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

== B. Privacy or Access to Information ==

== C. Complaints about Police Conduct ==

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

== B. 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.   

== C. 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 actually 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 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.

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 individuals.  

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.

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 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''.  

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>.

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.

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):  

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.

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.

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.  

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.  

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.

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.

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.  

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.  

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.