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====== (b) Errors of Law ====== | ====== (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 | 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. | |||
====== (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), [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 | |||
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