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Difference between revisions of "Review of Administrative Decisions for Public Complaints (5:III)"
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Review of Administrative Decisions for Public Complaints (5:III) (view source)
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== Step Two: Formal Review == | == 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 | 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 | 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: 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. | ||
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== Step Three: Examining an Appeal == | == 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 | 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 === | === 1. Judicial Review === | ||
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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. | 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 | 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''. There is a '''30-day''' limitation period for | The procedures for a federal judicial review are set out in s 18.1 of the ''Federal Courts Act''. There is a '''30-day''' limitation period for applications to the Federal Court, which can be extended under s 18.1(2). | ||
===== (2) Provincial Superior Courts ===== | ===== (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 | 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 PolicyActs, Rules & Forms section of the [www.courts.gov.bc.ca/supreme_court BC Supreme Court website]. | ||
Tribunals that can be reviewed under the ''JRPA'' include the Employment and Assistance Appeal Tribunal, the Workers’ Compensation Board, and | Tribunals that can be reviewed under the ''JRPA'' include the Employment and Assistance Appeal Tribunal, the Workers’ Compensation Board, and the Residential Tenancy Branch. | ||
===== (3) Standing ===== | ===== (3) Standing ===== | ||
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===== (4) Time Limits ===== | ===== (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 | 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. | 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. | ||
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===== (5) Stay of Orders or Proceedings ===== | ===== (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. | 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: < | David Mossop, Kendra Milne & Jess Hadley, Representing Yourself in a Judicial Review, 2d ed (Vancouver: Community Legal Assistance Society, 2010), online: <https://judicialreviewbc.ca/>. | ||
===== (6) Evidence ===== | ===== (6) Evidence ===== | ||
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===== (7) Filing Fees and Indigency Applications ===== | ===== (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 | 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: < | 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 ==== | ==== c) Scope of Judicial Review ==== | ||
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===== (1) Substantive Errors ===== | ===== (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 | 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 ====== | ====== (a) Errors of Fact ====== | ||
Findings of fact are generally reviewable only if they are not supported on the evidence. | 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 ====== | ====== (b) Errors of Law ====== | ||
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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. | 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 | 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 ====== | ====== (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 | 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'''. | 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'''. | ||
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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). | 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 | 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 | “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.” | 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.” | ||
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The Act has the following main features: | 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 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 | *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 | *The Ombudsperson does '''not''' have jurisdiction to investigate complaints in areas where the parties are private actors or where other specialised 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 Ombudsperson has broad powers of inquiry and may make recommendations, but has no power to enforce those recommendations. | ||
*The | *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. | *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, | Contact the current Ombudsperson, Jay Chalke, at: | ||
'''The Ombudsperson''' | '''The Ombudsperson''' | ||
