Judicial Review and Human Rights

Administrative Bodies and the Court

Human Rights commissions (both provincial and federal) are types of administrative bodies. Administrative bodies are government entities created by statute. They are in charge of implementing government policies. No two administrative bodies are identical. Some tribunals make decisions about rights and adjudicate disputes in a way that resembles a court. Others may be focused on standard setting and bear very little resemblance to a court.

Whatever their structure, administrative bodies perform their functions outside the regular court system. For example, if you have suffered discrimination, you would launch a complaint with the Alberta or Canada Human Rights Commission, not in Court.

While they operate separately from Courts, administrative bodies cannot completely isolate themselves from judicial supervision. Courts have a supervisory role over administrative boards to ensure that they act within their authority, exercise their responsibilities, and follow fair procedures.

This supervisory role can be exercised in a number of ways:

• Administrative boards and tribunals are permitted to refer questions to Court.
• Some administrative boards and tribunals permit their decisions to be appealed to Court. This must be provided for in the statute that forms the tribunal.
• Even if is no right to appeal, some administrative decisions may be reviewed by the judges sitting on the Court of King’s Bench. This is known as judicial review.
  • For example, the Canadian Human Rights Commission/Tribunal provides no right of appeal. To have a judge look at your case, you must apply for judicial review. An application for judicial review of a Canadian Human Rights Tribunal (CHRT) decision may be made to the Federal Court within 30 days after the decision was first communicated to the Deputy Attorney General of Canada or to the affected parties (Canadian Human Rights Act, RSC 1985, c F-7, s 18.1(2)). A step-by-step procedure for bringing an application for judicial review in the Federal Court can be found here.

Judicial Review

Judicial Review is the process whereby a judge of the Alberta Court of King’s Bench reviews the decision of an administrative board or tribunal. Administrative bodies make decisions that affect peoples’ rights. Judicial review is the mechanism by which Courts ensure that, in determining these rights, the government and its agencies act reasonably and fairly within the power granted to them.

Judicial review is not the same as an appeal. Among other things, it has two two important differences:

1. Remedies: Judicial review is limited in what it can do for you. It does not re-hear a case and often will not determine the rights between the parties. It cannot award damages. Rather, on judicial review a judge will issues orders known as prerogative writs, in addition to injunctions and declarations (discussed below).
2. Standard of Review: A judge will review the administrative decision through the lens of deference known as the “standard of review”. This means that sometimes, even if a decision is incorrect, if it is not “unreasonable” the judge will not interfere. This is discussed in more detail below.

1. Remedies in Judicial Review: Prerogative Writs, Injunctions, Declarations

If you seek judicial review, you cannot simply ask for a re-hearing of your case. You must frame your application for judicial review to seek a variety of remedies known as prerogative writs, injunctions, and declarations.

The Prerogative Writs are:

Certiorari – This is the most common remedy sought. It allows a court to review the decision of an administrative entity to determine whether it is acting in a fair, reasonable, and lawful manner. Using certiorari, the Court may set aside a decision, or refer it back to the tribunal for reconsideration.

Mandamus – This asks the court to order a government authority (for example, an administrative board) to perform a legal duty that is has failed to perform. A legal duty must exist for this remedy to be granted.

Prohibition – This prevents an administrative body or a government official from proceeding with a matter for which it lacks jurisdiction.

Quo Warranto – This is used to challenge the right of a person to hold a public office, whether created by the Crown, by charter or by statute. This remedy permits a court to order a decision-maker to show by what legal authority he is acting.

Habeas Corpus – This is the remedy sought in order to force the government to justify the detention of citizens to the courts. It compels an official who has custody of a person to present that person before the court and demonstrate the authority by which he or she detains that person.  It is most often used in cases dealing with detention of would-be immigrants; prisoners; children; and persons with mental disability.

An injunction is a remedy used to prevent unauthorized actions (a prohibitory injunction) or to require that certain actions take place (a mandatory injunction). Injunctions can be temporary or permanent.

A declaration is a judgment of a court which defines the legal position of the parties or the law applicable to their situation. It is an unusual remedy because parties are not obliged to comply with the declaration.

2. The Standard of Review

The Standard of Review refers to how closely a judge will review an administrative board’s decision. There are two standards of review:

• Reasonableness: If the “reasonableness” approach is adopted, a judge will simply consider whether the administrative board’s decision falls within the wide and flexible range of “reasonable” outcomes. As such, under the “reasonableness” standard, then the judge is more likely to respect the board’s ruling and leave it untouched.
• Correctness: The reviewing judge will intervene with the Board’s decision if it is not “correct”. Under the “correctness” standard, a judge will not refer to a wide and flexible range of outcomes. Rather, it will view the decision and determine if it was correct. It is more likely that a decision will be overturned or altered if the court adopts the “correctness” approach

The leading case on standard of review is Dunsmuir v. New Brunswick, 2008 SCC 9. The principles outlined below are described in detail in that case. If you are considering an application for judicial review, we recommend reading Dunsmuir.

Will it be the Reasonableness or Correctness Standard?

There are four factors that are applied to determine what standard of review will be used in a given case. In addition, the Court will often consider prior cases that are similar to your own, and what standard was applied in those cases (known as judicial precedent).

1. The Presence or Absence of a Privative Clause in the Enabling Legislation

All administrative bodies exist by virtue of a statute that created it. Often, when drafting a statute, our elected representatives decide to include a statement stating (with varying degrees of force) that judges should not interfere with the decisions made by the Board or Tribunal. This statement is known as a Private Clause.

If there is a strongly-worded privative clause, the reviewing judge will be more hesitant to intervene, and is more likely to apply a “reasonableness” standard of review. This is more likely to leave the decision-maker’s ruling untouched, because the legislature clearly expressed the desire that the Court stay out of its decision-making process.

2.  The Expertise of the Decision-Makers

Some administrative bodies are comprised of experts in highly specialized areas, while others consist of lay persons and deal with general issues.

The “reasonableness” standard is more likely to be applied where administrative decision-makers possess “special expertise” that judges are not particularly familiar with.  On the other hand, in instances where the reviewing judge believes that the administrative board lacks the necessary expertise, the court is more likely to apply the correctness standard.

3.  The Nature of the Question

In deciding which standard to apply, the reviewing judge will also consider whether the nature of the question before it is one of fact or law. If it is a factual question (for example, whether a witness was lying) the court is more likely to apply the “reasonableness” standard. This stems from the view that those who have actually heard the testimony of a witness (i.e. board members) are better positioned to decide its accuracy. So long as the administrative board reached its factual conclusions in a manner that was not obviously biased or unreasonable, then their factual findings will be respected by the reviewing judge.

If the nature of the question pertains to issues of law that are outside the expertise of the administrative board, then the “correctness” standard is more likely to be applied. Once again, under this standard the judge will substitute its own “correct” decision for that of the board’s. In general, the courts have indicated the following to be questions of law attracting the “correctness” standard where the board lacks the required expertise:

• Questions of law that are of central importance to the legal system as a whole
• Constitutional law questions relating to divisions of powers
• Jurisdictional law issues dealing with two or more administrative boards

4. The Purpose of the Statute

Finally, the reviewing judge will consider the purpose of the empowering statue that guides the administrative board. Generally, if the purpose of the empowering statue is policy motivated, then the judge will lean toward applying the “reasonableness” standard. However, if the purpose of the statue is to empower an administrative board to resolve disputes between individuals, then the “correctness” standard may be adopted.

The above discussion is meant to provide a brief introduction to those who are weighing their options on how to proceed following an administrative board’s decision. Consultation with a lawyer is highly recommended for a judicial review and the above synopsis does not cover the many nuanced considerations that are at play in judicial review proceedings.

See: Dunsmuir case