Judicial Review

Judicial Review is:

  • Review of an administrative decision by the courts
  • Reviews the process of the decision
  • It’s a narrow power of the court
  • Court reviews the entire decision- making process, including the findings of fact and of law

BUT

  • Court does not concern itself with the wisdom of the arbitrator/adjudicator/decision maker’s decision.
  • Court does not “re-hear” or “re- try” the case on its merits.
  • It is said a tribunal has “a right to be wrong” – but not about the law, and as long as not too wrong…

Concerns of Court

  • Did the tribunal, arbitrator or labour board properly exercise its authority ? e.g. – did it exceed its jurisdiction under the statute or collective agreement?
  • Was the decision [patently] unreasonable ?
  • Was it correct in law? (under statute, common law)
  • was there procedural fairness?

A JR Is Not An Appeal

  • An appeal is a review of a case on its merits – merits concern the issues of the case – the heart of the dispute
  • Merits include assessing the facts and the arguments in favour or against the parties
  • Appeals are NOT about the decision making process – while Judicial Reviews ARE

How Does Judicial Review Work?

  • Either Party can apply for judicial review
  • It’s in the form of a Court Application – before BC Supreme Court (‘Petition’) or Federal Court
  • Sets out alleged grounds and desired remedy
  • Timelines set in statute – usually must make application within 30 days
  • Usual remedy is to send it back to the tribunal or arbitrator for a re-hearing.

Judicial Review - Procedural Steps[click on image to enlarge]

New Evidence/New Issues

  • No New Evidence can be introduced.
  • No New Issues can be introduced.

*It’s NOT a Re-hearing of the case!*

  • Courts will not impose their decision over that of the decision maker/arbitrator unless there is a reviewable error – an unreasonable decision or a decision incorrect in law [depending on the standard of review].

Standard of Review

The Judicial Review Procedure Act sets out the procedural requirements, and the Administrative Tribunals Act sets out the time limit (section 57) unless the enabling legislation specifies otherwise, and the standard of review, depending on whether the tribunal’s enabling legislation has a privative clause (section 58) or does not have a privative clause (section 59).

Guide and Forms

Community Legal Assistance Society has prepare a Guide to Judicial Review, and examples of the various forms required.  See the CLAS webpage Judicial Review Guides. 

The Supreme Court also has a Judicial Review Guidebook that is an overview of the procedures.  Two other relevant guidebooks are: