lgst 2220 week 12 judicial review

administrative decision-makers must:

• obtain sufficient relevant and reliable evidence to make a fair determination on the issues

• apply the law

• uphold participant’s charter rights

• complete any required consulations

tribunal decisions

trinbunal members can issue their decision orally at the end of the hearing

tribunals can apply any legal authorities:

statutes and judicial decisions are declaratory

what are sufficient reasons?

• not every piece of evidence or argument

• enough so that the persons lnows why the decision was made

• enough to provide a basis for judicial review

ombudsperson

take complaints about administrative decisions and review individual cases

reconsideration

internal procedure, established by statute, in which the tribunal reconsiders its decision

reopening

a tribunal may reopen a hearing or claim that it has already decided

rehearing

a tribunal may decide to rehear a case that is has already decided

judicial review

the individual applies to the court for leave to review a decision made by the government

common grounds for review

• decision maker acted outsode its jurisdiction, not authorized by statute

• improper delegation

• failed to consider important facts or issies when exercising its discretion

• misinterpreted the applicable law

• acted improperly or unfair

who cna ask for a judicial review

• the right to judicial review is in the statute

• the parties to the matter have standing

upon judicial review, the court will consider:

• whether the decision maker or tribunal acted within its juristiction had the power to make the decision according to the statute and regulations

• whether it exercised its discretion in a reasonable manner

• whether its procedures were in accordance with the principles of justice and fairness

correctness

aks whether the decision can be set aside because it was not the correct decision

• applies to questions of law of general importance eg. jurisdiction, consitutition

reasonableness

asks whether the decision can be set aside because it was unreasonable

• applies to all other questions

the normal standard of judicial review is not whether the decision was correct

but whether it was reasonable and fundamentally fair:

• was the hearing fair?

• was all of the relevant evidence considered?

• was the process transparent?

• were reasons given for the decisions?

standard of review

• made fairly

• in accordance with the principles of justice

• reasonable

reasoanableness and deference

• tribunals, agencies and other decision makers have good expertise

• they are the trier of fsct and view all evidence

• had the opportunity to judge the credibility of witnesses

dunsmuir v. newbrunswick, 2008 scc correctness

the original decision maker is given little defence - the reviewing court will look at the question anew and come to their own decision

dunsmuir v. newbrunswick, 2008 reasonableness

there may be a number of lawful, acceptable conclusions to draw. the decision is entitled to choose among these

judicial review factors: the expertise of the agency or tribunal

• does the work of the tribunal or agency involve specialized knowledge?

• are decision makers hgihly experieced in a given issue?

• is the issue complex, requires experience?

• does the tribunal hear oral first person testimony?

judicial review factors: purpose of the statute or tribunal

• what is at stake - in terms of rights or consequences, if the decision is incorrect or unreasonable?

• the more serious is the right for those affected, the less defence will be granted to the decision maker

• the more fundamental or charter rights are engaged, the less deference will be granted to the decision maker

judicial review factors: the nature of the question

• is it a quesiton of fact?

• the tribunals interpretation of the facts is likely correct

• reviewing courts rarely overturn findings of fact

standard of proof pyramind

1. suspicion: suspicion based on objective grounds, little reliable evidence

2. probable: more than suspicion, based on reliable, objective evidence, used for warrants

3. reasonable grounds: balance of probabilities, greater than 50%, used in civil cases and administrative tribunals

4. certain: highest standard of proof

judicial review factors: more defence, less likely to overturn

• issues are less serious

• consequences are less grave eg. commercial interests vs fundamental rights

• involves facts, credibility

• hearing was oral

• tribunal is specialized

judicial review factors: lower defence, more likely to overturn

• issues are weighty

• consequences are grave

• involves fundamental rights

• involves quesitons of law, not fact

• decision maker does not have specialized expertis

a reviewing court can:

• uphold the original decision

• send the mattter back to the decision maker for a new decision

dr. q. v. collect of physicians and surgeons of bc, 2003 scc facts

• patient t went to dr q for treatment for depression and anxiety but their relationship became sexual after a few months

• t complained to the college claiming that dr q was taking advantage of her when she was vulnerable and dr q is abusive

• the college held a hearing. dr q denied the allegations, claiming they never hada relaitonship

• the college suspended dr q for 18 months and he appleaed to the bcsc

• the reviewing judge found patient t to not be credible. she overturned the college’s decision and reinstate dr q’s license

dr. q. v. collect of physicians and surgeons of bc, 2003 scc issues

what is the correct standard of review?

what is the correct standard of proof?

what is the correct remedy to apply in this case?