Steps to Take regarding Public Complaints (5:III)
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.
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 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 the court or tribunal's 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, Human Rights).
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.
NOTE: Exhausting internal appeals before judicial review. There is a general rule in administrative law which requires that, where tribunals or other administrative decision-makers (such as public universities) have an internal review or appeals process, applicants must exhaust these internal processes before applying for judicial review by the courts (see Harelkin v University of Regina,  2 SCR 561).
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. See Section III.C.1.c(2): Procedural Fairness of this chapter below for more on procedural fairness.
Step Three: Examining an Appeal
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.
1. Judicial Review
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 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 many individuals.
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.
(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 Acts, Rules & Forms section of the BC Supreme Court website: www.courts.gov.bc.ca/supreme_court.
Tribunals that can be reviewed under the JRPA include the Employment and Assistance Appeal Tribunal, the Workers’ Compensation Board, and the Residential Tenancy Branch.
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.
David Mossop, Kendra Milne & Jess Hadley, Representing Yourself in a Judicial Review, 2d ed (Vancouver: Community Legal Assistance Society, 2010), online: <https://judicialreviewbc.ca/>.
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. However, there is a narrow exception to this: a party may submit new evidence speaks to the procedural fairness or jurisdictional issue [Davies v Halligan, 2013 BCSC 2549].
(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.
David Mossop, Kendra Milne & Jess Hadley, Representing Yourself in a Judicial Review, 2d ed (Vancouver: Community Legal Assistance Society, 2010), online: <https://judicialreviewbc.ca/>.
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 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.
(a) Errors of Fact
Findings of fact are generally reviewable only if they are not supported on the evidence. The appellant courts grant just as much deference to a tribunal’s findings of facts as they would to a trial court’s finding of facts in a judicial review. 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 which creates 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),  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”.
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; however, procedures must be consistently followed. Where a tribunal informs an individual that a certain procedure will be followed, it will generally be considered unfair to follow a different procedure.
No one has the right to an adjournment. Tribunals generally hold their hearings within reasonable time even when their statutes have no limitation period. Nonetheless, tribunals may grant an adjournment when necessary. In deciding whether to allow an adjournment, tribunals should consider the amount of notice, the gravity of the consequences of the hearing, the degree of disclosure, and the availability of counsel.
(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 solely 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 (more than 50% likely). 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.
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. For instance, the Ombudsperson may not re-evaluate the merit of the adjudicator’s decision just because either the tenant or landlord is not happy with the decision. However, the Ombudsperson has jurisdiction to investigate the administrative unfairness of the Residential Tenancy Branch.
- 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, Jay Chalke, at:
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