Chapter 16 challenging_decisions_week_12

BCTA 308:Administrative Law

Chapters 16, Administrative Law, Principles & AdvocacyWeek #12 – Challenging Decisions of a Tribunal

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•Agency outside its jurisdiction•The agency failed to take action it was required to

take•The agency improperly delegated a decision•The agency applied discretion improperly, not

considering all its options•The agency misinterpreted and misapplied the

law•The agency acted in bad faith, procedural issues•Procedural fairness, opportunity to be heard

When would you challenge a decision:

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• Internal review and appeals •Privitave clauses, defence on appeals statutory

right of appeal•Staying a decision or order, test for granting a stay•When is a Tribunal functus? •Reconsideration by a Tribunal• Judicial Review or appeals, Divisional Court•Deference based on the expertise of the agency•Review by the Ontario Ombudsman

Number of ways to challenge a decision:

Internal Review - Reconsideration

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Internal Review – Reconsideration

•Most agencies have Rules that empower them to correct their own errors.

• Internal review is cheaper and faster•The review will be done by a different decision

maker•These reviews often result in a re-opening of the

hearing•Often courts won’t grant statutory right of appeal

until internal review has been attemped

Internal Agency Review or Reconsideration :

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Rules for Internal Review / Reconsideration

•You will find the process in the agencies Rules of Practice

•There is always a time limit, for filing usually 30 days• In extraordinary circumstance time limit can be

extended•These reviews often result in a re-opening of the

hearing•Often courts won’t grant statutory right of appeal until

internal review has been attempted


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Staying of a Decision

•Most often the person asking for the internal review will ask that the original decision be “stayed”

•Usually the stay will be granted pending the outcome of the internal review, otherwise review might be meaningless

•Usually the request for review or reconsideration must be accompanied by a request to stay the decision

•An appeal to a court generally stays a decision, see SPPA


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Test for Granting a Staying of a Decision

A tribunal will usually “suspend” the effect of their decision if appropriate. The test for granting a “stay” is:

•There appears to be a serious issue to be determined

•The party seeking the stay will be harmed if not granted, for instance, a building will be demolished, a tenant will be evicted if the stay is not granted

•The balance of convenience favours a stay


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Tribunal reviews decision on onw initiative

•Most tribunals have the power to initiate their own review, most often called “reconsideration”, if they believe it is appropriate

•The SPPA authorizes a tribunal to review their decision if they consider it “advisable”

•This right to reconsider over-rides the common law rule of “functus officio”, which normally results in a tribunal having no further role in a decision once it is made


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Tribunal reviews often a 2 stage process

•Most tribunals have a two stage approach to internal review

•A party requests a review, which is evaluated against certain criteria. If it appears there may have been a serious error, it is sent to a review hearing

•At the review hearing, the adjudicator determines if there was a serious error, and if there was a serious error, the review will be granted and the matter will be re-heard


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Tribunal reviews often a 2 stage process

•An adjudicator granting a review does not have to grant a review of the entire decision, sometimes only certain issues need to be re-heard

•After hearing a review, the board member can affirm, quash, or vary the original order

• It is important that agencies have broader right to review their own decisions than the courts on appeal, so that errors can be fixed quickly and easily


Statutory Right of Appeal

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APPEALS

•Many statutes provide a party to an application the right to file an appeal of a decision with which they disagree. Who can file the appeal will be clear from the statute.

•The appeal will be to a higher court, a part of the Superior Court of Justice, normally a branch called Divisional Court

•The extent to which a party has a right to file the appeal will be based on the enabling statute’s privative clause

Statutory Right of Appeal:

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An Appeal is:•not a new trial. The evidence is usually the evidence that

was tendered in the original trial

•not automatic. Usually only a tribunal’s final decision can be appealed

•urgent. The notice of appeal must be filed quickly, usually within 30 days of the date of the original decision

• the last resort. Often the court will require that any rights to internal review be exhausted before the appeal can be heard

What is a Statutory Appeal:

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In administrative law, a privative clause is a provision in a statute that tries to remove a court’s ability to review decisions of a tribunal (or other administrative agency).

Historically, courts have shown resistance to such privative clauses. In Canada, courts have held that there are certain constitutional restrictions on the ability of legislatures to insulate administrative tribunal from judicial review by means of privative clauses. In Canada. if there is a privative clause, there will be more deference given to the administrative tribunal than otherwise.

What is a Privative Clause – Curial Deference:

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An Example of a Privative Clause:

Assessment ActR.S.O. 1990, CHAPTER A.31

Appeal43.1 (1) An appeal lies from the Assessment Review Board to the Divisional Court, with leave of the Divisional Court, on a question of law. 1997, c. 5, s. 28.


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Curial Defence:

Is the recognition that general courts ought to defer to the rulings of specialized tribunals save exceptional circumstances.

Recognizing that the legislature has created specialized tribunals to deal with disputes in limited and specialized areas, the general courts of common law jurisdictions are loath to interfere and hear outright appeals of those tribunals. The superior courts don't want the work, were not there when witness credibility was established, and they've not the specialized knowledge. Therefore, the principle of curial deference; to defer to the rulings of lower administrative tribunals.


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Curial Defence:

However, nor do the general courts wish to fully orphan the citizen to the administrative tribunal in cases of, for example, egregious abuse of process or fairness.

Each jurisdiction is different in the extent of curial deference given to administrative tribunals. In Canada, the threshold seems to change every few years. The threshold du jour appears to be that a court of general jurisdiction will not interfere with - aka will defer to - an administrative tribunal's decision unless the decision is patently unreasonable.


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Curial Defence:

•The amount of deference an appeal court gives to an administrative tribunal will be based on the type of error, and the seriousness of the error.

•Errors of law are not usually grounds for an appeal to an appellate court


Standards of Review on Appeal of Decisions

Questions of Questions of LawLaw

Questions of Questions of FactFact

The standard of review used depends on the type of question being reviewed.

Questions of Law Versus Questions of Fact

• If the administrative agency has decided a question of law the reviewing court is free to substitute its own judgment for that of the administrative agency.– e.g., interpretation of statutory language

•However questions of fact are not easily overturned.

•Reviewing court usually defers to the agency’s fact-finding.

•To overturn a decision on an error of fact the factual finding would have to be:– An arbitrary, capricious abuse of process

Questions of Law Versus Questions of Fact

•The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error." A palpable error is one that is plainly seen. The reasons for deferring to a trial judge's findings of fact can be grouped into three basic principles….

Reasons to Defer on Questions of Fact

•Firstly, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce.

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When exercising powers of review or appeal, how “wrong” can the decision be before the superior courts intervene:

To determine whether a particular action or inaction below amounted to error by the lower tribunal, the court must select and apply a standard of review that gives an appropriate degree of deference to the lower tribunal

What is the Standard of Review on Appeal

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A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision.


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A high standard of review means that deference is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error.


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In Canada, a decision of a tribunal, board, commission or other government decision-maker can be reviewed on two standards depending on the circumstances. The two standards applied are "correctness" and "reasonableness."

In each case, a court must undertake a "standard of review analysis" to determine the appropriate standard to apply. This approach was adopted in Dunsmuir v. New Brunswick.

Standard of Review after Dunsmuir

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In 2008 the rules of judicial review have once again changed with the Supreme Court’s recent decision in Dunsmuir v. New Brunswick. The Supreme Court’s stated purpose for the changes is to achieve what the previous tests had failed to do, that is, "provide real guidance for litigants, counsel, administrative decision makers [and] judicial review judges." All 9 SCC judges in Dunsmuir agreed law on SoR needed revamping, but could not agree on details. There were 3 sets of reasons, five in the majority, three others concurred and Justice Binnie on his own


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Only Two Standards after Dunsmuir

• Correctness/no deference – is the finding “right”? • Reasonableness/Deference – is the finding w/in an

acceptable range of outcomes that can be justified or defended?

It is not necessary to determine the standard of review when a decision is attacked for procedural fairness. The only question is whether the principles of procedural fairness were violated.


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The three directives in the Supreme Court’s majority reasons in Dunsmuir provide significant clarification of judicial review jurisprudence, and this clarification could invoke a shift in favour of greater deference to administrative tribunals and the application of one standard of review.


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The most obvious change to judicial review is the abolition of the "pragmatic and functional approach" and its three standards of review, namely correctness, reasonableness simpliciter and patent unreasonableness.

In its place, the Supreme Court has implemented the "standard of review analysis," leaving only two standards of judicial review: correctness and reasonableness.


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The Supreme Court removed the distinction between "reasonableness simpliciter" and "patent unreasonableness," agreeing with D.M. Mullan’s criticism that "[t]here cannot be shades of rationality."

For anyone who has spent — or more cynically, wasted — days in court trying to articulate the difference between the two standards of review, you will appreciate that the Supreme Court’s decision is a welcomed and useful clarification.


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The majority decision also provided clarification on the test for reasonableness, emphasizing that (i) administrative decisions may "give rise to a number of possible, reasonable conclusions" and (ii) a judicial review is concerned with "whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law."


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In determining whether a reviewing court ought to apply the standard of correctness or reasonableness, the new "standard of review analysis" requires consideration of the following four factors:

1.the presence or absence of a privative clause; 2.the purpose of the tribunal as determined by

interpretation of enabling legislation; 3.the nature of the question at issue; and 4.the expertise of the tribunal.

Which Standard to Use after Dunsmuir

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In determining whether a reviewing court ought to apply the standard of correctness or reasonableness, the new "standard of review analysis" requires consideration of:

Privative clause Will typically indicate reasonableness standard applies, unless

- constitutional question - narrow (“true”) jurisdictional question so that correctness applies


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Nature of question to be decided Correctness standard applies to:

- Constitutional and true jurisdictional questions- General law

• of “central importance” • outside specialized area of expertise


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Nature of question to be decided Reasonableness standard (may) apply

– - If a privative clause– - To interpretation of own Act – - To application of common law in specific – context, if specialized expertise– - To ?’s of natural justice and fairness, fact, – policy and exercises of discretion


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In determining whether a reviewing court ought to apply the standard of correctness or reasonableness, the new "standard of review analysis" requires consideration of the following four factors:

Tribunal expertise - Purpose of Tribunal

• Some think are “secondary” tests• Some query how to establish expertise• What if appellate court also has expertise, such as

Human Rights issues


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After hearing an appeal, the Court may:

• Dismiss the appeal• Grant the appeal and impose a new remedy• Order the agency to make the decision it should

have made• Exercise discretion that the agency should have

exercised• Grant the appeal and send it back to the tribunal to

be re-heard by a different member of the board

After the Appeal, What Can the Court Order?

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In an appeal to the superior court, only a lawyer or the party may represent himself or herself.

Who can represent at an appeal???

Judicial Review

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JUDICIAL REVIEW

• There are many factors which will provide a remedy through the use of Judicial Review

• Parliament has only conferred a legal decision making power on the basis that it was to be exercised on the correct legal basis.

• Ontario has the Judicial Review Procedures Act• A JR can be filed if the decision maker is ultra vires• A JR is heard by the Superior Court • If the enabling statute doesn’t provide a right of appeal, a JR

may be the only avenue to correct an unfair decision

Judicial Review:

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Judicial Review Procedures Act

2. (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. R.S.O. 1990, c. J.1, s. 2 (1).

Judicial Review:

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What is Judicial Review?:

Judicial review is not an appellate process.If successful, appeals can change decisions e.g. courts and tribunalsJR provides no guarantee of final outcomeJR is about the legality of decision itself. Is the authority acting within its powers?Quashing order which is the classic remedy will refer the matter back to the decision maker who will be required to take the decision lawfully next time.

Judicial Review:

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LEGAL BASIS FOR JUDICIAL REVIEW

• In exercising discretion the decision-maker must have regard to the statutory purpose but also in reaching their decision it must be clear that relevant considerations have been taken into account and that irrelevant considerations have been ignored.

Judicial Review:

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JUDICIAL REVIEW APPROPRIATE IF:• Constitutionality is an issue• Agency acted outside the scope of delegated authority• Procedural due process violations • Arbitrary and capricious decision• Abuse of agency discretion• Separation of powers• Not taking into account correct & relevant considerations• Taking into account irrelevant considerations• On occasion, JR is appropriate if decision given is clearly

not consistent with the evidence at trial

Judicial Review:

The meaning of ultra vires

Ultra vires - beyond the powers - the courts are called in to act because a public body is acting unlawfully by exceeding its powers.In other words exercising a control function under the rule of lawStatutory powers - discretionary powersPrerogative power - powers formerly exercised by King/Queen now by ministers e.g. mercy, negotiating treaties, declaring warProcedural defect in the conduct of the public body or agency

Special Remedies for Judicial Review

Quashing Order/Certiorari has the effect of quashing an ultra vires decision.If the remedy is granted an ultra vires decision will be rendered VOID.

Prohibiting Order /Prohibition - serves to prohibit the authority from acting unlawfully in the future.

Mandatory Order/Mandamus - instructs (mandates) an authority to do its statutory duty, which may be to exercise its statutory discretion lawfully in the future

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CONDITIONS BEFORE JUDICIAL REVIEW:

1.The case must be ripe for review.2.The petitioner must have exhausted all

administrative remedies.3.The decision of the administrative agency must

be final before judicial review can be sought.4.Remedy of last resort, all other avenues

exhausted

Judicial Review:

Ontario Ombudsman

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Ontario Ombudsman

•A person affected by a decision may submit a complaint to a federal or provincial ombudsman regarding the decision or procedure

•An ombudsman may respond by conducting a review and making recommendations, but the ombudsman has no inherent powers of a court to overturn a decision

•An ombudsman is not usually interested in taking complaints about a finding, they are more interested in reviewing a process that may be unfair


BCTA 308:Administrative Law

End of Presentation

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Chapter 16 challenging_decisions_week_12