For example, while sharing submissions amongst parties is procedurally fair, section 42 (conduct of a review) of LA FOIP and section 46 (confidentiality) of The Freedom of Information and Protection of Privacy Act (FOIP)28 limit what the Commissioner can share with other parties during a review. Further, while LA 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.29 25 SK OIPC, Presentation, Procedural Fairness: Factors that contribute to making an administratively fair decision. 26 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]. 27 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]. 28 Section 46 of FOIP is adopted by LA FOIP pursuant to section 48 of LA FOIP. Therefore, this provision applies in the context of LA FOIP as well. 29 The Local Authority Freedom of Information and Protection of Privacy Act, SS 1990-91, c L-27.1 at s. 42(3).
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