Administrative Tribunals

Administrative tribunals are specialised governmental agencies established under federal or

provincial legislation to implement legislative policy. Some public boards and public decision
makers also have had powers of decision making conferred upon them by statute. Such powers
of decision making are conferred upon administrative tribunals, boards or other decision makers
in order to provide a more expeditious, less formal and sometimes less expensive method (than
the courts) for resolving certain types of disputes or issues. Administrative tribunals also provide
a forum in which complex issues can be decided by adjudicators with expertise in the particular
field.

While most tribunals are required (by common law or statute) to follow some basic rules of
procedure, there is no specific set of rules that applies universally. The procedure to be followed
by a tribunal may be found in the enabling statute or related regulation and in rules, guidelines,
or directives formulated by the tribunal. Procedures may also be set out in a notice issued for a
particular proceeding or they may be a matter of unwritten tribunal policy or practice.1 Ontario,
for instance, has enacted a minimum code of procedure in the Statutory Powers Procedure Act,2
which some tribunals are required to follow.

The fact that no procedural rules are prescribed does not free a tribunal, board, officer or public
decision maker from all procedural constraints. When statutory decision makers perform a
judicial or quasi-judicial decision making function, they are governed by common law
procedural principles. The standard of procedural fairness to which a party before an
administrative agency may be entitled will vary with the context.

In some cases, the seriousness of the potential impact of a decision on a party will require almost
court-like procedures. In such cases, it is often said that the party to the administrative
proceeding in question will be entitled to a decision in accordance with the principles of natural
justice.

Natural Justice

The principles of natural justice include the right to be heard, and the right to an impartial
decision maker. A party who has a right to be heard is entitled to sufficient prior notice of the
proceeding so that the party has the opportunity to prepare his or her case, attend before a
decision maker and make representations. The right to proper notice also includes the right to
know the case that must be met; in other words, proper notice will include providing details of
the case to the responding party.

An impartial decision-maker is one who is free of a reasonable apprehension of bias, whether

personally or institutionally. Reasonable apprehension of personal bias might result when, for
instance, a decision maker has a pecuniary interest in the outcome of the proceeding, or a prior
relationship with one of the parties.

Fairness

In some cases, the governing legislation will contemplate a very informal kind of decision. In
such circumstances, particularly where the impact of a decision may be relatively minor, a party
to an administrative proceeding may not be entitled to full natural justice. Even where this is the
case, however, courts can assess the procedural adequacy of decisions made by tribunals, boards
or public officials based on the doctrine of fairness.

At minimum, the doctrine of fairness requires that before a decision adverse to a persons
interests is made, that person should be told the case that they have to meet and should be given
an opportunity to respond. This ensures that the person to be affected by the decision is given an
opportunity to influence the decision. Additionally, the information received from that person
should assist the decision maker in arriving at a rational and informed decision.3

Examples

Examples of administrative tribunals, boards and public decision makers in Ontario include:

Agriculture and Food Appeal Tribunal

Assessment Review Board

Consent and Capacity Board

Criminal Injuries Compensation Board

Ontario Energy Board

Environmental Review Tribunal

Ontario Film Review Board

Health Services Appeal and Review Board

Ontario Human Rights Commission

Information and Privacy Commissioner

Ontario Labour Relations Board

Landlord and Tenant Board

Licence Appeal Tribunal

Liquor Control Board of Ontario

Ontario Municipal Board Financial Services Tribunal

Ontario Review Board

Workplace Safety and Insurance Appeals

Tribunal

Judicial Review

Courts have supervisory jurisdiction over the actions of public tribunals, boards, officers and
public decision makers. In some circumstances, parties who have been affected by decisions of
tribunals, boards or other public decision makers may bring an application in court to have the
administrative decision reviewed by the court. This is called judicial review. There are two broad
categories of judicial review: procedural judicial review and substantive judicial review.
Procedural judicial review involves an allegation that an impugned administrative decision was
reached in a manner not in compliance with procedural fairness (i.e. there was a denial of natural
justice, or the decision was otherwise procedurally unfair). Substantive judicial review
challenges the decision itself, either on the basis that the decision-maker in question did not have
the power to make the decision he or she purported to make (i.e. acted outside his or her
jurisdiction); or on the basis that the decision was either incorrect or unreasonable.

Judicial review can be pursued provincially before the Divisional Court (a special branch of the
Superior Court of Justice) or federally before the Federal Court. The Federal Court may review
any authority that exercises powers conferred upon them by a federal statute or order.4 The
review of federal administrative action is governed by the Federal Court Act5 and the Federal
Court Rules.6

The Divisional Court has jurisdiction to review decisions of bodies exercising statutory powers
of decision conferred upon them by provincial statute. Judicial review in Ontario is governed by
the Judicial Review Procedures Act7 and the Rules of Civil Procedure.8

Availability of Judicial Review

The courts supervisory jurisdiction over administrative tribunals is inherent in any system
governed by the rule of law. Neither Parliament nor the provincial legislatures have the power to
exclude the right to judicial review, since citizens are always entitled to a courts ruling as to
whether administrative power has been exercised in accordance with all applicable legal
principles.9

Therefore, the right to judicial review need not be set out in a statute. The right to judicial review
is, however, discretionary. There are circumstances in which courts will refuse to exercise their
discretion. Some examples of such circumstances include: where there has been unreasonable
delay in initiating judicial review;10 where the issues raised are hypothetical, moot or are not
justiciable (appropriate for court review); and where alternative remedies, such as the right of
appeal or reconsideration have not been exhausted.11

Judicial review is not the same as an appeal. In Ontario, the court is not statutorily precluded
from conducting judicial review even if there is a right of appeal. Similarly, the court is not
precluded from reviewing issues that have already been the grounds of an appeal. Conversely,
the Federal Court Act bars judicial review by the Federal Courts where a statutory right of
appeal exists.12 Where a party has a statutory right of appeal on certain grounds, judicial review
may still be available on grounds not provided for in the statute.13

Standard of Review

The standard of review refers to the level to which the courts will defer to the decision of an
administrative decision maker, rather than overturning that decision. Courts generally approach
the review of administrative action with some deference in order to respect the notion that the
administrative tribunal being reviewed is best able to determine the issues in question given its
specific mandate and its expertise.

The jurisprudence has traditionally identified a spectrum of standards of review containing three
points which include patent unreasonableness, reasonableness simpliciter, and correctness.14
The Supreme Court of Canada, however, has very recently held that it is appropriate to simplify
these different standards, replacing them entirely with two standards: reasonableness and
correctness.15

Under the traditional test, the most deferential standard is that of patent unreasonableness. If the
defect of a decision is apparent on its face, it is said to be patently unreasonable.16 If, however, it
takes some significant searching to identify a defect in a decision, then the decision is not
patently unreasonable.17 The standard of patent unreasonableness was introduced primarily to
deal with situations where legislation contains a clause (called a privative clause) that in some
manner suggests that the decision of an administrative agency is not subject to review by any
court. In such circumstances, the standard of patent unreasonableness is a compromise between
the legislatures apparent intention to exclude review and the constitutional principle that all
delegated decision-making can be tested for compliance with the terms of the legislation
providing for it. The theory here is that, while legislatures may legitimately create tribunals that
have the right to be wrong, no legislature can create a tribunal possessing an untrammelled right
to make any decision that it is minded to make, however plainly irrational it might be. A patently
unreasonable decision is one that is not simply incorrect, but is obviously irrational.

The reasonableness simpliciter standard lies in the middle of spectrum. This standard is
distinguished by the immediacy or obviousness of the defect. Reasonableness simpliciter is
equivalent to clearly wrong. As such, it is less deferential than patent unreasonableness and more
deferential than the correctness standard.18

The least deferential standard is the standard of correctness. Under this standard, the court will
not tolerate error and will generally intervene unless the impugned decision is correct.

In determining which of the three standards to apply, courts use what is known as the pragmatic
and functional approach. This approach involves weighing four different factors, none of which,
on its own, is determinative.19 The four factors are:
(a) Privative Clauses or Statutory Rights of Appeal: A tribunals enabling statute may include a
privative clause that limits or excludes judicial review and renders the tribunals decision final
and binding. Courts may exercise their supervisory jurisdiction in such circumstances
notwithstanding the existence of a privitive clause. The fact that such a clause exists is, however,
suggestive that a high level of deference should be given by the courts.

Conversely, the existence of a statutory right of appeal indicates that the tribunals decision was
not intended to be final. As such, a high level of deference may not be appropriate. However, as
previously discussed, a court may refuse to judicially review an administrative decision until
statutory rights of appeal have been exhausted.

(b) Expertise: The courts will also consider the relative expertise of the tribunal, with respect to
both questions of law and of fact, as well as the composition of the tribunal and its mandate.20 If
the tribunal is perceived to have specialised knowledge or expertise over the particular subject
matter, more deference will be shown. Conversely, if the courts are equally competent and
experienced in the particular field, a less deferential standard may be appropriate.21

(c) The Purpose of the Statute as a Whole and the Provision in Particular: Where the purpose of
the statutory scheme, the tribunals mandate, and the questions at issue relate primarily to the
rights of the specific parties, the courts will generally be more deferential. Where the interests at
stake are broad and affect more people than the interested parties, courts will show less
deference.22

(d) The Nature of the Issue: The general rule is that questions of fact are approached more
deferentially, while questions of law are subject to a more searching (or less deferential) standard
of review.

All of these principles must now be revisited in light of the Supreme Court of Canadas recent
indication that it wishes to simplify the analysis of standard of review, and replace it with two
standards, being reasonableness and correctness. As with most such revolutions in judicial
thinking, it is too early to tell how in practice these two standards will be applied.

Relief Available Under Judicial Review

The courts remedial jurisdiction on judicial review is limited to the powers outlined in the
applicable statute. The powers of the Ontario Divisional Court, for instance, are set out in s. 2 of
the Judicial Review Procedures Act and, in the case of the Federal Courts, in s. 18.1(3) of
the Federal Court Act.

With the exception of costs, the courts can only grant relief against the tribunal under review. For
example, a court may, as a result of an application for judicial review, order a tribunal to
reconsider a matter. However, the court cannot require an applicant to do or refrain from doing
any act on an application for judicial review. Neither the Federal Court nor the Divisional Court
may award damages to a party on judicial review. They are, however, able to award costs of the
application for judicial review as between the parties.23

Interim Relief

Both the Federal Courts and the provincial Divisional Court have the power to make interim
orders, including staying (or suspending) an administrative proceeding pending judicial review.
This power is significant for two reasons. First, an administrative decision is not automatically
stayed pending judicial review. Thus, if the court was unable to order a stay, an administrative
proceeding could continue while an application for judicial review is underway. Second, many
administrative tribunals do not have the power to stay their own decision pending review. In such
circumstances, even if an administrative tribunal thought it appropriate to suspend their own
proceeding while an application for judicial review proceeded, that tribunal would not have the
power to do so.

A court will generally grant a stay if the applicant can establish: (1) that there is a serious issue to
be tried; (2) that irreparable harm will result if the matter is not stayed; and (3) that the balance
of convenience and the public interest favour granting a stay.24

The circumstances in which judicial review will be available as a potential remedy will vary
depending on the statute governing the administrative body that first made the impugned
decision. Counsel can provide advice about whether judicial review is appropriate, and whether
it is likely to succeed in a particular case.