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

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 his or her authority, the court can step in to provide a remedy.

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'' (non-binding) comments in ''Canada (Citizenship and Immigration) v Khosa'', 2009 SCC 12 [''Khosa'']:

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.”

 

Most recently, the BC Supreme Court in ''Wan v The National Dental Examining Board of Canada'', 2019 BCSC 32 applied the standard of reasonableness by referring to ''Dunsmuir'' factors while using the words “patently unreasonable” to summarize the history of the case. This finding suggests that since ''Khosa'', courts will adhere to the high standard of reasonableness and give no significance to the word “patently”.