Judicial and quasi-judicial proceedings can be decleared null for serious (fatal) breaches of procedural fairness guarantees stemming from the “doctrine of legitimate expectations” recently canvassed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 by Doherty J.A., for the court in Libbey Canada Inc. v. Ontario (Ministry of Labour) 1999 CanLII 1530 (ONCA), (1999), 169 D.L.R. (4th) 416; 42 O.R. (3d) 417 (C.A.) at 435-6 posted at http://www.canlii.ca/on/cas/onca/1999/1999onca113.html

Certain points must be noted in respect of the doctrine of legitimate expectation: 

1. It is procedural only and no substantive rights are created. Where applicable, it creates only a right to make representations or be consulted. It does not fetter the decision following the representation or consultation: Reference re: Canada Assistance Plan (B.C.) 1991 CanLII 74 (S.C.C.), (1991), 83 D.L.R. (4th) 297 at p. 319, [1991] 2 S.C.R. 526, 1 Admin. L.R. (2d) 1.

2. It binds the authority in respect of procedure only if the procedure does not conflict with the authority's duty: Attorney-General of Hong Kong v. Ng Yuen Shiu, supra; Gaw v. Canada (Commissioner of Corrections) (1986), 19 Admin. L.R. 137, 2 ET.R. 122, 36 A.C.W.S. (2d) 1.

3. It has no application to a body exercising purely legislative function: Canada (Attorney-General) v. Inuit Tapirisat of Canada 1980 CanLII 21 (S.C.C.), (1980), 115 D.L.R. (3d) 1, [1980] 2 S.C.R. 735, 33 N.R. 304; and Reference Re Canada Assistance Plan (B.C.), supra. 

The doctrine of legitimate expectations can affect the content of the duty of procedural fairness or impose procedural fairness requirements where none would otherwise exist. The Supreme Court of Canada has recognized the doctrine in three cases - Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817  - Although Supreme Court of Canada  did not give effect to the doctrine in any of them. Function of this doctrine is limited as it is a doctrine of procedural fairness only. It creates no substantive rights.

Gauntheir J., in Mackin v. New Brunswick (Minister of Finance)  Rice v. New Brunswick, [2002] 1 S.C.R. 405, 2002 SCC 13 at para 162 : administrative law doctrine of legitimate expectation as set out in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 does not apply "to a body exercising purely legislative functions”.

The requested stay orders and the interim cost order in favour of the appellants to permit compliance with Rule 20 if indispensible, is necessitated by allowing that safeguard to respect the obiter of Lamer J. in Reference Re Section 94(2) of the Motor Vehicle Act at p. 310: "the history of liberty has largely been the history of observance of procedural safeguards." Our liberties must not be violated without them. The respondent alone do not have the monopoly on the procedural safeguards. the appellants also do. That is mandated by the doctrine of legitimate expectations of procedural safeguards and imposed on the court an immutable duty of procedural fairness. (see: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 861). In the case at bar that duty imposes positive obligations on the state (court) to make the statutory right of review effective by taking all necessary steps including state funded legal counsel (see: R. v. Robinson (1989), 51 C.C.C. (3d) 452 (Alta. C.A.), R. v. Johal (1998), 127 C.C.C. (3d) 273 (B.C.C.A.) and New Brunswick (Minister of Health and Community Services) v. G.(J), [1999] 3 S.C.R. 46.). It is mandatory that the Registrar uphold the constitutional principle that any review provided by statute or common law "must proceed fairly." (see: R. v. Pan; R. v. Sawyer (2001), 155 C.C.C. (3d) 79 (S.C.C.) at 120 per  Arbour J.) which is not how the applications of the appellants have been processed thus far in B. C. courts or in the Supreme Court of Canada. 

"The applicable principle is sometimes stated under the rubric of `reasonable expectation' or `legitimate expectation'.

 Hammond v. Assn. Of British Columbia Professional Foresters (1991), 47 Admin. L.R. 20 (B.C.S.C.), stands for the proposition that it is a breach of the duty of fairness if an administrative body chooses to implement and abide by a procedure and then neglects to follow the very procedure that was implemented

In Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16; (1989), 61 D.L.R. (4th) 313; 8 Imm. L.R. (2d) 20; 95 N.R. 385 (C.A.); at page 32, Mr. Justice Hugessen adopted the following paragraphs from reasons of Lord Fraser of Tullybelton in Attorney General of Hong Kong v. Ng Yuen Shiu at page 638

“...when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct. In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits.” [emphasis added]

It has a respectable history in administrative law and was most forcefully stated by the Privy Council in the case of Attorney General of Hong Kong v. Ng Yuen Shiu , [1983] 2 A.C. 289 (P.C.).

Improper changing of rules in mid-proceeding from requiring representation by counsel to dispensing with it is contrary to the principles of law that apply to this sudden shifty conduct of the matters stated in  This rule of administrative law is also known as “legitimate expecation created by the tribunal” which must be consistenly  applied and is binding upon the tribunal. This  doctrine of legitimate expectations is essentially procedural but mandatory. It was outlined by Hugessen, J.A., in Bendahmane v. Minister of Employment and Immigration [1989] 3 F.C. 16; 95 N.R. 385, at page 31, when he outlined: "The applicable principle is sometimes stated under the rubric of `reasonable expectation' or `legitimate expectation'.  It has a respectable history in administrative law and was most forcefully stated by the Privy Council in the case of Attorney General of Hong Kong v. Ng Yuen Shiu , [1983] 2 A.C. 289 (P.C.). In Bendahmane v. Canada (Minister of Employment & Immigration  at page 32, Mr. Justice Hugessen adopted the following paragraphs from reasons of Lord Fraser of Tullybelton in Attorney General of Hong Kong v. Ng Yuen Shiu: “.when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty”. (See also: Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System) (T.D.), [1996] 3 F.C. 259  Docket(s): T-154-96 also known as Canadian Red Cross Society blood sytem inquiry.)

In the opinion of their lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits.'"

After citing a number of British (To those cited, one may add R. v. Secretary of State, [1987] 2 All E.R. 518; R. v. Secretary of State, [1985] 1 All E.R. 40.) and Canada (Other cases may be added. See Gaw v. Commr. of Corrections (1986), 2 F.T.R. 122; 19 Admin. L.R. 137; Bawolak v. Exroy Resources Ltd. (1992), 11 admin. L.R. (2d) 137 (Que. C.A.); Lehndorff United Properties (Canada) Ltd. v. Edmonton (City) (1993), 146 A.R. 37; 14 Alta. L.R. (3d) 67 (Q.B.); Pollard et al. v. Surrey (District) et al. (1993), 25 B.C.A.C. 81 and 43 W.A.C. 81 (C.A.); Sierra Club of Western Canada v. British Columbia (Attorney General) (1991), 83 D.L.R. (4th) 708 (B.C.S.C.) (doctrine not applied); Furey et al. v. Board of Education (Roman Catholic) of Conception Bay Centre et al. (1993), 108 Nfld. & P.E.I.R. 328; 339 A.P.R. 328; 104 D.L.R. (4th) 455 (nfld.) (doctrine not applied).) cases dealing with the doctrine, the Supreme Court of Canada in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R (2d) 134, at 1204, stated the following:

"The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation."

In Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 the Supreme Court of Canada further explained:

There is no support in Canadian or English cases for the position that the doctrine of legitimate expectations can create substantive rights. It is a part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can create a right to make representations or to be consulted. It does not fetter the decision following the representations or consultation.

[78].. The doctrine of reasonable expectations does not create substantive rights, and does not fetter the discretion of a statutory decision-maker. Rather, it operates as a component of procedural fairness, and finds application when a party affected by an administrative decision can establish a legitimate expectation that a certain procedure would be followed: Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557; Baker, supra, at para. 26. The doctrine can give rise to a right to make representations, a right to be consulted or perhaps, if circumstances require, more extensive procedural rights. But it does not otherwise fetter the discretion of a statutory decision-maker in order to mandate any particular result: see D. Shapiro, Legitimate Expectation and its Application to Canadian Immigration Law (1992), 8 J. L. & Social Pol'y 282, at p. 297.