Administrative tribunals are specialised governmental agencies established under federal or provincial legislation to implement legislative policy. Some public boards and public decision makers also have had powers of decision making conferred upon them by statute. Such powers of decision making are conferred upon administrative tribunals, boards or other decision makers in order to provide a more expeditious, less formal and sometimes less expensive method (than the courts) for resolving certain types of disputes or issues. Administrative tribunals also provide a forum in which complex issues can be decided by adjudicators with expertise in the particular field.
While most tribunals are required (by common law or statute) to follow some basic rules of procedure, there is no specific set of rules that applies universally. The procedure to be followed by a tribunal may be found in the enabling statute or related regulation and in rules, guidelines, or directives formulated by the tribunal. Procedures may also be set out in a notice issued for a particular proceeding or they may be a matter of unwritten tribunal policy or practice.1 Ontario, for instance, has enacted a minimum code of procedure in the Statutory Powers Procedure Act,2 which some tribunals are required to follow.
The fact that no procedural rules are prescribed does not free a tribunal, board, officer or public decision maker from all procedural constraints. When statutory decision makers perform a judicial or quasi-judicial decision making function, they are governed by common law procedural principles. The standard of procedural fairness to which a party before an administrative agency may be entitled will vary with the context.
In some cases, the seriousness of the potential impact of a decision on a party will require almost court-like procedures. In such cases, it is often said that the party to the administrative proceeding in question will be entitled to a decision in accordance with the principles of natural justice.
The principles of natural justice include the right to be heard, and the right to an impartial decision maker. A party who has a right to be heard is entitled to sufficient prior notice of the proceeding so that the party has the opportunity to prepare his or her case, attend before a decision maker and make representations. The right to proper notice also includes the right to know the case that must be met; in other words, proper notice will include providing details of the case to the responding party.
An impartial decision-maker is one who is free of a reasonable apprehension of bias, whether personally or institutionally. Reasonable apprehension of personal bias might result when, for instance, a decision maker has a pecuniary interest in the outcome of the proceeding, or a prior relationship with one of the parties.
In some cases, the governing legislation will contemplate a very informal kind of decision. In such circumstances, particularly where the impact of a decision may be relatively minor, a party to an administrative proceeding may not be entitled to full natural justice. Even where this is the case, however, courts can assess the procedural adequacy of decisions made by tribunals, boards or public officials based on the doctrine of fairness.
At minimum, the doctrine of fairness requires that before a decision adverse to a person’s interests is made, that person should be told the case that they have to meet and should be given an opportunity to respond. This ensures that the person to be affected by the decision is given an opportunity to influence the decision. Additionally, the information received from that person should assist the decision maker in arriving at a rational and informed decision.3
Examples of administrative tribunals, boards and public decision makers in Ontario include:
Agriculture and Food Appeal Tribunal
Assessment Review Board
Consent and Capacity Board
Criminal Injuries Compensation Board
Ontario Energy Board
Environmental Review Tribunal
Ontario Film Review Board
Health Services Appeal and Review Board
Ontario Human Rights Commission
Information and Privacy Commissioner
Ontario Labour Relations Board
Landlord and Tenant Board
Licence Appeal Tribunal
Liquor Control Board of Ontario
Ontario Municipal Board Financial Services Tribunal
Ontario Review Board
Workplace Safety and Insurance Appeals
Courts have supervisory jurisdiction over the actions of public tribunals, boards, officers and public decision makers. In some circumstances, parties who have been affected by decisions of tribunals, boards or other public decision makers may bring an application in court to have the administrative decision reviewed by the court. This is called judicial review. There are two broad categories of judicial review: procedural judicial review and substantive judicial review. Procedural judicial review involves an allegation that an impugned administrative decision was reached in a manner not in compliance with procedural fairness (i.e. there was a denial of natural justice, or the decision was otherwise procedurally unfair). Substantive judicial review challenges the decision itself, either on the basis that the decision-maker in question did not have the power to make the decision he or she purported to make (i.e. acted outside his or her jurisdiction); or on the basis that the decision was either incorrect or unreasonable.
Judicial review can be pursued provincially before the Divisional Court (a special branch of the Superior Court of Justice) or federally before the Federal Court. The Federal Court may review any authority that exercises powers conferred upon them by a federal statute or order.4 The review of federal administrative action is governed by the Federal Court Act5 and the Federal Court Rules.6
The Divisional Court has jurisdiction to review decisions of bodies exercising statutory powers of decision conferred upon them by provincial statute. Judicial review in Ontario is governed by the Judicial Review Procedures Act7 and the Rules of Civil Procedure.8
Availability of Judicial Review
The court’s supervisory jurisdiction over administrative tribunals is inherent in any system governed by the rule of law. Neither Parliament nor the provincial legislatures have the power to exclude the right to judicial review, since citizens are always entitled to a court’s ruling as to whether administrative power has been exercised in accordance with all applicable legal principles.9
Therefore, the right to judicial review need not be set out in a statute. The right to judicial review is, however, discretionary. There are circumstances in which courts will refuse to exercise their discretion. Some examples of such circumstances include: where there has been unreasonable delay in initiating judicial review;10 where the issues raised are hypothetical, moot or are not justiciable (appropriate for court review); and where alternative remedies, such as the right of appeal or reconsideration have not been exhausted.11
Judicial review is not the same as an appeal. In Ontario, the court is not statutorily precluded from conducting judicial review even if there is a right of appeal. Similarly, the court is not precluded from reviewing issues that have already been the grounds of an appeal. Conversely, the Federal Court Act bars judicial review by the Federal Courts where a statutory right of appeal exists.12 Where a party has a statutory right of appeal on certain grounds, judicial review may still be available on grounds not provided for in the statute.13
Standard of Review
The “standard of review” refers to the level to which the courts will defer to the decision of an administrative decision maker, rather than overturning that decision. Courts generally approach the review of administrative action with some deference in order to respect the notion that the administrative tribunal being reviewed is best able to determine the issues in question given its specific mandate and its expertise.
The jurisprudence has traditionally identified a spectrum of standards of review containing three points which include patent unreasonableness, reasonableness simpliciter, and correctness.14 The Supreme Court of Canada, however, has very recently held that it is appropriate to simplify these different standards, replacing them entirely with two standards: reasonableness and correctness.15
Under the traditional test, the most deferential standard is that of patent unreasonableness. If the defect of a decision is apparent on its face, it is said to be patently unreasonable.16 If, however, it takes some significant searching to identify a defect in a decision, then the decision is not patently unreasonable.17 The standard of patent unreasonableness was introduced primarily to deal with situations where legislation contains a clause (called a “privative clause”) that in some manner suggests that the decision of an administrative agency is not subject to review by any court. In such circumstances, the standard of patent unreasonableness is a compromise between the legislature’s apparent intention to exclude review and the constitutional principle that all delegated decision-making can be tested for compliance with the terms of the legislation providing for it. The theory here is that, while legislatures may legitimately create tribunals that have the right to be wrong, no legislature can create a tribunal possessing an untrammelled right to make any decision that it is minded to make, however plainly irrational it might be. A patently unreasonable decision is one that is not simply incorrect, but is obviously irrational.
The reasonableness simpliciter standard lies in the middle of spectrum. This standard is distinguished by the immediacy or obviousness of the defect. Reasonableness simpliciter is equivalent to clearly wrong. As such, it is less deferential than patent unreasonableness and more deferential than the correctness standard.18
The least deferential standard is the standard of correctness. Under this standard, the court will not tolerate error and will generally intervene unless the impugned decision is correct.
In determining which of the three standards to apply, courts use what is known as the “pragmatic and functional” approach. This approach involves weighing four different factors, none of which, on its own, is determinative.19 The four factors are:
(a) Privative Clauses or Statutory Rights of Appeal: A tribunal’s enabling statute may include a privative clause that limits or excludes judicial review and renders the tribunal’s decision final and binding. Courts may exercise their supervisory jurisdiction in such circumstances notwithstanding the existence of a privitive clause. The fact that such a clause exists is, however, suggestive that a high level of deference should be given by the courts.
Conversely, the existence of a statutory right of appeal indicates that the tribunal’s decision was not intended to be final. As such, a high level of deference may not be appropriate. However, as previously discussed, a court may refuse to judicially review an administrative decision until statutory rights of appeal have been exhausted.
(b) Expertise: The courts will also consider the relative expertise of the tribunal, with respect to both questions of law and of fact, as well as the composition of the tribunal and its mandate.20 If the tribunal is perceived to have specialised knowledge or expertise over the particular subject matter, more deference will be shown. Conversely, if the courts are equally competent and experienced in the particular field, a less deferential standard may be appropriate.21
(c) The Purpose of the Statute as a Whole and the Provision in Particular: Where the purpose of the statutory scheme, the tribunal’s mandate, and the questions at issue relate primarily to the rights of the specific parties, the courts will generally be more deferential. Where the interests at stake are broad and affect more people than the interested parties, courts will show less deference.22
(d) The Nature of the Issue: The general rule is that questions of fact are approached more deferentially, while questions of law are subject to a more searching (or less deferential) standard of review.
All of these principles must now be revisited in light of the Supreme Court of Canada’s recent indication that it wishes to simplify the analysis of standard of review, and replace it with two standards, being reasonableness and correctness. As with most such revolutions in judicial thinking, it is too early to tell how in practice these two standards will be applied.
Relief Available Under Judicial Review
The court’s remedial jurisdiction on judicial review is limited to the powers outlined in the applicable statute. The powers of the Ontario Divisional Court, for instance, are set out in s. 2 of the Judicial Review Procedures Act and, in the case of the Federal Courts, in s. 18.1(3) of the Federal Court Act.
With the exception of costs, the courts can only grant relief against the tribunal under review. For example, a court may, as a result of an application for judicial review, order a tribunal to reconsider a matter. However, the court cannot require an applicant to do or refrain from doing any act on an application for judicial review. Neither the Federal Court nor the Divisional Court may award damages to a party on judicial review. They are, however, able to award costs of the application for judicial review as between the parties.23
Both the Federal Courts and the provincial Divisional Court have the power to make interim orders, including staying (or suspending) an administrative proceeding pending judicial review. This power is significant for two reasons. First, an administrative decision is not automatically stayed pending judicial review. Thus, if the court was unable to order a stay, an administrative proceeding could continue while an application for judicial review is underway. Second, many administrative tribunals do not have the power to stay their own decision pending review. In such circumstances, even if an administrative tribunal thought it appropriate to suspend their own proceeding while an application for judicial review proceeded, that tribunal would not have the power to do so.
A court will generally grant a stay if the applicant can establish: (1) that there is a serious issue to be tried; (2) that irreparable harm will result if the matter is not stayed; and (3) that the balance of convenience and the public interest favour granting a stay.24
The circumstances in which judicial review will be available as a potential remedy will vary depending on the statute governing the administrative body that first made the impugned decision. Counsel can provide advice about whether judicial review is appropriate, and whether it is likely to succeed in a particular case.