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

{{LSLAP Manual TOC|expanded = complaints}}

Most government agencies have some sort of formal review process.  Some agencies have little difference between formal and informal review, while others have sophisticated, published processes that closely resemble courtroom procedure.  Whatever the problem is and whichever government player is involved, be sure to research the review process before launching a formal appeal.  Factors such as cost, location of the hearing, type of submissions heard, and evidence required will all affect the choice of whether to pursue a resolution through the formal review process.

'''NOTE: Pay attention to time limits.''' Many worthy cases have been lost because an advocate failed to pay proper attention to limitation periods.  Some limitation periods are very short.

See '''Section III.C.1.c(2): Procedural Fairness''' of this chapter below for more on procedural fairness.

=== 1. Judicial Review ===

A party applying for judicial review must first determine whether the Federal Court or a provincial superior court has the 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.

When considering judicial review of federal tribunals, look at both the ''Federal Courts Act'', RSC 1985, c F-7, and the particular tribunal’s governing statute.  Often the governing statute sets out important limitation periods and procedures.  

The procedures for a federal judicial review are set out in s 18.1 of the ''Federal Courts Act''.

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 Acts, Rules & Forms section of the BC Supreme Court website: [http://www.courts.gov.bc.ca/supreme_court www.courts.gov.bc.ca/supreme_court].  

Tribunals that can be reviewed under the ''JRPA'' include the Employment and Assistance Appeal Tribunal, the Workers’ Compensation Board, and the Residential Tenancy Branch.  

In general, only the parties who had standing before the tribunal or who are directly affected by the tribunal’s decision may apply for judicial review.

The time limit to apply to the Federal Court for judicial review under section 18.1 of the ''Federal Courts Act'' is '''within 30 days after the decision or order was first communicated''', although it can be extended by the Federal Court (s 18.1(2)).  However, other federal legislation may direct different timelines.  For example, for decisions made pursuant to the ''Immigration and Refugee Protection Act'', SC 2001, c 27, appellants must look to both that statute and the ''Federal Courts Act''.  

For provincial tribunals, applicants must refer to the ''Administrative Tribunals Act'', SBC 2004, c 45 [''ATA''] and the specific statute  governing the tribunal; '''within 60 days of the issuing date of the decision''' is the default (''ATA'' s 57). Limitation periods may be extended pursuant to section 11 of the ''JRPA'' unless another enactment provides otherwise or the delay will result in substantial prejudice or hardship to another person affected.

While an application for judicial review is pending, existing orders from a tribunal must be obeyed, and the tribunal has the discretion to continue with the proceedings.  However, an applicant can ask the court to stay the tribunal’s order or to prohibit the proceedings from continuing.  

David Mossop et al, ''Representing Yourself in a Judicial Review'', 5th ed (Vancouver: Community Legal Assistance Society, 2015), online: <https://judicialreviewbc.ca/>.

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. However, there is a narrow exception to this: a party may submit new evidence speaks to the procedural fairness or jurisdictional issue [''[https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc2549/2013bcsc2549.html?autocompleteStr=Davies%20v%20Halligan%2C%202013%20BCSC%202549&autocompletePos=1 Davies v Halligan]'', 2013 BCSC 2549].

Applicants who cannot afford the filing fees for judicial review may apply for an indigency order pursuant to Rule 20-5 of the BC ''Supreme Court Civil Rules.'' Appendix C, Schedule 1 lists the fees payable to the Crown, unless otherwise provided by statute. Indigency status affords the applicant relief from all court fees and is available to those with low income and limited earning potential.  Note that the process for indigency applications is complicated.

Assuming a party can resort to the courts to review the decision of a tribunal, there are limitations as to the scope of judicial review.  

An administrative body has only as much power as its governing statute grants to it.  This grant of authority is limited in both the context and the manner in which the exercise of authority can be applied.  If an administrative decision-maker exceeds their authority, the court can step in to provide a remedy.

Therefore, recent decisions by the BCCA seem to suggest that the standard of reasonableness from ''Vavilov'' and the standard of patent reasonableness from the ''Administrative Tribunals Act'' are separate. The standard that applies on judicial review seems to depend on the tribunal and issues involved.

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.  

=== 2. Ombudsperson ===

The ''Act'' has the following main features: