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

If you receive an unfavourable decision from an agency’s appeal process, or object to the appeal process itself, you may have recourse to the courts.  Sometimes regulations give an individual a right to appeal directly to the courts.  If so, one should use this direct right to appeal rather than the general judicial review procedure.  However, even if an individual has no express statutory right to appeal to the courts, superior courts possess inherent jurisdiction to review administrative action to ensure that administrative decision-makers do not exceed the authority granted to them by statute.

For matters within the jurisdiction of the BC Legislature, the Judicial Review Procedure Act, RSBC 1996, c 241 [JRPA], provides for the judicial review of the “exercise, refusal to exercise, or proposed or purported exercise, of a statutory power” (JRPA, s 2).  This includes the power to review decisions “deciding or prescribing (a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or (b) the eligibility of a person to receive, or to continue to receive, a benefit or licence...” (JRPA, s 1).  In a proceeding under the JRPA, the court has broad powers to craft a suitable remedy; most often the case will be returned to the tribunal for reconsideration in light of the court’s findings of law or fact (see Section I.F.4: Available Remedies, below).  An application under the JRPA can be brought before a Supreme Court judge in Chambers.  Although this is a less expensive procedure than a trial, it may still be beyond the means of most individuals.  

A party applying for judicial review must first determine whether the Federal Court or a provincial superior court has authority to decide on the matter. As a general rule, provincial jurisdiction includes tribunals established within provincial constitutional jurisdiction and tribunals created by the province due to a delegation of powers by the federal government.

The procedures for a federal judicial review are set out in s 18.1 of the ''Federal Courts Act''. There is a '''30-day''' limitation period for applications to the Federal Court, which can be extended under s 18.1(2).  

A tribunal under provincial jurisdiction can be reviewed upon application to a judge in the BC Supreme Court. The procedural rules are described in the ''BC Supreme Court Civil Rules'', BC Reg 168/2009, available in the PolicyActs, Rules & Forms section of the [www.courts.gov.bc.ca/supreme_court BC Supreme Court website].  

The primary evidence for judicial review is the tribunal’s record of the hearing.  Generally, the court does not allow new evidence to be introduced at a judicial review hearing.

Similarly, a tribunal can be overruled if it applies the law incorrectly in other contexts.  The enabling statute which creates a given tribunal cannot grant it the authority to act illegally or to change the law.  

Different standards of review may be imposed depending on the issue that is under review and the nature of the tribunal. The law relating to standards of review is quite complicated; thus, for a more detailed discussion of the issues pertaining to the standards of review, one should refer to ''Dunsmuir'', above. See also the ''ATA'' for statutorily prescribed standards of review applicable to certain provincial tribunals. Generally, for questions of law that go beyond the tribunal’s specialized area of expertise, the standard of review will be '''correctness'''— i.e., the tribunal must get the law right.  

If a tribunal is interpreting its own enabling statute or a closely related statute with which it has particular familiarity or expertise (e.g., the Workers’ Compensation Board applying the ''Workers Compensation Act''), then the court will generally show some deference to the tribunal’s interpretation. The standard of review will generally be '''reasonableness'''.  

Likewise, for questions of fact, and for exercises of discretion (e.g., with respect to the appropriate remedy), the court will usually show deference to the judgment of the administrative decision-maker who saw the evidence first-hand. The standard of review will generally be '''reasonableness'''. A court does not usually review a tribunal’s discretionary decisions unless its discretion was not exercised in good faith,  was exercised for an improper purpose, was based on irrelevant considerations, or was otherwise unreasonable. The appropriate degree of deference depends on a number of factors, including the nature of the discretionary decision, the knowledge and expertise of the decision-maker, and the amount of discretion that is given by legislation. See ''Baker v Canada'' (Minister of Citizenship and Immigration), [1999] 2  SCR 817 [''Baker''],and ''Suresh v Canada'' (''Minister of Citizenship and Immigration''), [2002] SCC 1 (for ''Charter'' violations).  

A third, more deferential standard of review, patent unreasonableness, used to be applied in some circumstances. However, ''Dunsmuir'' has expressly done away with this standard of review, at least in the context of the common law. It is unclear at this time how ''Dunsmuir'' may have affected the standards of review dictated by the ''ATA'', which still makes reference to “patently unreasonable” findings. However, Binnie J offered the following ''obiter'' comments in ''Canada (Citizenship and Immigration) v Khosa'', 2009 SCC 12:

“The expression ‘patently unreasonable’ did not spring unassisted from the mind of the legislator. It was obviously intended to be understood in the context of the common law jurisprudence, although a number of indicia of patent unreasonableness are given in s. 58(3). Despite Dunsmuir, ‘patent unreasonableness’ will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. That said, of course, the legislature in s. 58 was and is directing the BC courts to afford administrators a  high degree of deference on issues of fact, and effect must be given to this clearly expressed legislative intention.”

Binnie J further stated that a “legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply ''Dunsmuir''  principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on ''Dunsmuir'' including a restrained approach to judicial intervention in administrative matters.”

The content of the mandatory procedural fairness minimum will differ depending on the circumstances; see ''Baker'', above. Determining the precise procedural requirements of a given case is rarely clear cut, and an extensive body of case law exists addressing these issues in various contexts.

The courts will allow tribunals considerable latitude in establishing procedures (while keeping in mind what is fair).  However, a tribunal is required to be procedurally consistent.  Where a tribunal informs an individual that a certain procedure will be followed, it will normally be considered unfair to follow a different procedure.

Although many statutes have limitation periods, even where there is no limitation period, any delay in holding a hearing must be within reasonable limits. No one has the right to an adjournment; however, tribunals should consider the amount of notice, the gravity of the consequences of the hearing, the degree of disclosure, and the availability of counsel when deciding whether to allow an adjournment.

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 his or her 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 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 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.  However, disciplinary hearings may be to a mixed standard requiring proof beyond a reasonable doubt for some elements.  

A party may also challenge a tribunal decision via a civil action for a declaration or injunction. For non-statutory tribunals, this is the only method of challenge. This is also the only method of challenge wherein the court may grant damages.