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Introduction to Public Complaints (5:I) (view source)

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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.  
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
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'' 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 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.”
 
==== d) Procedural Areas of Law ====
 
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. 
 
Fundamental procedural rights include the right to know the case that must be met and to respond, and the right to an impartial decision-maker. In some cases, procedural fairness requirements might also include the right to advanced notice, the right to an oral hearing, the right to be represented by counsel, or the right to formal written reasons. In all cases, the prejudice to the accused from denying a procedural norm must be balanced against the need to make administrative decisions efficiently.
 
===== (1) Standard of Review =====
 
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.
 
For provincial tribunals to which the ''ATA'' applies, the Act provides: “questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted '''fairly'''” (ss 58(2)(b) and 59(5)).
 
===== (2) Duty to Act Fairly =====
 
Tribunals have a common-law duty to act fairly. At its most basic level, the doctrine of fairness requires that a party be given the  opportunity to respond to the case against him or her. The circumstances determine whether this response is a written objection or a full oral hearing. As a corollary to the right to present one’s case, the legal maxim that only the people who hear the case may decide on it applies to tribunals. The tribunal must meet quorum but need not be unanimous.
 
The extent of disclosure depends on what is fair to all parties involved and whether the information at issue is prejudicial to an individual’s interests (i.e., failure to disclose inconsequential information may not be fatal). At the very least, a party must know which incidents and allegations will be at issue when the decision is made.
 
The courts will allow tribunals considerable latitude in establishing procedures (while keeping in mind what is fair). However, a tribunal is required to be procedurally consistent. Where a tribunal informs an individual that a certain procedure will be followed, it will normally be considered unfair to follow a different procedure.
 
Although many statutes have limitation periods, even where there is no limitation period, any delay in holding a hearing must be within reasonable limits. No one has the right to an adjournment; however, tribunals should consider the amount of notice, the gravity of the  consequences of the hearing, the degree of disclosure, and the availability of counsel when deciding whether to allow an adjournment.
 
===== (3) Right to Be Heard =====
 
If there is a hearing, a party is entitled to be present while evidence or submissions are presented. The right to be present at a hearing normally includes a party’s right to appear with counsel and his or her right to an interpreter, though normally a tribunal is not required to pay for these services. The tribunal has discretion as to whether the hearing is public or private (although there is a presumption in favour of public hearings). At any hearing, the tribunal must gather and weigh evidence. Relevance is the primary consideration when determining    admissibility. Not all administrative decisions involve an oral hearing. A tribunal may have the power to make certain decisions on the basis of written submissions.  
 
===== (4) Onus of Proof =====
 
The onus of proof is normally to a civil standard, i.e., that the events alleged occurred on a balance of probabilities. However, disciplinary hearings may be to a mixed standard requiring proof beyond a reasonable doubt for some elements.  
 
===== (5) Duty to Act in Good Faith =====
 
All decision-makers are expected to act in good faith and not to discriminate on the basis of irrelevant criteria. Parties are entitled to a decision made by persons untainted by the appearance of bias or conflicts of interest. A tribunal has a duty to at least consider exercising  any discretion it may have.
 
==== e) Remedies of Judicial Review ====
 
Several remedies are available through judicial review:
*a) an order in the nature of ''mandamus'' that requires a tribunal to exercise certain powers;
*b) an order in the nature of ''prohibition'' that prohibits a tribunal from exercising unlawful authority; 
*c) an order in the nature of ''certiorari'' that quashes a tribunal decision;
*d) where there is an exercise, refusal to exercise, or a proposed or purported exercise of a statutory power, an injunction or declaration from the court; or
*e) a court-issued declaration to clarify the law.
 
A party may also challenge a tribunal decision via a civil action for a declaration or injunction. For non-statutory tribunals, this is the only method of challenge. This is also the only method of challenge wherein the court may grant damages.
 
=== 2. Ombudsperson ===
 
The procedures created by the ''BC Ombudsperson Act'', RSBC 1996, c 340, furnish an inexpensive means for reviewing decisions and practices of '''provincial''' government bodies. At present, there is no federal equivalent of the provincial Ombudsperson. However, as discussed later in the chapter, there are sectional equivalents in such fields as police enforcement and official languages.             
 
The Act has the following main features:
*The Ombudsperson is empowered to investigate complaints against public sector bodies including provincial ministries and provincially appointed boards, commissions, Crown corporations, and other public institutions where the majority of the board is appointed by the provincial government or is responsible to the government.
*The Schedule to the ''Ombudsperson Act'' also empowers the Ombudsperson to investigate complaints against such entities as provincial  corporations, municipalities and regional districts, universities and colleges, hospitals, and governing bodies of professional or occupational associations established by a provincial Act.
*The Ombudsperson does '''not''' have jurisdiction to investigate complaints in areas where the parties are private actors or where other  specialized complaint procedures have been established. Examples include complaints regarding banks, private life and health insurance,    consumer inquiries, doctors, employment issues involving private companies, federal programs, landlord and tenant (residential) inquiries,  municipal police, and the RCMP.
*The Ombudsperson has broad powers of inquiry and may make recommendations, but has no power to enforce those recommendations.
*The  complainant must exhaust review or appeal procedures within the agency against which the complaint was made before turning to the Ombudsperson.
*The Ombudsperson tables an annual report in the Legislature and may publicly disclose any findings if an agency is not complying with his or her recommendations.               
 
Contact the current Ombudsperson, Kim Carter, at:
 


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