ADMINISTRATIVE LAW CONFERENCE—2013
PAPER 5.1
Practice and Procedure in Judicial Review
These materials were prepared by Leah Greathead of the Ministry of Justice, Victoria, BC, for the Continuing
Legal Education Society of British Columbia, October 2013.
© Leah Greathead
5.1.1
PRACTICE AND PROCEDURE IN JUDICIAL REVIEW
I.
Introduction .................................................................................................................................1
II.
The Nature of Judicial Review ................................................................................................... 2
III.
Getting Started—Rules and Forms............................................................................................. 3
A. Rule 16-1 and Forms 66 and 67 ................................................................................................................. 3
B. Who Are the Parties—Who Do You Serve? ........................................................................................... 3
C. Which Decisions can be Judicially Reviewed ........................................................................................... 5
IV.
Orders Sought ............................................................................................................................. 6
A. The Orders Available ................................................................................................................................... 6
B. Mandamus ..................................................................................................................................................... 6
C. Prohibition ..................................................................................................................................................... 7
D. Certiorari ........................................................................................................................................................ 7
E. Declaration/Injunction ............................................................................................................................... 7
V.
Factual Basis ............................................................................................................................... 8
A. The Record .................................................................................................................................................... 8
B. Admitting Evidence Regarding an Allegation of a Breach of Natural Justice .................................... 8
C. Extrinsic Evidence when a Jurisdictional Error is Claimed .................................................................. 9
D. The Record and New Issues on Judicial Review ..................................................................................... 9
E. Determining the Record in the Case of Discretionary Decision of Ministers ................................. 10
VI.
Legal Basis ................................................................................................................................. 10
VII.
The Administrative Tribunal’s Act ............................................................................................ 11
A. The Nature of the Administrative Tribunal’s Act ................................................................................. 11
B. Time Requirements .................................................................................................................................... 12
C. Jurisdiction Over Constitutional Questions ........................................................................................... 12
D. Standard of Review .................................................................................................................................... 13
VIII. The Constitutional Question Act ............................................................................................... 13
I.
Introduction
Practice and procedure in judicial review requires an understanding of a number of forms, rules, and statues,
key of which include the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 (the “JRPA”) and the Administrative
Tribunal’s Act, S.B.C. 2004, c.4 5 (the “ATA”). However, more important than the forms, the JRPA and the
ATA is an understanding of the fundamental purpose of judicial review.
Understanding the nature of judicial review is an essential and fundamental element to be considered at every
stage of preparing a petition for judicial review. It is basic to identifying the parties, determining the nature of
the orders sought and the record, drafting of the affidavits in support, and setting out the legal basis of the
5.1.2
petition. It should be incorporated when developing the theory of your case. Forget, ignore or fail to apply
the purpose of judicial review you may be reminded of its fundamental and elementary elements. As
Mr. Justice Meredith in Lawson v. British Columbia (Solicitor General) (1990), 65 D.L.R. (4th) 537 states:
Before examining the orders sought I make reference to several provisions of the Judicial
Review Procedure Act to emphasize that the power of the Court to review is a power to
determine whether a person or body has statutory jurisdiction to make a decision as
opposed to whether the power has been, in the view of the Court, rightly or wrongly
exercised as on an appeal. I make the point, fundamental and elementary as it is, because
much of the argument advanced for the petitioner seems to me to fail to recognize the
difference.
Appeal dismissed but no mention made of this observation (1992), 63 B.C.L.R. (2d) 334
(C.A.)
In this paper, I discuss the forms, rules and legislation that inform practice in judicial review applications as
well as touching on cases that highlight how the purpose of judicial review is relevant at every juncture.
II.
The Nature of Judicial Review
Judicial review in BC is governed by the JRPA. The JRPA, as explained by Madam Justice Southin in British
Columbia (Workers’ Compensation Board) v. British Columbia (Council of Human Rights), [1998] B.C.J. No. 166, is a
“procedural statute which merely simplifies the procedures to be used by an aggrieved citizen to invoke the
ancient power of the Queen’s judges to enforce obedience to the law by public officials and inferior
tribunals.”
The ancient powers of the Queen’s judges to enforce obedience to the law are powers that allow judges to
supervise administrative tribunals for jurisdictional error. On judicial review judges are not to step into the
shoes of the decision maker and re-decide the matter but rather are to limit their role to reviewing the
exercise of statutory power to ensure compliance with the law. On a practical level this means that it is not
the role of the court on judicial review to hold a new hearing, re-weigh the evidence, or review the wisdom of
the decision. The law in this regard was summarized by Madam Justice Wedge in Kinexus Bioinformatics
Corporation v. Asad, 2010 BCSC 33 at paras. 12-14 as follows:
12 In an application for judicial review, the court determines whether relief under the
Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 (“JRPA”) is warranted. The court
assesses, on the applicable standard of review, whether a tribunal has made a reviewable
error justifying the court’s intervention. The court is not permitted to set aside a decision
of a statutory tribunal merely because it would have reached a different conclusion: Re
McInnes and Simon Fraser University (1982), 140 D.L.R. (3d) 694 (B.C.S.C.), aff’d (1983), 3
D.L.R. (4th) 708 (B.C.C.A.).
13 The court on judicial review does not sit as an appellate court. It does not re-try the
matters decided by the tribunal. It is not the court’s role to review the wisdom of the
tribunal’s decision. The court cannot re-weigh the evidence, make findings of credibility or
substitute its view of the merits for that of the tribunal. The court’s role is limited to
determining whether the tribunal has acted, and made its decision, within its statutory
authority or jurisdiction: Ross v. British Columbia (Human Rights Tribunal) (1 May 2009),
Vancouver L042211 (B.C.S.C.); Tse v. British Columbia (Council of Human Rights), [1991]
B.C.J. No. 275 (QL) (S.C.).
14 Further, relief under the JRPA is discretionary. The court must determine whether its
intervention is warranted having regard to the applicable principles, including the principle
of restraint concerning judicial intervention in administrative matters.
5.1.3
III. Getting Started—Rules and Forms
A.
Rule 16-1 and Forms 66 and 67
An application for judicial review must be brought by petition (s. 2(1) of the JRPA). Under Rule 16-1 of the
Supreme Court Civil Rules a person wishing to bring a petition must file a petition in Form 66—“Petition to
the Court.” Those responding to the petition must file a “Response to Petition” as provided for in Form 67.
In order to complete Form 66 the petitioner must identify the parties to be served with the petition, set out
the orders sought, the factual and legal basis of the claim and list the material to be relied upon. In setting out
the legal basis the petitioner must refer to any rule or other enactment relied upon. Responding to petition in
Form 67 requires the respondent to set out those orders that it consents to, opposes and takes no position
on. The respondent must also set out the factual basis, the legal reasons as to why the orders should not be
granted, and must also list the affidavits relied upon.
B.
Who Are the Parties—Who Do You Serve?
Rule 16-1(3) requires that the petition and affidavits filed in support be served on “all persons whose interests
may be affected by the order sought.” This is an open ended requirement but typically includes, at the very
least, all persons who were participants in the proceedings before the Tribunal.
Section 15 of the JRPA requires that notice of an application for judicial review is given to a person
authorized to exercise the statutory power and grants the statutory decision maker “party” status at that
person’s option. While the decision maker is granted “party” status there is case law limiting the role of
tribunal counsel on judicial review from making submissions on the merits of the application (Northwestern
Utilities Ltd. and al. v. Edmonton, [1979] 1 S.C.R. 684). Where there is no other party to argue the other side of
a petition, it is appropriate that the tribunal participate in a more fulsome way to ensure the court has the
benefit of competing arguments (British Columbia Lottery Corp. v. Skelton, 2013 BCSC 12; Timberwolf Log Trading
v. British Columbia, 2011 BCCA 70).
You must also consider how to name the decision maker. In Surrey (City) v. Oil and Gas Commission, 2013
BCSC Mr. Justice Truscott held that it is “an abuse of process for individual decision-makers to be included
in a petition without their consent” (para. 118). In the City of Surrey case, the Oil and Gas Commission as a
whole, not individuals, was responsible for issuing orders under the relevant legislation (para. 120). As such,
the Court decided that it was not proper to name the individuals.
The Attorney General must also be served with notice of the application for judicial review and with notice of
an appeal from a decision of the court with respect to the application (JRPA s. 16). Under s.16 of the JRPA,
the Attorney General is not specifically made a “party” to the application but is “entitled to be heard in
person or by counsel at the hearing of the application or appeal” (JRPA s. 16). The Attorney General reviews
all applications for judicial review served and decides whether it is in the public interest to appear on the
judicial review. One important factor in this decision is whether there are unrepresented interests and
whether the Attorney General could be of assistance to the court.
Serving the Attorney General is not a mere technicality or formality but rather an important step in the
process (Lowe v. Diebolt, 2013 BCSC 1092). Lowe v. Diebolt was an unusual situation where the Police
Complaint Commissioner sought judicial review of a decision of an adjudicator that the Commissioner
himself had appointed under s. 117 of the Police Act, R.S.B.C. 1996, c. 367. Section 117 of the Police Act
allows the Commissioner to appointment a retired judge to review a disciplinary authority’s decision that
there had been no misconduct on the part of a police officer. The adjudicator, in his decision, essentially
agreed with the disciplinary authority and upheld the decision that there had been no police misconduct. The
Police Complaint Commissioner apparently disagreed with the adjudicator’s decision and sought judicial
review but did not initially serve the Attorney General with notice of the application as required by s. 16 of
5.1.4
the JRPA. Justice Meyers noted that serving the Attorney General is not a mere technicality or formality but
rather an important step in the process especially in cases where the decision maker is not represented at the
hearing (Lowe v. Diebolt, 2013 BCSC 1092 at para. 59).
You serve the Attorney General by sending your material by registered mail to the Deputy Attorney General
in Victoria or by leaving a copy, during office hours, with any solicitor on the staff of the Attorney General at
Victoria (Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 8).
Notwithstanding that s. 19 of the JRPA provides that the JRPA is subject to the Crown Proceeding Act, R.S.B.C.
1996, c. 89, you should never name “Her Majesty the Queen” as a respondent to an application for judicial
review. Like with most issues concerning judicial review, determining how to appropriately name the
“crown” in an application for judicial review, is dependent upon understanding the historical and continued
purpose of judicial review. Historically, as explained in Jones and de Villars, Principles of Administrative Law, 4th
ed. (Toronto: Carswell, 2004) “the “prerogative” nature of the remedies derives from the fact that they were
issued by the Crown to control the actions of its servants taken in its name. In time, the Crown delegated
these remedies to the superior courts.”
Madam Justice Southin, when she was on the BC Supreme Court, on more than one occasion, took pains to
educate BC lawyers on the proper way to name the “crown” in applications for judicial review. She did this
by referring lawyers to the basic historical principles underpinning judicial review. In Re Allen and
Superintendent of Motor Vehicles and Attorney General of British Columbia (1986), 2 B.C.L.R. (2d) 255 at 260,
Her Ladyship said:
The petitioner ought not to have added Her Majesty the Queen in right of the Province of
British Columbia as a respondent. I can only assume he thought that s. 7 of the Crown
Proceeding Act, R.S.B.C. 1979, c. 86, applied. It does not.
Here, the petitioner sought two remedies:
(a) A declaration that s. 24.1 is invalid.
(b) A mandamus to order the Superintendent of Motor Vehicles to issue a driver’s licence
or to renew the petitioner’s existing driver’s licence.
As to the first, the proper respondent to a proceeding for a declaration that a statute is
unconstitutional is the Attorney-General.
As to the second, until the Judicial Review Procedure Act was introduced in 1976, proceedings
for mandamus were brought in the name of the Sovereign upon the relation of the citizen.
The Sovereign could not then be both applicant and respondent and cannot be a
respondent now.
In 1987, in McNeice v. British Columbia (1987), 13 B.C.L.R. (2d) 288, Southin J., as she then was, after
discussing the fact that “Her Majesty the Queen in Right of the Province” was not a proper respondent to a
judicial review noted:
This is the third case which I have had before me in which this fundamental question of
the nature of prerogative proceedings has been misunderstood. Not only is it
misunderstood by solicitors for the petitioners but apparently it is misunderstood by the
Attorney General himself who entered an appearance for all the named respondents
without as he ought to have done making a proper objection to the constitution of the
proceedings.
Finally, by 1989, Madam Justice Southin was strongly suggesting remedial law classes for AG counsel who
failed to set the record straight on the naming the crown as a respondent:
In my view, it is the duty of the Attorney General to insist on proceedings under the
Judicial Review Procedure Act, R.S.B.C. 1979 c. 209 being properly constituted. For that reason
and because it appears that many of the Crown’s solicitors do not know what they are about,
5.1.5
I suggest the Attorney General should require all solicitors employed in the Crown’s
service to attend lectures on the Constitution.
Rustad Bros. & Co. v. British Columbia, [1988] B.C.J. No. 96 at 2
In 2000, Mr. Justice Bouck in Lang, opined that the reasoning of Southin, J. was “anachronistic and out of
step with the Crown Proceeding Act.” In his view, “Her Majesty the Queen” was a proper respondent to a
judicial review (Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244 at paras. 18 and 25).
On appeal, the Court of Appeal sided with Southin, J. noting that “in judicial review there is no true lis
between the subject and the Crown” but rather “the issue is the jurisdiction of the tribunal” (Lang at para. 18).
The Court of Appeal explains:
22 The argument that Her Majesty the Queen is the proper party respondent to a judicial
review proceeding proceeds on a fundamental misunderstanding of the origin and nature
of the proceeding. Although put in modern dress, judicial review under the Act remains in
substance the process by which the Sovereign supervises the jurisdiction of a Crown
agency. If the agency acted outside its jurisdiction then the Queen’s Court remits the
matter for proper determination. To name the Sovereign as a party moved against is to
place the Sovereign on both sides of the dispute, which is absurd. This was pointed out by
Southin J., as she then was, in Allen v. British Columbia (Superintendent of Motor Vehicles)
(1986), 2 B.C.L.R. (2d) 255 at 260-61, 27 C.C.C. (3d) 519, 42 M.V.R. 25 (S.C.) (quote from
Allen omitted).
The law is clear—do not name “Her Majesty the Queen” as a respondent to an application for judicial review.
C.
Which Decisions can be Judicially Reviewed
In complex administrative schemes were there are a number of internal decision makers, or where there is the
power to reconsider, such as with the Labour Relations Board or the Employment Standards Tribunal, it may
be necessary to determine which of the internal decisions is subject to judicial review. In United Steelworkers,
Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, Local 2009
v. Auyeung, 2011 BCCA 527 (Auyeung), the Court of Appeal held that judicial review in the Labour Board
context was limited to reconsideration decisions and did not include the original decision. Auyeung has been
applied in relation to the Residential Tenancy Branch (Hudson v. British Columbia (Residential Tenancy Branch),
2012 BCSC 253) and in matters concerning the Worker’s Compensation Appeal Tribunal (Pistell v. Workers’
Compensation Appeal Tribunal, 2012 BCSC 463). Subsequent decisions in the residential tenancy and worker
compensation areas have, however, refused to follow Auyeung (Schaper v. Beauchamp, 2012 BCCA 20; Bennett v.
Wamboldt, 2012 BCSC 125; and Mitchell v. Woerks’ Compensation Appeal Tribunal, 2012 BCSC 986).
In the employment standards context and human rights context the courts have also declined to follow
Auyeung finding that in each case it is vital to examine the legislative framework to determine the level of
decision subject to review (Canwood International Inc. v. Bork, 2012 BCSC 578 at paras. 25 -43 and Routkovskaia
v. British Columbia (Human Rights Tribunal), 2012 BCCA 141). In Routkovskaia, the Court of Appeal states:
[24] The operative administrative law framework in this case is different from that which
was recently considered by this Court in United Steelworkers, Paper and Forestry, Rubber,
Manufacturing, Energy Allied Industrial and Service Workers International Union, Local 2009 v.
Auyeung, 2011 BCCA 527. Relevant differences include that the British Columbia Labour
Relations Board’s jurisdiction to reconsider is broader and is codified in s. 141 of the
Labour Relations Code, R.S.B.C. 1996, c. 244. It is also relevant that seeking reconsideration
by the Board is an internal remedy that generally must be exhausted before applying for
judicial review. As a result, the reasoning in United Steelworkers does not apply to these
judicial review proceedings and the court below was not limited to solely reviewing the
reconsideration decision.
It remains an open question as to whether the courts will continue apply Auyeung to constrain the scope of
the decision subject to judicial review.
5.1.6
IV. Orders Sought
A.
The Orders Available
Part 1 of Form 66 requires that the petitioner set out the orders that he or she is seeking from the court. The
petitioner must also indicate against which respondent the orders are sought.
Section 2 of the JRPA sets out the orders available:
(a)
(b)
B.
relief in the nature of mandamus, prohibition or certiorari; and
a declaration or injunction, or both, in relation to the exercise, or proposed or
purported exercise, of a statutory power.”
Mandamus
An order in the nature of mandamus is used to compel an administrative tribunal to perform a particular act.
For these types of orders to apply the applicant must establish:
(i)
There is a public duty to act and that the duty is owed to the particular applicant.
(ii)
There is a clear right to the performance of that duty. In particular,
a.
the applicant has satisfied all conditions precedent;
b.
a demand was made to the administrative tribunal to perform the act;
c.
a reasonable time to comply with the demand was given;
d.
and the administrative tribunal refused or failed to perform the act.
(iii)
The applicant has no other adequate remedy.
(iv)
The order will be of practical value.
(v)
There is no equitable bar to the relief sought.
(vi)
A balance of convenience favours granting the order.
Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, aff’d [1994], 3 S.C.R. 1100
Mandamus, like all of the prerogative remedies, recognizes that it is the statutory decision maker that must
determine the wisdom of acting or not acting. It is only when the enabling legislation requires action that
mandamus will lie.
An order in the nature of mandamus is relatively difficult to obtain. For example, in Meyer Franks Agencies Ltd.
v. Vancouver (City), 2010 BCSC 1637, the applicant sought an order in the nature of mandamus against the City
of Vancouver to enforce a street and traffic bylaw and against the province to enforce the Safe Streets Act. The
petitioner owned commercial property near a location in which individuals seeking short term employment
gathered. He contended that the several businesses and their workers were intimidated by the people
gathering for the labour exchange. The Court refused to issue an order in the nature of mandamus
concluding, in relation to the City of Vancouver, that “the question of whether, when and how the City will
enforce its Street and Traffic by-law must be left to the elected members of city council and the public officials
under their supervision” (para. 19). Likewise with the province, the Court found that no duty was owed to
the applicant. As noted by Mr. Justice Smith, “there is nothing in the Police Act that authorizes, much less
requires, the Minister to override the authority of the board and the chief constable and to order specific
investigations or operations by the Vancouver Police Department.”
5.1.7
C.
Prohibition
An order in the nature of prohibition is used to stop or prohibit a tribunal from “embarking or continuing
upon a procedure for which it has no jurisdiction or to prevent it form making an intra-jurisidictional error of
law” (Jones and De Villars, Principles of Administrative Law (2d) [1994] (Scarborough, Ont.: Carswell).
An example where an order in the nature of prohibition was successfully sought is Picha v. Lee Inquest (Coroner
of), 2008 BCSC 818, aff’d 2009 BCCA 336. In Picha, the applicants, two Crown counsel (Ms. Picha and Ms.
Ford) and the Criminal Justice Branch of the then Ministry of Attorney General, applied for an order in the
nature of prohibition prohibiting a coroner from requiring Ms. Picha and Ms. Ford to attend and give
evidence at the inquest. The coroner had subpoenaed the two Crown counsel to testify at a coroner’s inquest
concerning the death of five people. Mr. Lee was suspected of killing his estranged wife, son, her parents and
ultimately himself. Prior to the killings, Mr. Lee had been charged with unlawfully causing bodily harm and
dangerous driving causing bodily harm in relation to an incident where he drove his car into a hydro pole
during an argument with his estranged wife. Ms. Picha was the Crown counsel who charged Mr. Lee with
these offences. Ms. Picha, and co-counsel Ms. Ford, agreed to consent release arrangements with Mr. Lee’s
counsel. While the coroner had general subpoena powers, the BC Court of Appeal confirmed that the
subpoenas should be quashed as requiring the crown counsel to attend at the inquest would improperly
interfere with prosecutorial independence.
D.
Certiorari
An order in the nature of certiorari is used to quash the decision of an administrative tribunal. In keeping
with the role of the court on judicial review it is to be used when the administrative tribunal has exceeded its
jurisdiction. This is the most common type of order sought pursuant to the JRPA.
There are many examples from the BC Supreme Court, in the last few months alone, where a petitioner has
sought to quash a decision of an administrative tribunal in a judicial review proceeding. See, for example,
Zucchialti v. the College of Denatal Surgeons of British Columbia, 2013 BCSC 1736; Robertson v. British Columbia
(Teachers Act Commissioner), 2013 BCSC 1699; Longstaff v. British Columbia (Superintendent of Motor Vehicles), 2013
BCSC 1594; and Quinco Financial Inc. v. British Columbia, 2013 BCSC 1549.
E.
Declaration/Injunction
Under s. 2 of the JRPA the court may grant a declaration or injunction in relation to the exercise, refusal to
exercise, or proposed or purported exercise, of a statutory power. Declarations are used to state legal rights,
duties, status or position (Donald, J. M. Brown, QC and Evans, Judicial Review of Administrative Action in
Canada, [2012] (Toronto Ontario: Canvasback Publishing) at 1-72).
A declaration will not be available if prohibited by statute (Shuswap Lake Utilities Ltd. v British Columbia
(Comptroller of Water Rights), 2008 BCCA 176 at para. 48). If declaratory relief is available, the granting of the
declaration is within the complete discretion of the court (Shuswap Lake Utilities Ltd., at para. 49). An
important factor in exercising discretion on whether to grant a declaration is whether there is an adequate
alternate remedy. Generally if a statute provides for a specific remedy it is presumed that that the legislature
intends that is prescribed remedy and no other will be pursued (Shuswap, at para. 52). In Shuswap, the Court
of Appeal confirmed that it was an abuse of the court’s process for the plaintiff to seek declaratory relief in
circumstances where the he did not avail himself of a statutory appeal. This appeal existed within a
comprehensive legislative scheme, and was more expeditious and less expensive then commencing an action
for declaratory relief. The Court of Appeal also confirmed that the declaratory relief ought to have been
sought under the JRPA not as an action (Shuswap Lake Utilities Ltd., at para. 47).
5.1.8
V.
A.
Factual Basis
The Record
Part 2 of Form 66 requires the petitioner to set out the factual basis on which the petition is based. Form 67
also allows the respondent to set out his or her version of the facts. The facts noted on Form 66 or 67 must
be supported by affidavit evidence. Both the petitioner and the respondent must list in Form 66 or 67 all of
the affidavits to be relied upon at the hearing of the petition for judicial review.
The affidavits/facts must not include legal argument, or opinions on how the decision should have been
made. Evidence that seeks to show that the Minister did not have the facts before him is not admissible
(Friends of Cypress Provincial Park Society v. British Columbia (Minister of Environment, Lands and Parks), 2000 BCSC
466 (Cypress) at para. 5).
In deciding what to cover in your affidavits and in the fact section of Form 66 it is important to remember that
generally judicial review takes place on the “record” of the proceedings before the statutory decision maker.
This is in-keeping with the principle that the the role of the court on judicial review is not to decide the matter
afresh or to re-wiegh the evidence but to review the decision on the tribunal’s record of proceedings.
The “record” is defined in s. 1 of the JRPA as:
“record of the proceeding” includes the following:
(a) a document by which the proceeding is commenced;
(b) a notice of a hearing in the proceeding;
(c) an intermediate order made by the tribunal;
(d) 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 the purpose for which a document may be used in evidence in a
proceeding;
(e) a transcript, if any, of the oral evidence given at a hearing;
(f) the decision of the tribunal and any reasons given by it;
The general rule is that a court on judicial review is not to admit evidence beyond the record of proceedings
as defined in the JRPA. While the court has the power to admit extrinsic evidence beyond what was in the
record, this power should “be exercised sparingly, and only in an exceptional case” (Kinexus Bioformatics Corp.
v. Asad, 2010 BCSC 33 at para 17). Extrinsic evidence may be admitted to demonstrate a breach of natural
justice, lack of jurisdiction, or, “in rare circumstances, to show that a tribunal made a factual finding incapable
of being supported by the evidence” (Kinexus Bioformatics Corp, at para. 17). In all cases the extrinsic evidence
must be both relevant and necessary to prove the allegation.
B.
Admitting Evidence Regarding an Allegation of a Breach of Natural Justice
In determining whether or not to admit “extra-record” evidence the court should consider the purpose of
judicial review. For example, in Kinexus, Justice Wedge, after setting out the purpose of judicial review was
careful to exclude evidence that “invited the court to re-hear and re-weigh the evidence in order to arrive at
its own conclusion as to the merits of the case” but did admit affidavit evidence that went to whether the
Tribunal had acted unfairly or in a biased manner (Kinexus Bioformatics Corp, at paras. 131-32).
Another example of where extra-record evidence was admitted is the case of Brouwer v. B.C. (Minister of Energy,
Mines and Petroleum Resources), 2000 BCSC 1743 at paras. 49, 91 where the Court admitted a newspaper article
quoting the decision maker. The reasoning for admitting this newspaper article was because it related to the
decision maker’s “state of mind prior to making the determination.” The petitioner in Brouwer alleged a
breach of procedural fairness; namely that the decision maker was biased in that he was said to have
prejudged the issue. While Justice Drossos admitted the newspaper he ultimately did not accept the
petitioner’s interpretation of the article:
5.1.9
[…] While I am willing to admit this as evidence that was not part of the original record on
the basis of Chamberlain and St. Anne’s Academy, I am not prepared to infer the meaning
that the petitioners have proposed. To the contrary, I believe Beresford’s comments to be
related to the issue of the zoning requirements. His comments were likely a
misapprehension of the law at that time, that is, his belief that the Bylaw 1776 would
govern. It is likely that only later did Beresford realize that the Mines Act took precedent.
(Brouwer, supra, at para. 91)
C.
Extrinsic Evidence when a Jurisdictional Error is Claimed
While extrinsic evidence related to a lack of jurisdiction may be admissible on judicial review, it is not
sufficient to simply assert a jurisdictional error. This is probably even more so in the post-Dunsmuir world
where the courts have taken a very restrictive view of a “jurisdictional” error (Dunsmuir v. New Brunswick, 2008
SCC 9 and Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61).
For the evidence to be admissible, under this exception, it must “be necessary to prove the existence of a
jurisdictional error.” If that error can be otherwise proven (i.e., from the filed record, or legislation), then the
extrinsic evidence is not necessary, nor is it admissible (AOV Adults Only Video Ltd. v. Manitoba (Labour Board),
2003 MBCA 81 at paras. 34, 39; Telus Communications Co. v. Telecommunications Workers Union, 2009 BCSC 1289
at paras. 30-34; Society of Friends of Strathcona Park v. British Columbia (Environment), 2013 BCSC 1105 at paras. 96
and 104). In Friends of Strathcona Park, while the Court admitted extra-record evidence for the limited purpose
of background information that assisted the court, affidavit evidence that contained argument, opinion, or
additional facts not before the decision maker was specifically excluded (Friends of Strathcona Park, at para. 106).
Further, the Court specifically excluded extra-record evidence on the jurisdictional argument:
104 To the extent that the petitioner makes a jurisdictional argument, as it does, that
argument is available from the record; the affidavits that are objected to are not necessary
for that purpose and are not admissible. I was able to receive full argument from counsel
on the merits of the decision, including his argument that correctness was the appropriate
standard because of an alleged jurisdictional error, without reference to extrinsic evidence.
D.
The Record and New Issues on Judicial Review
You should endeavor to raise all issues, including statutory interpretation issues and, for those tribunals that
have jurisdiction to consider constitutional issues, all constitutional issues, before the administrative tribunal
at first instance. If you do not, you may very find yourself unable to raise the issues for the first time on
judicial review. Further, you will also likely find yourself unable to add evidence to the “record” even perhaps
for “jurisdictional” questions.
In Johnson v. British Columbia (Workers’ Compensation Board), 2011 BCCA 255, the Court of Appeal examined
whether the petitioner “ought to have been permitted to include in an application for judicial review […] a
ground that he had not raised nor argued before the […], the administrative tribunal whose order he sought
to set aside on review.” On judicial review, the chambers judge allowed the petitioner to raise a new issue.
On appeal, the Court held that the “record required a proper review” on the issue and that any attempt to
create a record on the new ground on judicial review “could not be a substitute for the reasons” of the
administrative tribunal (Johnson, at para. 51).
In Silver Campsites Ltd. v. Pulham, 2011 BCCA 352, the Court of Appeal applied Johnson and held that it was
inappropriate for a court of judicial review to hear statutory interpretation argument not raised before an
administrative tribunal protected by a privative clause. Frankel J.A. notes:
32 As recently discussed in Johnson v. British Columbia (Workers' Compensation Board), 2011
BCCA 255 at paras. 42-52, it is not appropriate on an application to judicially review a
decision by an expert tribunal protected by a privative clause, to engage in a statutory
interpretation issue relating to the tribunal’s enabling act that the tribunal was never asked
to consider. The absence of a decision on the point makes the record, as it relates to the
5.1.10
statutory interpretation issue, incomplete. That is the situation in the case at bar.
Accordingly, I would not allow Silver Campsites to advance its statutory interpretation
argument.
See also: Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union of
Canada, Local 2000, 2011 BCCA 373; and Canwood International Inc. Bork, 2012 BCSC 578
Even in matters where constitutional issues are raised, judicial review should take place on the “record”
before the tribunal. In Actton Transport Ltd. v. British Columbia (Director of Employment Standards), 2010 BCCA
272, the Court of Appeal notes:
23 While the Tribunal had to be correct in deciding the division of powers question,
normally its decision would be reviewed on the record before it. The reviewing court
usurps the role of the tribunal when it embarks upon a de novo hearing. The procedure
adopted here was wrong and should not be repeated.
Further, in Canwood International Inc. v. Bork, 2012 BCSC 578, the Court refused to admit affidavit evidence
that went to a constitutional argument not raised before the Employment Standards Tribunal.
E.
Determining the Record in the Case of Discretionary Decision of Ministers
It is easier to determine the “record” in the case of a decision concerning an adjudicative tribunal than in the
case of a decision concerning ministerial discretion. With adjudicative decision makers the definition of a
“record” from the JRPA applies with ease. For example, there is typically: i) a document by which the
proceeding is commenced; ii) a notice of a hearing; iii) documents produced in evidence at the hearing; and
iv) the decision of the tribunal and any reasons given by it. Further there may be an intermediate order made
by the tribunal and a transcript of the oral evidence at the hearing. The same is not so with respect to
discretionary decision of ministers.
Non-adjudicative decisions are less clearly defined. A number of statutes provide Ministers with discretion to
make wide ranging decisions. For example, under the Park Act, R.S.B.C. 1996, c. 344, the Minister of
Environment has the discretion to issue park use permits to allow for various activities or works in provincial
parks. These decisions are subject to judicial review (see, for example, Cypress and Friends of Strathcona Park).
In exercising the discretion to issue a park use permit the Minister (or delegate) does not typically hold a
“hearing” and as such, determining the “record” can be difficult.
In Waverley (Village) v. Nova Soctia (Minister of Municipal Affairs), [1994] N.S.J. No. 84, the Nova Scotia Court of
Appeal dealt with the distinction between adjudicative and administrative decisions in regards to the record
and found that in the case of discretionary ministerial decision the record could only be created by analogy.
The Nova Scotia Court of Appeal recognized that their legislative definition of “record” has little direct
applicability to the discretionary decision of a minister. As noted by the Court there is little in a discretionary
decision that approximates “the judgment, order warrant, decision or reasons for judgment, together with the
process commencing the proceeding, the evidence and all exhibits filed, if any, an all other things in the
proceeding.” The same is so in BC with our definition of “record” in the JRPA. In the case of discretionary
decisions the record is largely created by analogy (see, for example, Cypress and Friends of Strathcona Park).
VI. Legal Basis
Forms 66 and 67 require you to identify any rule or enactment that you intend to rely upon and that you
summarize the legal basis of your petition or response to petition. Like with all legal drafting, it is important
in setting out the legal basis of the petition, or response to petition, to be clear and as concise as possible. In
Surrey (City) v. Oil and Gas Commission, 2013 BCSC Mr. Justice Truscott stuck a petition on the basis, that
amongst other things, it was an “ an abuse of process as being so wordy and confusing as well as
contradictory that it is difficult to understand just what allegations the Court is to deal with.”
5.1.11
In setting out the legal basis you must include the grounds of judicial review (see s. 14 of the JRPA and
Saanich Inlet Preservation Society v. Cowichan Valley (Regional District), [1983] B.C.J. No. 873). A petition for
judicial review that does not set out the grounds is deficient, and if challenged, the petitioner may either be
required to amend the petition to plead the grounds or risk having the petition dismissed (Saanich Inlet
Preservation Society, at para. 6).
The grounds typically include such things as errors of law or jurisdiction and procedural matters such as
breaches of natural justice. It is helpful both for the development of your own case and the ability of the
respondent to respond to your petition to be as clear as possible in articulating the grounds of review.
There is, however, a difference between “grounds” and “particulars.” When the Attorney General applied to
have the petition of the Provincial Court Judges’ Association (“PCJA”) struck on the basis that it did not
conform with s. 14 of the JRPA, the court distinguished Saanich Inlet and other similar cases on the basis that
“no” grounds were listed in those cases. The Court in the PCJA matter found that what the Attorney
General was really seeking was the “argument” of the petitioner and that the petition, together with a letter
from counsel for the PCJA, provided sufficient grounds to meet s. 14 of the JRPA (Provincial Court Judges’
Association of British Columbia v. British Columbia (Attorney General), 2013 BCSC 1302 at paras. 26-7.
VII. The Administrative Tribunal’s Act
A.
The Nature of the Administrative Tribunal’s Act
In preparing Form 66 or Form 67 you must also consider the Administrative Tribunal’s Act, S.B.C. 2004, c.4 5 (the
“ATA”). The ATA is a comprehensive statute that consists of a menu of different potential powers of
tribunals. It covers a host of topics including: dispute resolution processes, appointment of tribunal members,
notice, service of documents, the content of appeal documents, time limits, and standards of review.
The ATA is not a stand-alone statute but rather only operates in conjunction with the tribunal’s enabling
legislation (see the definition of “tribunal” in the ATA). You must carefully review the enabling legislation of
the tribunal in issue to determine whether the ATA applies in the circumstances and, if so, which sections of
that statute apply. Note in particular that some of the provisions in the ATA are alternatives for which only
one of the sections will apply to the tribunal.
For example, the Teachers Act, S.B.C. 2011, c. 19 is the enabling legislation for the Commissioner appointed
under that Act and panel appointed by the Commissioner. Section 41 of the Teacher’s Act is reproduced below:
Application of Administrative Tribunals Act
41(1) The following sections of the Administrative Tribunals Act, S.B.C. 2004, c. 45, apply to
the commissioner and panels:
(a) section 44 [tribunal without jurisdiction over constitutional questions];
(b) section 46.3 [tribunal without jurisdiction to apply the Human Rights Code];
(c) section 48 [maintenance of order at hearings];
section 49 [contempt proceeding for uncooperative witness or other person];
(e) section 55 [compulsion protection];
(f) section 61 [application of the Freedom of Information and Protection of Privacy Act].
(2) The following sections of the Administrative Tribunals Act apply to the director of
certification, the commissioner and panel members:
(a) section 55 [compulsion protection];
(b) section 56 [immunity protection for tribunal and members];
(c) section 61 [application of the Freedom of Information and Protection of Privacy Act].
(3) The following sections of the Administrative Tribunals Act apply to decisions of the
commissioner and of a panel:
(a) section 57 [time limit for judicial review];
(b) section 58 [standard of review if tribunal's enabling Act has privative clause].
5.1.12
Section 41 of the Teacher’s Act makes different sections of the ATA apply to different statutory actors under
that legislation. Some of the subject areas covered by section 41 include time limits, the jurisdiction of the
tribunal over constitutional questions and standard of review.
B.
Time Requirements
The ATA and the JRPA are different in relation to when a petition for judicial review must be filed. Under
s. 57(1) of the ATA, there is for the first time, a time limit imposed for judicial review.
Time limit for judicial review
57(1) Unless this Act or the tribunal’s enabling Act provides otherwise, an application for
judicial review of a final decision of the tribunal must be commenced within 60 days of the
date the decision is issued.
The court may relieve against the 60 day time limit “if it is satisfied that there are serious grounds for relief,
there is a reasonable explanation for the delay and no substantial prejudice or hardship will result to a person
affected by the delay” ATA, s. 57(2). However, it always best to file your petition on time and not be forced
into the position of having to explain the delay.
The JRPA, on the other hand, does not have any time limit for the filing of a petition for judicial review:
No time limit for applications
11 An application for judicial review is not barred by passage of time unless
(a) an enactment otherwise provides, and
(b) the court considers that substantial prejudice or hardship will result to any
other person affected by reason of delay.
C.
Jurisdiction Over Constitutional Questions
Sections 43 to 45 of the ATA provide alternative provisions regarding the jurisdiction of the tribunal over
constitutional matters. Section 43 provides for full constitutional jurisdiction whereas s. 44 provides for no
jurisdiction over constitutional questions. Section 45 provides for partial constitutional jurisdiction; tribunals
that fall within this section have jurisdiction over issues of federalism but not Charter questions. For those
tribunals that have full or partial jurisdiction over constitutional questions (ss. 43 or 45), the tribunal may
refer the question to the court by way of a stated case (ss. 43(2) and 45(2)(a)) and must refer the question to
the court at the request of the Attorney General (ss. 43(3) and 45(2)(b)). I am not aware of any instance in
which the Attorney General has required a stated case.
If a stated case is used it must be prepared by the tribunal and must include a statement of facts and relevant
evidence (ss. 43(4) and 45 (3)). Both ss. 43 and 45 deal with the on-going work of the tribunal in light of the
stated case and provide that “to the extent that it is practicable in light of the stated case” the tribunal is to
“proceed to hear and decide all questions except the questions raised in the stated case” (ss. 43(5)(a) and
45(4)(a)). The Tribunal must reserve its decision until the opinion of the court has been given (ss. 43(5)(b)
and 45(4)(b).
The vast majority of tribunals to which the ATA applies have no jurisdiction over constitutional questions.
A panel appointed by the Commissioner under the Teacher’s Act is one example (see s. 41(1)(a) of the Teacher’s
Act). Tribunals that are given jurisdiction over federalism questions only include the BC Human Rights
Tribunal and the Employment Standards Tribunal. Only two tribunals that I am aware of are given full
constitutional jurisdiction: the Labour Relations Board and the Securities Commission. Further, given the
definition of “constitutional question” in the ATA and in the Constitutional Question Act, R.S.B.C. 1996, c. 68
(the “CQA”), tribunals with no jurisdiction over constitutional questions, also have no jurisdiction to consider
the vires of a regulation as a matter of statutory interpretation. So while tribunals, under the common law are
to be paid deference in interpreting their home statute, the same is not so in regards to an ATA tribunal
without jurisdiction to consider constitutional questions, when what is at issue is the interpretation of the
home statue in relation to the vires of its subordinate legislation.
5.1.13
In cases where the tribunal has jurisdiction over the constitutional question, a party raising a constitutional
question must provide notice to the Attorney General in accordance with s. 8 of the CQA.
D.
Standard of Review
Sections 58 and 59 of the ATA deal with standard of review. Section 58 is a highly deferential standard,
whereas s. 59 is not. Generally one need not look any further than the enabling legislation of the tribunal to
determine the requisite standard of review. For example, as noted above, s. 41(3)(b) of the Teacher’s Act
provides that s. 58 of the ATA applies to decisions of a panel constituted under that legislation. Despite the
clear wording of s. 41(3)(b) of the Teacher’s Act, the Court in Robertson v. British Columbia (Teachers Act,
Commissioner), 2013 BCSC 1699 found that s. 58 of the ATA did not apply to a decision of a panel appointed
under the Teacher’s Act. Instead, the Court held that the standard of review was to be determined by the
common law. The Court found that the privative clause in the Teacher’s Act did not meet the definition of
“privative clause” in the ATA because the clause did not provide for exclusive jurisdiction. A privative clause
for the purposes of the ATA is one the provided not only for the finality of the decision but also for
exclusive jurisdiction within the tribunal.
VIII. The Constitutional Question Act
In addition, if in your petition for judicial review the constitutional validity or constitutional applicability of
any law is challenged, an application is made for a “constitutional remedy,” or the validity or application of a
regulation is challenged then you must serve the Attorney General in accordance with s. 8 of the CQA. In
providing this notice you must “give the particulars necessary to show the point to be argued” (s. 8 of the
CQA). A “constitutional remedy” is defined in the CQA as “a remedy under section 24(1) of the Canadian
Charter of Rights and Freedoms other than a remedy consisting of the exclusion of evidence or consequential on
such exclusion.”
This notice must be served at least 14 days before the day of argument unless the court authorizes a shorter
notice (CQA s. 8(5)). If you are raising a complicated constitutional argument, you would be well served,
however, to give more than 14 days notice. On complicated matters it is impossible for counsel for
Attorney General to be prepared in 14 days. In any matter to which s. 8 applies, the Attorney General is a
“party” (CQA s. 8(6)).
In circumstances where notice is required under the CQA, it is essential that you that notice is given, as
decision rendered without notice may be found to be a nullity (Eaton v. Brant Board of Education, [1997] 1
S.C.R. 241 and Saskatchewan Government Insurance v. Gorguis, [2013] SKCA 32).