Judicial Review Basics

You should not delay in filing your application – you may find that you have missed an important deadline. Sometimes the court will grant an extension of the time, but there is no guarantee that it will do so. When deciding whether to grant an extension, the judge will consider the amount of time that has gone by and the reason for missing the deadline.

Consult a lawyer as soon as you receive a decision from a tribunal or decision maker. A lawyer can help you decide whether you have a good case for judicial review and can advise you about the time limit that applies to your application.

What Happens to the Order While I Wait for Judicial Review?

Applying for judicial review does not automatically stop the original order from being implemented. To stop an order from being enforced, you will need to apply to the Supreme Court for a “stay” which means the order will be stopped temporarily. For example, if the Civil Resolution Tribunal ordered you to pay the other party right away, the other party can still take steps to get the money from you unless and until you get an order for a stay from the Supreme Court. You have to file your petition for judicial review and then your file your application for a stay. See Petitions and Chambers Applications for information on the process. 

What Kind of Mistakes Can Be Reviewed?

As we mentioned, Courts are limited in what the Court can review when it comes to administrative tribunal decisions. 

Generally they can review two types of mistakes:

1. Substantive errors, and
2. Procedural fairness errors

Substantive Errors

Errors in Law

The government creates tribunals with a statute. That statute will outline the scope of the tribunal’s powers and they cannot make decisions outside of their given powers. If a tribunal misinterprets its own powers, the Court may find they acted outside of the allowed scope. 

Tribunals, like courts, must follow the law. If a tribunal misapplies the law, they may be reviewed.

Errors in Fact 

Tribunals are not allowed to act arbitrarily so their decisions must be based on the facts. If their decision is not reasonably based on the evidence, the Court may find they exceeded their authority.

The Court will generally not interfere with a credibility decision. That is, if the tribunal decided that it believed one person over another, the Court will rarely interfere. 

Procedural Fairness Errors

Tribunals are often given the power to create their open procedures. This is why each tribunal has its own rules and way of doing things. However, they still have to follow basic principles of fairness. If the process they follow is found to be unfair, the Court may review their decision. 

Basic fairness involves the right to an impartial decision maker, the right to know the case and have the opportunity to respond. It could also include the right to counsel, the right to an oral hearing and to formal written decisions, but not always. 

Confusingly, what counts as fair tends to depend on the circumstances. There is a lot of case law on this point, so we recommend getting legal advice if you are not sure what level or procedural fairness is required in your case. Generally, the more serious the potential outcome the tribunal’s decision could have, the more strict and “court-like” their procedures should be. 

Standard of Review

The “standard of review” is an important legal concept in judicial review hearings.

The standard of review tells the judge how serious an error has to be before the decision can be reviewed. In other words, the judge uses it to decide whether the tribunal made a type of error that warrants court intervention.

There are three standards of review in British Columbia:

• Correctness: This means that the judge will decide if they agree with the tribunal’s decision, and may set aside the decision if they did not. This is the lowest standard of review, so the Court may be more willing to review an incorrect decision.
• Reasonableness: Here, the question is not whether the judge agrees with the decision. Rather, it is whether the decision itself is reasonable (makes logical sense). If the judge can understand how the decision was made, even if they do not agree with the decision, they will not interfere.
• Patent Unreasonableness: This is similar in nature to reasonableness. However, it requires an even more obvious error to justify interfering. It could mean that the decision is clearly unreasonable or without any factual basis, or that the tribunal acted in bad faith (with improper purpose) or arbitrarily. This is the highest standard.

In most cases, either the “reasonableness” or “patent unreasonableness” standard will apply but it depends on the tribunal, area of law, and what kind of issues the tribunal is dealing with.

You can figure out which standard will apply by reviewing the statute that governs your particular legal issue (such as the Residential Tenancy Act), as well as sections 58 and 59 of the Administrative Tribunals Act. It is also a good idea to consult with a lawyer to understand what standard of review applies in your case.

Possible Outcomes

In a judicial review, the remedies the Court can give are limited. The Court may not have the authority to give you the remedy that you would like. The Court will usually set aside the decision of the tribunal and order it to hear your case again, without making the mistakes they made the first time. Just because you win your judicial review hearing does not mean that you will win when the tribunal hears your case again. If you lose, the original decision will remain in effect. 

If you win your case, the other side may be ordered to pay your legal costs, but if you lose you could be responsible for paying their legal costs. See Costs to learn more.