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The Advisory Review Board was created under the Mental Health Act to review annually all patients who were confined in psychiatric institutions after having been charged with criminal offenses and found not guilty by reason of mental disorder. A report would then be provided to the Supreme court of Canada on who would make the decision regarding release. The Act did not allow for Procedural fairness of patient as they were not given a chance to be heard.


  1. What level of procedural fairness is attracted by the review hearing, given that it is a preliminary decision?


Application granted.


On the issue of review, Grange held that although the Lieutenant General was not bound to act on the recommendations in the Board's report, the favourable recommendation was essentially the only chance of release, and thus this attracted at least some procedural fairness.

Turning to the disclosure issue, Grange argued against the judicial/quasi-judicial dichotomy, preferring the duty to act fairly. He held it is clear that one of the rules of natural justice is that "[a] party must have an adequate opportunity of knowing the case he has to meet, of answering it and of putting his own case". While the Chairman may have correctly read the Act as not permitting disclosure of the records from the Medical Centre to the applicants, he did not correctly consider whether he had the ability to hand over records which had been received by the Board for the review. Grange remitted the matter to the Board for consideration with regard to these reasons.

O'Driscoll, in dissent, argued that the non-binding nature of the report did not attract review at all.


  • Non-dispositive or preliminary decisions will not trigger procedural fairness, but as a decision becomes increasingly final, the threshold drops.
  • Where there is merely rubber stamping of a preliminary decision, it can be argued that the decision is being made by the preliminary decision maker.
  • The proximity between the preliminary decision maker/investigator and the final decision maker is critical in determining whether there is a duty of fairness.