A lot of us at some pointing time in our lives have to deal with decisions made by various government bodies or tribunals. For convenience only, I will refer to these collectively as administrative bodies. We run into them in all walks of life and this is especially so if you are in a business that is subject to some regulatory body. These decisions potentially have a huge impact on our lives and/or businesses. This area of the law is referred to as ”administrative law”.
All administrative bodies derive their power or “jurisdiction” from an enabling statute. For example, the Workers Compensation Act, or perhaps a regulatory body such as the Liquor Control and Licencing Branch which derives their power from the Liquor Control and Licencing Act. There are no powers or jurisdiction beyond that provided to the administrative body in the statute.
Apart from the basic powers granted, these statutes usually contain various processes for the consideration of applications for all sorts of things including licences, or approvals, or perhaps even enforcement matters and other forms of regulation. These processes may include the right to a hearing and with that the right to legal representation. Not all processes include the right to a hearing but generally where someone’s rights or entitlements are potentially affected there should be language in the statute to provide the right to a hearing or at the least the right to make submissions and provide documentation to support your position.
Often legal counsel get involved in the hearing/ submission stage to ensure that all evidence and/or submissions are properly presented to the tribunal. The success of any appeals or subsequent reviews of the decision may depend on what was tendered in evidence or argued at the original hearing level.
There is often a review or appeal process built into the statute. However when that process is exhausted, the statute may state that their decision is final.
So what do you do when you are at the end of the road with the administrative body and you have an unfavourable decision? The answer is a process known as “judicial review”. Pursuant to the Judicial Review Procedure Act you can petition to the Supreme Court of British Columbia and ask the court to review the decision. You must first determine whether the tribunal is subject to the Administrative Tribunals Act (ATA). Not all tribunals are. The type or extent of judicial review is dependant on whether the ATA applies or not. If it does, the extent of review by the Court is determined by the provisions set out in the ATA. If the tribunal is not subject to the ATA then the judicial review will proceed on the basis of the “common law”.
The courts are not there to review the same evidence that was before the administrative body and then come to a different decision. To that extent it is often said that the tribunal has the right to be wrong. However the administrative body must always act fairly in their dealings with the applicant.
So, the courts are not there as a standard form of appeal but rather should be viewed as a safeguard against significant miscarriages of justice in this area of law. Some examples of where courts might intervene include; where a tribunal has made an error of law in the interpretation of their authority, have displayed bias, have based their decision on irrelevant considerations, have failed to properly take into account all relevant considerations, have failed to follow the processes set out in the statute (e.g. hearings etc.), or have rendered a decision that cannot be reasonably based on any of the evidence before them.
Where the Court decides to intervene they have the power to set aside the decision and/or send the matter back for reconsideration, with directions. However, the Court does not have the power to render their own decision in place of the administrative body as the governing statute reserves that right to the administrative body itself.
Judicial review is based only on the material that was before the administrative body together with legal counselâ€™s submissions. The review is conducted by affidavit which sets out all the material that was before the administrative body. It is a far more expeditious process than other court proceedings that require many days of court time to call evidence. Be careful, if the ATA applies there are limitation periods of 60 days from the date of the decision to bring your petition to court.
Looking back from this vantage point it is now easy to see that it is critical that you ensure a complete presentation of your evidence and relevant submissions when initially before the administrative body. Oh, and good luck.