Difference between revisions of "Review of Administrative Decisions for Public Complaints (5:III)"

There is already conflict in the British Columbia courts on whether or not the ''Vavilov'' decision effectively merges these two standards, and it is likely to be addressed by the BC Court of Appeal in the near future, so a search for the most recent case on the standard of review in British Columbia is strongly recommended.

Generally, tribunals must follow procedural norms, although their procedures may be less formal than those of a court.  Tribunals must follow any procedures required by statute or regulation.  However, the legislation is often largely silent on procedural requirements, and tribunals are often given a wide discretion within which to operate.  Nevertheless, the superior courts are constitutionally bound to uphold the rule of law and will not allow procedural laxity to result in unreasonable prejudice to those affected by administrative decisions.  That is, the legislature is presumed to have intended that the administrative body follow certain procedural fairness minimums as a precondition to exercising its authority.  

Fundamental procedural rights include the right to know the case that must be met and to respond, and the right to an impartial decision-maker.  In some cases, procedural fairness requirements might also include the right to advanced notice, the right to an oral hearing, the right to be represented by counsel, or the right to formal written reasons.  In all cases, the prejudice to the accused from denying a procedural norm must be balanced against the need to make administrative decisions efficiently.

Generally, the tribunal’s procedural decisions will be assessed on a standard of '''fairness'''. The court will show deference to the administrative body’s discretionary choice of procedures, provided that the selection is fair in the circumstances. See e.g. ''Baker'', above.  

For provincial tribunals to which the ''ATA'' applies, the Act provides: “questions about the application of common law rules of natural  justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted '''fairly'''” (ss 58(2)(b) and 59(5)).  

Tribunals have a common-law duty to act fairly.  At its most basic level, the doctrine of fairness requires that a party be given the opportunity to respond to the case against them.  The circumstances determine whether this response is a written objection or a full oral hearing.  As a corollary to the right to present one’s case, the legal maxim that only the people who hear the case may decide on it applies to tribunals.  The tribunal must meet quorum but need not be unanimous.

No one has the right to an adjournment. Tribunals generally hold their hearings within a reasonable time even when their statutes have no limitation period. Nonetheless, tribunals may grant an adjournment when necessary. In deciding whether to allow an adjournment, tribunals should consider the amount of notice, the gravity of the consequences of the hearing, the degree of disclosure, and the availability of counsel.

If there is a hearing, a party is entitled to be present while evidence or submissions are presented.  The right to be present at a hearing normally includes a party’s right to appear with counsel and their right to an interpreter, though normally a tribunal is not required to pay for these services.  The tribunal has discretion as to whether the hearing is public or private (although there is a presumption in favour of public hearings).  At any hearing, the tribunal must gather and weigh the evidence.  Relevance is the primary consideration when determining admissibility.  Not all administrative decisions involve an oral hearing. A tribunal may have the power to make certain decisions solely on the basis of written submissions.

The onus of proof is normally to a civil standard, i.e., that the events alleged occurred on a balance of probabilities (more than 50% likely).  However, disciplinary hearings may be to a mixed standard requiring proof beyond a reasonable doubt for some elements.  

All decision-makers are expected to act in good faith and not to discriminate on the basis of irrelevant criteria.  Parties are entitled to a decision made by persons untainted by the appearance of bias or conflicts of interest.  A tribunal has a duty to at least consider exercising any discretion it may have.