Anonymous

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

From Clicklaw Wikibooks

Review of Administrative Decisions for Public Complaints (5:III) (view source)

Revision as of 23:11, 22 August 2022

6 bytes removed ,  23:11, 22 August 2022
→‎(c) Standards of Review
Line 105: Line 105:
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 and depends on which tribunal is involved.
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 and depends on which tribunal is involved.


Recently, the Supreme Court of Canada in [https://www.canlii.org/en/ca/scc/doc/2019/2019scc65/2019scc65.html%20Canada%20(Minister%20of%20Citizenship%20and%20Immigration ''Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65''] revised the rules for determining the standard of review. Generally, for all decisions, the presumed standard of review will now be '''reasonableness''', unless legislative intent or the rule of law may require a different standard of review. The court stated:
Recently, the Supreme Court of Canada in [https://www.canlii.org/en/ca/scc/doc/2019/2019scc65/2019scc65.html%20Canada%20(Minister%20of%20Citizenship%20and%20Immigration ''Canada (Minister of Citizenship and Immigration) v Vavilov'], 2019 SCC 65 revised the rules for determining the standard of review. Generally, for all decisions, the presumed standard of review will now be '''reasonableness''', unless legislative intent or the rule of law may require a different standard of review. The court stated:


''"The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies."''
''"The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies."''
Line 115: Line 115:
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. 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 ''Vavilov'' case is now the leading authority on how courts should apply the reasonableness review, and the principles to follow when determining if a decision is unreasonable.  
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. 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 ''Vavilov'' case is now the leading authority on how courts should apply the reasonableness review, and the principles to follow when determining if a decision is unreasonable.  


As of May 2021, a recent BCCA decision [https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca152/2021bcca152.html?resultIndex=1 ''Red Chris Development Co v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1-1937, 2021 BCCA 152''] on April 15, 2021 noted that the standard of patent unreasonableness applies to tribunals governed by the ''Administrative Tribunals Act'' despite common law developments post-''Vavilov''.  
As of May 2021, a recent BCCA decision [https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca152/2021bcca152.html?resultIndex=1 ''Red Chris Development Co v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1-1937''], 2021 BCCA 152' on April 15, 2021 noted that the standard of patent unreasonableness applies to tribunals governed by the ''Administrative Tribunals Act'' despite common law developments post-''Vavilov''.  


In [https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca147/2022bcca147.html?autocompleteStr=Beach%20Place%20Ventures%20Ltd.%20v.%20Employment%20Standards%20Tribunal%2C%202022%20BCCA%20147&autocompletePos=1 ''Beach Place Ventures Ltd. v. Employment Standards Tribunal, 2022 BCCA 147''] (CanLII), at para 16 Justice Voith states that “the statutory standard of patent unreasonableness set out in s. 58 of the ''ATA'' is unaffected by the common law standard of reasonableness articulated in  ''Canada (Minister of Citizenship and Immigration) v. Vavilov'', 2019 SCC 65.”  
In [https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca147/2022bcca147.html?autocompleteStr=Beach%20Place%20Ventures%20Ltd.%20v.%20Employment%20Standards%20Tribunal%2C%202022%20BCCA%20147&autocompletePos=1 ''Beach Place Ventures Ltd. v. Employment Standards Tribunal''] (CanLII) 2022 BCCA 147, at para 16 Justice Voith states that “the statutory standard of patent unreasonableness set out in s. 58 of the ''ATA'' is unaffected by the common law standard of reasonableness articulated in  ''Canada (Minister of Citizenship and Immigration) v. Vavilov'', 2019 SCC 65.”  


In [https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca10/2022bcca10.html?resultIndex=1 ''College of Physicians and Surgeons of British Columbia v. The Health Professions Review Board'', 2022 BCCA 10], the British Columbia Court of Appeal (BCCA) explained how courts should review administrative tribunal decisions subject to statutory standards of review. Citing [https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca152/2021bcca152.html?autocompleteStr=Red%20Chris%20Development%20Company%20Ltd.%20v.%20United%20Steelworkers%2C%20Local%201-1937%2C%202021%20BCCA%20152&autocompletePos=1 ''Red Chris Development Company Ltd. v. United Steelworkers, Local 1-1937, 2021 BCCA 152''], the court affirmed that a court may only interfere with a Board’s decision when the court is satisfied said decision is patently unreasonable. That standard applies regardless of common law developments regarding standards of review.   
In [https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca10/2022bcca10.html?resultIndex=1 ''College of Physicians and Surgeons of British Columbia v. The Health Professions Review Board''], 2022 BCCA 10, the British Columbia Court of Appeal (BCCA) explained how courts should review administrative tribunal decisions subject to statutory standards of review. Citing [https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca152/2021bcca152.html?autocompleteStr=Red%20Chris%20Development%20Company%20Ltd.%20v.%20United%20Steelworkers%2C%20Local%201-1937%2C%202021%20BCCA%20152&autocompletePos=1 ''Red Chris Development Company Ltd. v. United Steelworkers, Local 1-1937''] 2021 BCCA 152, the court affirmed that a court may only interfere with a Board’s decision when the court is satisfied said decision is patently unreasonable. That standard applies regardless of common law developments regarding standards of review.   


The BCCA goes on to say that even post ''Vavilov'', the statutory patent unreasonable standard in BC’s Administrative Tribunals Act is still considered to be the most deferential standard of review in Canadian Law. The BCCA further clarifies that the court has not engaged in any judicial reinterpretation of the patent unreasonable standard. the standard of patent unreasonableness applies to tribunals governed by the ''Administrative Tribunals Act'' despite common law developments post-''Vavilov''.  
The BCCA goes on to say that even post ''Vavilov'', the statutory patent unreasonable standard in BC’s Administrative Tribunals Act is still considered to be the most deferential standard of review in Canadian Law. The BCCA further clarifies that the court has not engaged in any judicial reinterpretation of the patent unreasonable standard. the standard of patent unreasonableness applies to tribunals governed by the ''Administrative Tribunals Act'' despite common law developments post-''Vavilov''.  


However, in tribunals that are not governed by the ''Administrative Tribunals Act'', recent BCCA decisions have affirmed that the reasonableness standard from Vavilov will apply For example, [https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca176/2021bcca176.html?autocompleteStr=1193652%20BC%20Ltd%20v%20New%20Westminster%20(City)%2C%202021%20BCCA%20176&autocompletePos=1 ''1193652 BC Ltd v New Westminster (City), 2021 BCCA 176''] on April 30, 2021 followed the ''Vavilov'' decision. In para 59, the court concluded that it should apply a reasonableness standard of review when reviewing the decision of a Chambers judge.
However, in tribunals that are not governed by the ''Administrative Tribunals Act'', recent BCCA decisions have affirmed that the reasonableness standard from Vavilov will apply For example, [https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca176/2021bcca176.html?autocompleteStr=1193652%20BC%20Ltd%20v%20New%20Westminster%20(City)%2C%202021%20BCCA%20176&autocompletePos=1 ''1193652 BC Ltd v New Westminster (City)''] 2021 BCCA 176 on April 30, 2021 followed the ''Vavilov'' decision. In para 59, the court concluded that it should apply a reasonableness standard of review when reviewing the decision of a Chambers judge.


The BCCA decision in [https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca428/2021bcca428.html?autocompleteStr=lululemon%20athletica%20canada%20inc.%20v.%20Industrial%20Color%20Productions%20Inc.%2C%202021%20BCCA%20428&autocompletePos=1 ''lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCCA 428''] on November 12th, 2021 held that despite ''Vavilov'', [https://www.canlii.org/en/on/onca/doc/2011/2011onca622/2011onca622.html ''Mexico v. Cargill, Incorporated, 2011 ONCA 622'']  remains the leading case on issues of standard of review for commercial arbitration.  Justice Marchand elaborates on the applicability of ''Vavilov'' in this case, stating that it is not helpful as it concerns the applicable standard of review as it applies in administrative law and not commercial arbitration. The BCCA held that ''Cargill'' is not undermined by the ''Vavilov'' in this context, and that the appropriate standard of review in this case is correctness.   
The BCCA decision in [https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca428/2021bcca428.html?autocompleteStr=lululemon%20athletica%20canada%20inc.%20v.%20Industrial%20Color%20Productions%20Inc.%2C%202021%20BCCA%20428&autocompletePos=1 ''lululemon athletica canada inc. v. Industrial Color Productions Inc.''] 2021 BCCA 428 on November 12th, 2021 held that despite ''Vavilov'', [https://www.canlii.org/en/on/onca/doc/2011/2011onca622/2011onca622.html ''Mexico v. Cargill, Incorporated''] 2011 ONCA 622 remains the leading case on issues of standard of review for commercial arbitration.  Justice Marchand elaborates on the applicability of ''Vavilov'' in this case, stating that it is not helpful as it concerns the applicable standard of review as it applies in administrative law and not commercial arbitration. The BCCA held that ''Cargill'' is not undermined by the ''Vavilov'' in this context, and that the appropriate standard of review in this case is correctness.   


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 varies, and is dependent upon the tribunal, area of law and issues involved seems to depend on the tribunal and issues involved.
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 varies, and is dependent upon the tribunal, area of law and issues involved seems to depend on the tribunal and issues involved.
LSLAP
5,109

edits

Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Special:MobileDiff/52870"