In our last newsletter, we talked about the types of fairness an ombudsman deals with: substantive, procedural and equitable fairness. This time let's take a closer look at substantive and procedural fairness. Equitable fairness - which is more complicated - will be tackled in a later issue.
Substantive fairness is about the fairness of the decision itself.
Procedural fairness is about the process that led to the decision.
So what do these terms actually mean?
When this office looks at the substance of a decision we ask: was there legal authority to make the decision? Was the decision based on relevant information? Was the decision maker biased? This makes up the substance of a decision. It's very important that only information that's relevant to the decision is collected and used. It's also important that all relevant information is made available. Another very important element is procedural fairness - the decision-making process. Here we ask ourselves; was the complainant given enough information? Was the complainant given an opportunity to make his or her case? Did the decision maker give reasons? Is there a policy or process for making decisions? Anyone personally affected by the decision should be able to present their point of view and respond to facts, presented by others, which will be considered by the decision-maker.
EXAMPLE - A resident relies on advice from the City when preparing an application for a City home improvement grant. He is subsequently declared ineligible by the City. In defending its decision to disqualify the applicant, the City only looked at the program criteria. It did not consider the role staff may have played by providing incorrect information to the resident. In other words, it didn't look at all the relevant information before reaching a decision.
Time can be important in the decision making process. Sometimes even the postponement of a decision may be considered administratively unfair. For example, if a member of the public challenges a By-law application in order to avoid being personally and financially affected, a decision about that application is only really fair if it comes BEFORE that impact happens. In these cases, delays have to be explained. Timeliness is also one of the things that we consider when a resident initiates a complaint with us. That is why we don't always operate on a 'first come first serve' basis. Want to more about how we prioritize complaints? Details are coming online later this year.
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