Administrative law is the branch of law that deals with government decisions and how they affect the public. Our team can represent you before BC and Federal administrative tribunals, such as the Employment Standards Tribunal, the Human Rights Tribunal or the Workers’ Compensation Appeal Tribunal. We can also assist you in applying for judicial review of adverse decisions made by such tribunals.
Broadly speaking, administrative law is the field of law that is concerned with decision-making by government bodies, including decisions made by Ministers, civil servants and statutory tribunals. Administrative law comprises a large number of sub-fields, including municipal law, human rights law, and immigration law.
A decision by a government body that is adverse to you can often be reviewed in a number of forums. For example, a finding by Citizenship and Immigration Canada (CIC) that a person has lost their Canadian permanent residence is subject to independent merits review by the Immigration Appeals Board (IAB), which is a tribunal created by the Immigration and Refugee Protection Act 2001. If the IAB affirms or upholds that adverse decision, the person affected then has the right to seek judicial review of that decision in the Federal Court, and potentially appeal against that decision all the way to the Supreme Court.
There are a number of important distinctions between merits and judicial review. The most important is that a merits review tribunal may simply make its own decision on a matter before it, and substitute that decision for that of the original decision-maker. For example, s.239 of the BC Workers’ Compensation Act (“the WCA”) permits the Workers’ Compensation Appeals Tribunal (WCAT) to review the decision of a “review officer”. If the WCAT disagrees with the review officer’s decision, it can simply overrule it and substitute a new decision.
On the other hand, a court may not simply substitute its opinion for that of an administrative decision-maker or tribunal. In Canada, a reviewing court (whether a BC or Federal court) is generally concerned with whether the earlier decision was made in accordance with procedural fairness (for example, that the applicant was given a fair hearing, that the decision-maker was not biased, and so on), or whether the decision is “reasonable”. A decision is not unreasonable simply because a court disagrees with it – instead, it must fall outside a “possible, acceptable range of outcomes”, and a degree of deference must usually be shown to the decision-maker. Further, a court cannot simply make its own decision on an application, and instead must remit the matter to the decision-maker to be remade in accordance with law. So, for example, if the BC Supreme Court reviews a decision of the BC Human Rights Tribunal (HRT), it cannot set that decision aside unless there was a failure of procedural fairness, or the decision is in all the circumstances unreasonable. Further, if the application for review is successful, the matter will be returned to the BC HRT for redetermination.
In BC, the workings of administrative tribunals are governed by the Administrative Tribunals Act 2004 (“the ATA”), which is a complex piece of legislation. To determine your rights before a BC tribunal, and your rights to judicial review of an adverse tribunal decision, you must generally consult both the ATA and the individual piece of legislation that creates the tribunal. So, to continue our example of a WCAT determination, you need to examine both the ATA and the WCA to determine the powers of the tribunal, the means by which a hearing by the WCAT is conducted, and your rights of review of an adverse decision.
Before embarking on an application before a tribunal, or an application for judicial review of an administrative decision, you need expert advice on how to conduct your case, what evidence you will need to provide, and your prospects of success overall. Our administrative law team can help you with all of these issues.