JUDICIAL REVIEW: FUNDAMENTALS
PAPER 3.1
Fundamentals of Judicial Review—The Record
These materials were prepared by Adele J. Adamic, Legal Services Branch, Ministry of Justice, Vancouver, BC, for
the Continuing Legal Education Society of British Columbia, May 2014.
© Adele J. Adamic
3.1.1
FUNDAMENTALS OF JUDICIAL REVIEW—THE RECORD
I.
Introduction .................................................................................................................................... 1
II.
What Is the Record?....................................................................................................................... 1
A. The Judicial Review Procedure Act, 1996 R.S.B.C., c. 241 .................................................. 1
B. The Administrative Tribunals Act, S.B.C. 2004, c. 45 .......................................................... 2
C. Provisions in Other Statutes ................................................................................................... 3
D. Summary .................................................................................................................................. 4
III.
Who Puts the Record Into Court? .............................................................................................. 4
IV.
What Evidence Goes Before the Court? ..................................................................................... 5
V.
Addressing Gaps in the Record .................................................................................................... 6
VI.
Document Management................................................................................................................ 7
VII.
Practice Points................................................................................................................................. 8
I.
Introduction
As the number and variety of administrative law decision makers has grown over the last 60 years,
so too has the legislative and judicial notion of what may constitute the record in a judicial review of
those decision makers. While being deferential to the specific expertise of the decision makers, the
court also wants to have sufficient material before it to address the issues raised in a judicial review.
What constitutes the record in a judicial review may vary, due to the nature of the decision an
administrative law decision maker is required to make, and the severity of consequences a party may
suffer from that decision. This paper will distill the outline of what may be included in the record.
II.
What Is the Record?
In 1952, Lord Denning in R. v. Northumberland Compensation Appeal Tribunal, All England
Law Reports (Vol. 1 C.A.) at 122, said, “the record must contain at least the document which
initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the
reasons , unless the tribunal chooses to incorporate them.” Today the record would include
everything on Lord Denning’s list, whether he included or excluded it. The record may also include
tape recordings and things that could not have been contemplated all those years ago.
A.
The Judicial Review Procedure Act, 1996 R.S.B.C., c. 241
The definition of the record in this statute is as follows:
“record of proceeding” includes the following:
(a) a document by which the proceeding is commenced;
(b) a notice of the hearing in the proceeding;
3.1.2
(c)
(d)
(e)
(f)
an intermediate order made by the tribunal;
a document produced in evidence at a hearing before the tribunal,
subject to any limitation expressly imposed by any other enactment on
the extent to which or purpose for which a document may be used in
evidence in a proceeding;
a transcript, if any, of oral evidence given at the hearing;
the decision of the tribunal and any reasons given by it;
Section 17 of the same Act says:
17. On application for judicial review of a decision made in the exercise or
purported exercise of a statutory power of decision, the court may direct that the
record of the proceeding, or any part of it, be filed in the court.
The Act made it clear that anyone who was empowered to make a decision under a statute was
subject to judicial review. All administrative law decision makers were subject to judicial review.
Section 3 of the Act sets this out:
3. The court’s power to set aside a decision because of error of law on the face of
the record on an application for relief in the nature of certiorari is extended so that
it applies to an application for judicial review in relation to a decision made in the
exercise of a statutory power of decision to the extent that it is not limited or
precluded by the enactment conferring the power of decision.
B.
The Administrative Tribunals Act, S.B.C. 2004, c. 45
In 2004, there were enough administrative law decision makers in BC to warrant the enactment of a
powers and procedures act for them, with menus of options of powers and abilities available to
different types of decision makers. This Act also sets out limitations for what may be contained in
the record. In s. 29 documents presented, or statements made in a settlement or dispute resolution
process before a decision maker cannot be disclosed or compelled to be disclosed unless the parties
to the application consent. Settlement material is routinely excluded from the record produced by
an administrative law decision maker.
Administrative law decision makers usually have the power to compel a party to a proceeding to
produce documents or things in the possession or control of a party to the proceeding (s. 34(3)(b)).
Under s. 35 of the Act, “a tribunal may tape or transcribe its proceedings.” Tribunals such as the
Workers’ Compensation Appeal Tribunal (“WCAT”) regularly record their oral hearings, even
though that recording is rarely provided to the parties. If a tribunal chooses to record its
proceedings s. 35(2) of the Act says that, “the transcription or tape recording must be considered to
be correct and to constitute part of the record of the proceeding.” There is a tactical advantage
for some tribunals to record their proceedings in that they will control the record that they create.
Many administrative law decision makers make decisions by exchange of submissions on most
occasions, so there will of course be no transcript of proceedings. For many other bodies the desire
for informality, and the expense of proper recording will mean that the record if they are judicially
reviewed will contain no transcript of proceedings.
Section 40 of the Act sets out what “information [is] admissible in tribunal proceedings,” whether
or not an oral hearing is held. Information before an administrative tribunal need not be
information that would be admissible in a court of law. The information before an administrative
law decision maker needs to “relevant, necessary and appropriate,” according to s. 40(1). That is the
information that will form the record that goes to the court on judicial review. Section 40(3) notes
that the law of privilege applies to administrative law decision makers, and that anything that has a
privilege under the law of evidence will not form part of the record. Section 40(5) restates the
prohibition against including dispute resolution materials in the record.
3.1.3
The final decision of the tribunal is part of the record. Section 51 of the Act provides that “the
tribunal must make its final decision in writing and give reasons for the decision.” Be aware that,
like in the courts clerical errors or other errata may be corrected by the decision maker after the
final decision issues. Many statutes provide explicitly for this. When applying for judicial review
you should insure that such an amendment was not in fact made to the final decision.
Section 55(1) of the Act again protects dispute resolution processes from production. Section 55(2)
provides that “the court may require the tribunal to produce the record of a proceeding” that is
the subject of an application for judicial review under the Judicial Review Procedure Act.
A party may think that they can make a request for information before an administrative law
decision maker by using the provisions of the Freedom of Information and Protection of Privacy
Act, R.S.B.C. 1996, c. 165 (“FOIPPA”). Section 61 of the Act forecloses this possibility. In regard to
all administrative law decision makers s. 61(2) says that FOIPA does not apply to the following:
(a)
(b)
(c)
(d)
(e)
(f)
a personal note, communication or draft decision of a decision maker;
notes or records kept by a person appointed by the tribunal to conduct
a dispute resolution process in relation to an application;
any information received by the tribunal in a hearing or part of a
hearing from which the public, or a party or an intervenor was
excluded;
transcription or tape recording of a tribunal proceeding;
a document submitted in a hearing for which public access is provided
by the tribunal;
a decision of the tribunal for which public access is provided by the
tribunal.
There are two reasons for s. 61; the first is that some records are in control of the tribunal and
publically provided by the tribunal, so access and control will not be duplicated under two different
statutes, that of the decision maker and FOIPPA. Second, there are things that will not be part of
the tribunal record and cannot be accessed in any other form, such as decision maker notes or
dispute resolution materials.
C.
Provisions in Other Statutes
The record may vary significantly from statute to statute, matter to matter. The more serious the
consequence of an administrative law decision, the more evidence that will have to be produced
before the administrative law decision maker, the larger and more detailed the record. Professional
discipline may have life altering consequences for a party, and therefore requires a high level of
disclosure of evidence. Where there are levels of appeal and reconsideration within a statute, there
are often provisions regarding the record. Make sure that you have reviewed the home statute of the
decision maker. In addition, review the rules of any appeal body under the statute as they may
contain provisions regarding the content and the structure of the record.
Under s. 112(5) of the Employment Standards Act, 1996 R.S.B.C., when an appeal of a
determination of the Director of Employment Standards is filed the Director, “must provide the
tribunal with the record that was before the director at the time the determination, or variation of it,
was made, including any witness statement and document considered by the Director.” If the
tribunal or a party to a matter under that Act thinks that the record produced by the Director under
s. 112(5) is not complete, the tribunal may issue an order under s. 109(1)(g) to require the delegate
of the Director to produce a written statement, under oath or affirmation that the record is
complete, or provide documents that may have been inadvertently omitted. If there should be a
3.1.4
judicial review of the final decision of the Tribunal, they can take steps to make sure that the record
before them is as complete as possible.
Many bodies produce a large body of significant decisions, such as the Workers’ Compensation
Appeal Tribunal and the Human Rights Tribunal. They have more sophisticated processes for
constructing, and producing the record. Judicial decisions on those matters, in addition to statutory
and regulatory provisions, and procedural rules, will provide a road map as to what you can expect
to be in the record when you deal with them. If a body is seldom judicially reviewed, in addition to
examining statutory and regulatory provisions form which their decision making authority flows,
you will have to examine their decision to see what findings of fact and law they made, and then
determine if evidence that supports those findings is contained in any record they produce. You will
also need to canvas your client to see what evidence they presented to the decision maker, and
determine if that evidence is in the record. You will further have to determine if evidence is relied
on that has not been disclosed to your client.
D.
Summary
If a decision maker has considered material or information beyond the record, it will constitute a
reviewable error. Currently the record should include:
(a)
originating and other documents equivalent to the pleadings in a civil case;
(b)
documents introduced into evidence including expert opinions and reports (e.g.,
medical, geological, engineering);
(c)
any statement of facts agreed to by the parties;
(d)
any physical evidence provided to the decision maker and marked as an exhibit in a
proceeding (e.g., video and audio tapes);
(e)
oral evidence heard by the tribunal in either a transcription or a recording.
III. Who Puts the Record Into Court?
The final administrative law decision maker under a statutory authority puts the record into court.
In some statutes there is only one level of decision maker, and that will be who should file an
affidavit with the court attaching the record that was before them when they made their decision. In
many statutes there will be first level decisions that may be appealed or appealed and reconsidered,
often by another body apart from the first instance decision maker. In this case, the appeal and/or
reconsideration body will file the record with the court when a petition for judicial review is
received. In some cases there is an internal review of a decision, so all the materials from the first
instance and appeal decision should be available to form the record in a judicial review.
The practice of some appeal and/or reconsideration decision makers is to put only the record relied
on by them, at their level of decision making, in the record that they provide to the court on judicial
review. This may mean that materials that a party expects to see in the record are not included in
what is provided to the court. Since the Lord Denning decision in Northumberland there has been a
significant expansion of what is included in the record on judicial review. The court wants to see
what was before all of the decision makers, so that it can fairly and fully deal with the grounds of
judicial review, especially if one of those grounds is that there was insufficient evidence for a
particular finding of fact. The court cannot do this full and fair review without a more complete
record. Before formal proceedings to require production of the record, counsel for the petitioner
3.1.5
should contact the party providing the affidavit attaching the record, to see if in fact the affidavit
contains all of the material that were in possession of the decision maker. While redundant materials
need not be produced to the court, there may be omissions that are significant to establishing a
ground of review.
If the record cannot be agreed upon before the hearing of the petition, then it will be necessary to
decide which documents constitute the record, as a preliminary matter before the court deals with
questions of law and jurisdiction. 1 This is usually done at the same time that the petition is heard.
The record is “made” during the administrative law processes undertaken by the statutory body
whose duty it is to decide a particular issue, or issues. The record should include all process
documents, demands, interim decisions, correspondence, emails, evidence and submissions. Counsel
should immediately review the record. Significant familiarity with the record is essential to defining
the grounds of judicial review, and bringing forth the evidence that supports them. That familiarity
with the record as presented by the decision maker is the simplest and most effective way so
identify gaps or inconsistencies in the evidentiary basis used by the decision maker to find facts and
make decisions under a statute.
IV. What Evidence Goes Before the Court?
As noted at the start of this paper what constitutes the record on judicial review has considerably
expanded over the past 60 years. This has been established by statutes, such as the JRPA, and by
judicial decisions. As with all decisions concerning administrative law matters, decisions concerning
what goes before the court can be very context sensitive. That means that the nature of the decision
being made, the parties to the decision, and the impact of the decision will all be relevant to the
determination as to what goes before the court.
All parties to the administrative proceeding must be given notice of all parts of the record. If your
client makes you aware that they did not have notice of some of the documents produced in the
record, this may be reflect a failure of procedural fairness that will allow the decision to be
quashed on judicial review. This is because administrative law decision makers cannot base their
decisions on documents or materials that were not provided to the parties for their examination
and response. This is a basic tenet or fair process, the opportunity to be informed and to respond
to that information.
Judicial decision has established both additions to and exclusions from the record. As noted, the
ATA, as well a case law, excludes the notes, and drafts, of decision makers from the record. There
are practical reasons for this; notes of a decision maker are likely not verbatim notes of what was
said and therefore are likely to be incomplete and unreliable, the notes may contain tentative
observations of the decision maker that later prove inaccurate, finally the notes are personal
notations made by a member during a hearing. There are some exceptions to this. Where the parties
agreed that the notes of the arbitrator would prevail in the event of a conflict, the court found that
there was sufficient reason to include the notes as part of the record. 2 Other cases have found that
when arbitrator’s notes are taken for the purpose of the proceeding, rather than personal purposes,
they may form part of the record.
1
See: Gallant v. Workers’ Compensation Board (N.B.), [1987] N.B.J. No. 1168.
2
Newfoundland (Treasury Board) v. Newfoundland and Labrador Assn. Of Public and Private
Employees, [2000] N.J. No. 216.
3.1.6
Submissions of counsel at the administrative levels, as well as briefs of authorities at those levels do
not become part of the record that is presented to the court. Administrative law policy manuals that
were not before the administrative law decision maker, have been found not to form part of the
record on judicial review. Confidential information, the production of which is prohibited by statue
or regulation, and which does not appear on the tribunal record may nonetheless be sealed and
included in the record that goes to the court.
Evidence may be recorded, or transcripts of evidence may be produced by an administrative law
decision maker. If produced they are likely part of the record in a judicial review. In a case where
a partial transcript of a long and detailed proceeding was produced on judicial review by a party
to that decision, the BC Court of Appeal decided that as one of the grounds of judicial review
was that there was no evidentiary basis for some of the findings of fact or the Human Rights
Tribunal, the transcript was part of the record. As it would assist the court with that ground or
review, and there would be no substantial prejudice to any party by its admission it became part
of the record before the court. If there is one decision that counsel should review concerning the
current scope of the record in the courts in this province it is this decision, SELI Canada Inc. v.
Construction and Specialized Workers’ Union, [2011] B.C.J. No. 1568 (C.A.). The SELI is most
valuable for its detailed and readable review of the evolution of the record on judicial review,
and the reasons for that.
V.
Addressing Gaps in the Record
In some matters counsel will have been involved from the first instance when their client begins to
deal with the administrative law decision maker. In that case, counsel will be able to build the
record before the tribunal, and hence the record that is before the court. Unfortunately, due to the
economics of legal representation this is often not the case. Counsel is called in after all of the
administrative decisions have issued, and the record will be what is produced by the decision maker
of last instance. In a judicial review the record is the evidence before the court. If that record is
insufficient to address a ground of judicial review, then counsel will have to take steps and make
applications to deal with this, or their petition will be doomed from the outset. As one of the other
presenters at this course is addressing applications for new evidence on judicial review, this paper
will be confined to disputes as to evidence that was created, but may have been omitted from the
record, or considered not to form part of the record by the decision maker. That was the case in
SELI supra where there was “an imperfect and unofficial transcript of the tribunal hearing.” The
grounds for review in SELI said that as a number of the findings were not supported by evidence
and were unreasonable. The court went to s. 59(2) of the ATA which says, “A court must not set
aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the
evidence, the finding is otherwise unreasonable.” The Supreme Court chambers judge in SELI said
that, “the court is however mandated by section 59(2) of the ATA to scrutinize the evidence to
determine whether there is evidence to support findings of fact and whether such findings are
reasonable in light of al of the evidence. The court cannot carry out its statutory mandate if the
evidence is not before it.” In the Court of Appeal, the Human Rights Tribunal argued that it had
the right to determine the extent of the record and that the court was not entitled to look beyond
that record in undertaking a judicial review. The Court of Appeal noted that the more deferential
the standard of review to the decision maker, the more essential it will be for the reviewing court to
have a full record of the evidence.
3.1.7
Courts in other cases have also decided that prima facie a transcript is part of the record that the
tribunal produces to the court in a judicial review. 3 I note that the BC Human Rights Tribunal now
routinely records its hearings. As noted earlier if the full administrative record is not produced by
the decision maker it can be compelled. The hearing of such applications usually is handled as a
preliminary matter in the judicial review. However, it may occur, as it did in SELI, that the
application for admission of the transcript by the employer was heard separately at the trial level
and then appealed, before the substance of the judicial review was dealt with. Usually only the
decision maker can be compelled by the court to produce additional material for the record, third
party records usually cannot be compelled. While affidavits may be received by the court on judicial
review viva voce evidence is rarely heard on judicial review.
If a supplementary affidavit is required to put the full record before the court the test is, “whether
the evidence will serve the interest of justice, whether it will assist the court and whether it will
seriously prejudice the other side.” 4 If an affidavit or supplementary affidavit is filed with the court,
there is no absolute right to cross examine on the affidavit. When cross-examination is allowed it
must be relevant to the grounds in the petition. The courts will not order addition to the record
based on a mere speculation that a ground of review exists. Where a petitioner wants disclosure of a
broader record to explore the “mere possibility of bias” the courts will not exercise their discretion
to allow more material to be placed on the record. 5
In some cases, the decision maker will seek to supplement what they see as gaps in the record.
Again, the courts will apply the above noted tests to determine if the additions to the record should
be allowed. In Sandher v. Lehbauer, [2012] B.C.J. No. 1026 (S.C.), the court had to determine
whether the affidavit of a police officer who had issued a driving suspension to the petitioner was
admissible as part of the record on judicial review. The court held that, “to permit the officer to
supplement his notes raised the appearance of him defending or supplementing his decision and
potentially the appearance of, or actual reconstructing of, his evidence in order to justify his
decision. The latter would undermine the judicial review process” (para 40). The court referred to
other decisions of the BC courts concerning the record to note that supplementing the record could
not turn a judicial review to a hearing de novo or a re-hearing of the merits.
Extrinsic evidence is not included in the record and will not be added to the record with one
exception that is set out in both Northumberland and SELI. That exception is when relief in a
judicial review is granted on the ground of “want of jurisdiction, or bias, or fraud, then affidavit is
not only admissible, it is as a rule necessary.” 6
VI. Document Management
The devil is in the details in a judicial review, and those details are set out in the record that is
presented to the court. While there is dispute among counsel whether it is knowledge of the facts or
legal argument that cause a judicial review to succeed, it is likely that if counsel is not very familiar
with the facts, they will be compromised in taking advantages for success in judicial review that may
present themselves. Have your assistant or paralegal copy, tab and index the record upon receipt. A
3
Storey v. Saskatchewan (Municipal Inspector), [1998] S.J. No. 515 (Q.B.) para. 18.
4
Canwood International v. Bork, 2012 BCSC 578.
5
Hammami v. College of Physicians and Surgeons of British Columbia, [1996] B.C.J. No. 624 (C.A.).
6
Northumberland at 122.
3.1.8
strategic review of the record, dividing the evidence into tribunal process, correspondence,
documents and other evidence will assist in clarifying gaps in the record, and the basis for findings
of fact. On occasion, a review of the record will cry out for a finding of fact that was plain on the
record, and yet not made by the decision maker. Failure to find facts that are clear from the record
can also mean that the administrative law decision maker misdirected themselves. It can mean that
they were not caused to examine legal issues that would be raised by the particular fact.
Do not search for the smoking gun in the evidence. Most often it is what is missing that will be
significant, not what you may find on the record. Administrative processes usually involve a
breadth of contact with bodies, individuals, and sources such as corporate and other registries. They
also involve an accretion of evidence, and other materials, over time. Be aware both of the parties
involved in the matter, and those who are not involved. Third parties, and what they may offer in
evidence, will not matter on judicial if they were not engaged in any way with the administrative
processes. Beware of timelines, but also be aware that delay will not have the same consequences in
administrative matters as it will in criminal law. Look to the record to make sure that your client
has exhausted all statutory processes, and that judicial review is indeed the only option available to
your client. Make sure that the record reflects that all the necessary steps have been taken.
Know the “story” that is made out by the materials that the decision maker will file as the record.
Compare that to the final decision that was rendered to determine if the record and the decision are
inconsistent with findings of fact and the ultimate findings of law.
VII. Practice Points
(1)
If you are counsel for your client at the proceedings before the administrative body, build the
record with care. What may be omitted from submissions or hearings at the lower levels, may
not be able to be added in a judicial review.
(2)
While many of the regularly reviewed decision makers have long practice in producing the
record in judicial review, other bodies may be rarely reviewed, and you will have to determine
who was involved in the administrative law decision making process, and therefore who
should produce the record to the court.
(3)
Examine the final decision of the administrative body carefully to determination what
evidence was relied on to make findings of fact, and if that evidence is included in the record.
Also consider if the evidence supports the findings of fact.
(4)
If your judicial review involves want of jurisdiction, or bias or fraud, then consider if you
need to apply to have further and/or extrinsic evidence before the court, as well as the record
that has been produced.
(5)
Know the record. Ability to correct a fact, or a timeline, in the hearing of the judicial review
indicates that you are familiar with the substance of the matter, and may allow you to more
effectively deal with arguments made by counsel for the decision maker, the respondent in the
review. Familiarity with the record will also allow you to identify what may be missing from
the record.
(6)
Make sure that your client is familiar with the materials in the record and has had an
opportunity to respond to them whether or not he availed himself of that opportunity.
(7)
Be familiar with the statute and regulations that cover the decision maker, in order to
determine what documents they normally produce.
(8)
Review previous tribunal and judicial review decisions regarding the decision maker to
determine what documents the court considered.