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Difference between revisions of "Introduction to Public Complaints (5:I)"
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Introduction to Public Complaints (5:I) (view source)
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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. | 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 maydeclare 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. | |||
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