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

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 to pursue a resolution through the formal review process.

'''NOTE: Procedural fairness in internal review processes: as a general rule''', administrative tribunals are limited in the scope of their internal review processes to the specific grounds of review listed in their enabling legislation. This raises the question of whether an applicant is able to challenge an administrative tribunal’s decision on procedural fairness grounds if the enabling legislation for the tribunal does not explicitly include procedural fairness as one of the grounds for internal review. This question was recently addressed by the BC Supreme Court in ''Stelmack v Amaruso'' (14 July 2017), Vancouver S175091 (BCSC). The case involved a judicial review of an internal review by the Residential Tenancy Branch (RTB) which had failed to address a procedural fairness violation from the initial hearing because procedural fairness was not one of the three listed grounds for internal review in section 79(2) of the ''Residential Tenancy Act''. The BC Supreme Court ruled that even if the enabling legislation does not list procedural fairness as a specific ground for internal review, arbitrators nonetheless must always consider issues of procedural fairness. The practical ramifications of this decision are currently unclear, but it opens the door to making procedural fairness arguments during all internal review processes in addition to the grounds listed in the tribunal’s enabling legislation.  

If launching an internal review fails to solve an issue, an individual 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, individuals will be looking to resort to the courts through a judicial review, which will render a binding decision on a case.  The Ombudsperson is generally to be contacted only where an individual 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.

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 have 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 ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc9/2008scc9.html Dunsmuir v New Brunswick]'', 2008 SCC 9.  Bastarache and Lebel JJ for the majority provide the following description at paragraphs 27-28:

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 many individuals.  

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 18.1(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'' [''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.

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.

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.  

In British Columbia, the Administrative Tribunals Act sets a different standard of review, patently unreasonable, for Tribunals that are seen as “expert tribunals”. The largest of these tribunals being the Residential Tenancy Branch and the Worker’s Compensation Appeal Tribunal. In practice, there is often little difference between the patently unreasonable standard and a review on the reasonableness standard, as the Supreme Court of Canada noted in Dunsmuir that it would be illogical and potentially raise rule of law concerns to allow an irrational decision to stand because its irrationality was not “clear” or “obvious” enough.  

There is already conflict in the British Columbia courts on whether or not the ''Vavilov'' decision effectively merges these two standards, and it is likely to be addressed by the BC Court of Appeal in the near future, so a search for the most recent case on the standard of review in British Columbia is strongly recommended.

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.  

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.  

Generally, the tribunal’s procedural decisions will be assessed on a standard of '''fairness'''. The court will show deference to the administrative body’s discretionary choice of procedures, provided that the selection is fair in the circumstances. See e.g. ''Baker'', above.  

====== e) Remedies of Judicial Review ======