Difference between revisions of "Introduction to Public Complaints (5:I)"

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(24 intermediate revisions by 5 users not shown)
Line 1: Line 1:
{{REVIEWED LSLAP | date= July 8, 2023}}
{{LSLAP Manual TOC|expanded = complaints}}
{{LSLAP Manual TOC|expanded = complaints}}


== A. Introduction ==
= Introduction =


This chapter does not address all problems, legal or otherwise, relating to government, but it provides some general information that may assist your client. This section contains general guidelines for dealing with public bodies (e.g., the Canadian Radio-television and Telecommunications Commission, the Egg Marketing Board, or a public university). Individuals involved in the judicial review process should consult the following texts:  
This chapter provides some general information that may assist in making a public application or complaint, but does not address all problems, legal or otherwise, relating to government. This chapter contains general guidelines for dealing with public bodies (e.g., the Canadian Radio-television and Telecommunications Commission, the Egg Marketing Board, or a public university). Individuals involved in the judicial review process should consult the following texts:


David J Mullan, ''Administrative Law'', (Toronto: Irwin Law, 2001).  
David J Mullan, ''Administrative Law'', (Toronto: Irwin Law, 2001).  
*Part of the Essentials of Canadian Law series by Irwin Law, this text provides a comprehensive review of administrative law in Canada.  
*Part of the Essentials of Canadian Law series by Irwin Law, this text provides a comprehensive review of administrative law in Canada.  


Sara Blake, ''Administrative Law in Canada'', 5th ed (Toronto: LexisNexis, 2011).
Sara Blake, ''Administrative Law in Canada'', 6th ed (Toronto: LexisNexis, 2017).
*This text provides a simple and clear review of administrative law.  
*This text provides a simple and clear review of administrative law.  


Line 14: Line 15:
*This regularly updated three-volume text provides a more detailed review of administrative law.  
*This regularly updated three-volume text provides a more detailed review of administrative law.  


== B. Governing Legislation and Resources ==
{{LSLAP Manual Navbox|type=chapters1-7}}
 
=== 1. Legislation ===
 
''Federal Courts Act'', RSC 1985, c F-7.
 
''Judicial Review Procedure Act'', RSBC 1996, c 241.
 
=== 2. Resources ===
 
David Mossop, Kendra Milne & Jess Hadley, ''Representing Yourself in a Judicial Review'', 2d ed (Vancouver: Community Legal Assistance Society, 2010), online: <clasbc.net/publications>.
 
The Ombudsperson of BC website: http://www.ombudsman.bc.ca.
 
== C. Step One: Informal Review ==
 
Disputes with government agencies can often be resolved through informal communication. Agencies often make initial decisions based on misperceptions, without all relevant information. Sometimes the most difficult part of an advocate’s job is to locate the person making the decision or someone in a position to  review the decision. Before pursuing more drastic (and often expensive) avenues, try to locate this person and ensure that they have been provided with all relevant information.
 
== D. Step Two: Formal Review ==
 
Most government agencies have some sort of formal review process. For some agencies there is 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 or not to pursue a resolution through the formal review process.
 
Generally, powers of review and review procedures are set out in the statutes and regulations that govern a particular tribunal or court.  Agencies themselves further clarify this process. Many publish handbooks for internal use that are available to the general public on their websites or in law libraries. Lawyers with experience in the area may also provide valuable insight. Lawyers at the Community Legal Assistance Society can be helpful when dealing with specific problems, especially those dealing with poverty law topics (EI, WCB, Income Assistance).
 
'''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. 
 
== E. Step Three: Examining an Appeal ==
 
If launching an internal review fails to solve a client’s issue, they can either apply for judicial review or contact the BC Ombudsperson.  Both of these options can be pursued at the same time, but one option may be preferable to the other in certain circumstances. Generally  speaking, clients will be looking to resort to the courts through a judicial review, which will actually render a binding decision on a case. The Ombudsperson is generally to be contacted only where the client does not have a legal cause of action, but still wants to change a part of  a government body’s structure that leads to unfairness.
 
=== 1. Judicial Review ===
 
If a client receives an unfavourable decision from an agency’s appeal process, or objects to the appeal process itself, the client may have recourse to the courts. Sometimes regulations give an individual a right to appeal directly to the courts. If so, the client should use this direct right to appeal rather than the general judicial review procedure. However, even if the client 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.
 
The courts have developed criteria against which to assess the adequacy of government agencies’ decision-making procedures. These criteria form the heart of administrative law. It is not within the scope of this section to attempt a comprehensive overview of the basic principles of administrative law. Interested parties can find an excellent introduction to these fundamental principles in ''Dunsmuir v New Brunswick'', 2008 SCC 9. Bastarache and Lebel JJ for the majority provide the following description at paragraphs 27-28:
 
As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law... By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.
 
Remember that judicial review should not be contemplated unless all aforementioned avenues have been exhausted.
 
==== a) BC Judicial Review Procedure Act ====
 
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 clients. 
 
==== b) Judicial Review Procedure ====
 
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.
 
===== (1) Federal Court =====
 
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 Federal Court Trial Division hears  reviews of most federal tribunals. However, the 16 tribunals listed in section 28 of the ''Federal Courts Act'' are reviewed by the Federal  Court of Appeal. Examples of federal tribunals that are reviewed by the Federal Court of Appeal include the Canada Industrial Relations Board,  Employment Insurance umpires, the Competition Tribunal, and the CRTC.
 
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).
 
===== (2) Provincial Superior Courts =====
 
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 Practice, Procedure & Policy section of the [http://www.courts.gov.bc.ca/supreme_court BC Supreme Court website].
 
Tribunals that can be reviewed under the ''JRPA'' include the Employment and Assistance Appeal Tribunal, the Workers’ Compensation Board, and  the Residential Tenancy Branch.
 
===== (3) Standing =====
 
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.
 
===== (4) Time Limits =====
 
The time limit to apply to the Federal Court for judicial review under section 18.1 of the ''Federal Courts Act'' is '''30 days''', although it can  be extended by the Federal Court (s 18.2(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'' [''ATA''], SBC 2004, c 45, and the specific statute  governing the tribunal; '''60 days''' 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.
 
===== (5) Stay of Orders or Proceedings =====
 
While an application for judicial review is pending, existing orders from a tribunal must be obeyed, and the tribunal has 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. For an accessible explanation of how to do this, refer to this booklet (at Appendix sections C-E):
 
David Mossop, Kendra Milne & Jess Hadley, ''Representing Yourself in a Judicial Review'', 2d ed (Vancouver: Community Legal Assistance Society,  2010), online: <clasbc.net/publications>.
 
===== (6) Evidence =====
 
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.
 
===== (7) Filing Fees and Indigency Applications =====
 
Applicants who cannot afford the filing fees for judicial review may apply for an indigency order pursuant to Rule 20-5 in Appendix C, Schedule 1 of the BC Supreme Court Civil Rules. 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. For more exhaustive details on the process, please refer to this booklet (at sections 4(E) and 5):
 
David Mossop, Kendra Milne & Jess Hadley, ''Representing Yourself in a Judicial Review'', 2d ed (Vancouver: Community Legal Assistance Society,  2010), online: <clasbc.net/publications>. 
 
==== c) Scope of Judicial Review ====
 
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.
 
===== (1) Substantive Errors =====
 
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 it can be applied. If an administrative decision-maker exceeds his or her authority, the court can step in to provide a remedy.
 
====== (a) Errors of Fact ======
 
Findings of fact are generally reviewable only if they are not supported on the evidence. The deference granted by the court to a tribunal’s  findings of fact in judicial review is akin to the deference an appeal court shows to a trial court’s findings of fact. Nevertheless, the  legislature is presumed not to have intended to give an administrative body the authority to act arbitrarily or capriciously. If the tribunal makes a finding of fact that cannot reasonably be drawn from the evidence, then it is exceeding the authority granted to it, and its decision can be set aside by the court.
 
====== (b) Errors of Law ======
 
Substantive law reviewable by the courts can be divided into two areas: statutory interpretation related to the powers of a tribunal, and interpretation related to other broader questions of law.
 
A tribunal can be overruled if it is acting without authority. A tribunal must generally act within the jurisdiction of the legislation that created it. Similarly, a tribunal must not misinterpret the rules that govern the way it exercises authority, since these rules represent a precondition to the exercise of that authority. The mandate of a tribunal is defined in large part by the intention of the legislature. If in the course of exercising its authority a tribunal misinterprets its mandate, a court may declare the tribunal’s decision void upon judicial review.
 
Similarly, a tribunal can be overruled if it applies the law incorrectly in other contexts. The enabling statute creating a given tribunal  cannot grant it the authority to act illegally or to change the law.
 
====== (c) Standards of Review ======
 
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 Charterviolations). 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  calibratedaccording  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
 
next p5-6

Latest revision as of 18:09, 22 August 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 8, 2023.



Introduction

This chapter provides some general information that may assist in making a public application or complaint, but does not address all problems, legal or otherwise, relating to government. This chapter contains general guidelines for dealing with public bodies (e.g., the Canadian Radio-television and Telecommunications Commission, the Egg Marketing Board, or a public university). Individuals involved in the judicial review process should consult the following texts:

David J Mullan, Administrative Law, (Toronto: Irwin Law, 2001).

  • Part of the Essentials of Canadian Law series by Irwin Law, this text provides a comprehensive review of administrative law in Canada.

Sara Blake, Administrative Law in Canada, 6th ed (Toronto: LexisNexis, 2017).

  • This text provides a simple and clear review of administrative law.

Donald Brown & John M Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback Publishing, 1998).

  • This regularly updated three-volume text provides a more detailed review of administrative law.
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.