Sachs L.J. went on to explain that in deciding, in the words of Lord Reid in Ridge v. Baldwin, 'what a reasonable man would regard as fair procedure in particular circumstances,'142 careful regard must be had for the scope of the proceeding, the source of its jurisdiction, the way in which it is normally conducted, and its objectives. He expressed the view that, given the delicate task the inspectors faced in weighing what in many cases would be confidential information and the need to protect the confidentiality of sources, there must be real flexibility in the application of the concept of fair play.

By 1975 the fairness doctrine had already met with some approval in judgments of members of the House of Lords and the Privy Council. In Pearlberg v. Varty,143 Lord Pearson commented: 'Where some person or body is entrusted by Parliament with administrative or executive functions there is no presumption that compliance with the principle of natural justice is required although, as Parliament is not presumed to act unfairly, the courts may be able, in suitable cases (perhaps always) to imply an obligation to act with fairness.'144

Shortly thereafter, the Privy Council also took up the concept of fairness in a New Zealand appeal .145 Lord Morris of Borth- Y -Gest, speaking for the majority, said that 'natural justice is but fairness writ large and juridically. It has been described as "fair play in action." Nor is it a leaven to be associated only with judicial or quasi-judicial occasions.'146

The plaintiffs in McCann submitted that the 'fairness' doctrine had a flexibility that was lacking in the all-or-nothing judicial-versus- administrative approach, and that this flexibility, which emphasized the balancing of the various factors and interests in a particular situation, was peculiarly appropriate to the issues facing the court in the area of prison decision-making. It was that flexibility which had also characterized the American due process decisions where the basic inquiry was whether the individual interest in avoiding grievous loss outweighed the governmental interests in summary adjudication. The plaintiffs argued that by using the 'fairness' doctrine the court could fashion a procedural code for the prison that reflected both the reality of the impact of solitary confinement decisions on a prisoner's life and the reality of prison administratrors' need, in some cases, for taking emergency action and for keeping confidential certain kinds of information that may have impelled them to segregate prisoners.

At the time of McCann, the fairness test had not yet been embraced by any appellate court in Canada, although it had been the subject of judicial comment in Re Beauchamp,147 a decision of the Ontario High Court. In that case the prisoner argued that suspending his parole without telling him the reason for doing so deprived him of the right to be informed promptly of the reason for his arrest or detention secured by section 2(c) of the Canadian Bill of Rights. Mr. Justice Pennell dismissed the application on the authority of the decision of the Supreme Court of Canada in Ex parte McCaud148 There the court had held that the provisions of section 2(e) of the Canadian Bill of Rights did not apply to the question of the revocation of parole under the Parole Act since revocation was a decision within the absolute discretion of the parole board as an administrative matter and was not in any way a judicial determination. Mr. Justice Pennell went on to state:

However that may be, I am of the view that ...the Board must act fairly in accordance with the principles of proper justice. I do not suggest that the National Parole Board is required to invoke the judicial process. But its decisions are of vital importance to the inmate since his whole future may be affected. In my judgment, fairness demands a consideration of the inmate's side of the story before revoking his parole. I appreciate that, in saying that, it may be said that I am going further than is permitted in matters where there is no duty to act judicially or quasi-judicially. When, however, that has been said, the fact remains that the revocation of parole is akin to a punitive measure which carries with it a duty to act fairly.149

The fairness test had also been referred to in the majority judgment of the Supreme Court of Canada in Howarth v. National Parole Board.I50 In that case the Supreme Court of Canada considered for the first time since the enactment of the Federal Court Act whether a decision of the National Parole Board could be reviewed under section 28(1) of the act. That section precludes review by the Federal Court of Appeal of decisions of 'an administrative nature not required by law to be made on a judicial or quasi- judicial basis.' Counsel for Howarth had sought to distinguish the earlier decision of Ex parte McCaud on the basis that the Federal Court Act had introduced an expanded form of judicial review, and the court therefore was not bound by the classification set out in McCaud. The majority of the Supreme Court rejected that argument, affirmed the McCaud decision, and held that revocation of parole was a decision of an administrative nature not susceptible to judicial review under section 28.

Although no Bill of Rights issue was raised in Howarth, in the following year in the case of Mitchell v. The Queen 151 the Supreme Court was faced with a challenge to a parole revocation relying, inter alia, on section 2(e) of the Bill of Rights on the ground that failure to inform a parolee of the reasons for the suspension and revocation of his parole constituted a denial of fundamental justice. The majority of the Supreme Court again dismissed the application on the basis that 'the very nature of the task entrusted to the Parole Board would make it necessary that such a Board would be clothed with as wide a discretion as possible and that its decision should not be open to question on appeal or otherwise be subject to the same procedures as those which accompany the review of decisions of a judicial or quasi-judicial tribunal.'152

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