The document discusses various ways to challenge decisions made by administrative tribunals, including internal review processes, statutory rights of appeal, and judicial review. It provides details on when and how to request internal reconsideration or review of a decision, the standards of review that courts apply to appeals of administrative decisions, and the options courts have for remedying errors found in administrative decisions. The document focuses on the law and procedures governing challenges to decisions in Ontario.

1. BCTA 308:
Administrative Law
Chapters 16, Administrative Law, Principles &
Advocacy
Week #12 – Challenging Decisions of a Tribunal

2. When would you challenge a decision:
• Agency outside its jurisdiction
• The agency failed to take action it was
required to take
• The agency improperly delegated a decision
• The agency applied discretion improperly, not
considering all its options
• The agency misinterpreted and misapplied the
law
• The agency acted in bad faith, procedural
issues
• Procedural fairness, opportunity to be heard
2

3. Number of ways to challenge a
decision:
• Internal review and appeals
• Privitave clauses, defence on appeals statutory
right of appeal
• Staying a decision or order, test for granting a
stay
• When is a Tribunal functus?
• Reconsideration by a Tribunal
• Judicial Review or appeals, Divisional Court
• Deference based on the expertise of the agency
• Review by the Ontario Ombudsman
3

4. Internal Review - Reconsideration

5. Internal Agency Review or
Reconsideration :
Internal Review – Reconsideration
• Most agencies have Rules that empower them
to correct their own errors.
• Internal review is cheaper and faster
• The review will be done by a different decision
maker
• These reviews often result in a re-opening of
the hearing
• Often courts won’t grant statutory right of
appeal until internal review has been attemped
5

6. Internal Agency Review or
Reconsideration :
Rules for Internal Review /
Reconsideration
• You will find the process in the agencies Rules
of Practice
• There is always a time limit, for filing usually 30
days
• In extraordinary circumstance time limit can be
extended
• These reviews often result in a re-opening of the
hearing
• Often courts won’t grant statutory right of
appeal until internal review has been attempted 6

7. Internal Agency Review or
Reconsideration :
Staying of a Decision
• Most often the person asking for the internal
review will ask that the original decision be
“stayed”
• Usually the stay will be granted pending the
outcome of the internal review, otherwise
review might be meaningless
• Usually the request for review or
reconsideration must be accompanied by a
request to stay the decision
• An appeal to a court generally stays a decision,
see SPPA
7

8. Internal Agency Review or
Reconsideration :
Test for Granting a Staying of a
Decision
A tribunal will usually “suspend” the effect of
their decision if appropriate. The test for
granting a “stay” is:
• There appears to be a serious issue to be
determined
• The party seeking the stay will be harmed if not
granted, for instance, a building will be
demolished, a tenant will be evicted if the stay
is not granted
• The balance of convenience favours a stay
8

9. Internal Agency Review or
Reconsideration :
Tribunal reviews decision on onw
initiative
• Most tribunals have the power to initiate their
own review, most often called
“reconsideration”, if they believe it is
appropriate
• The SPPA authorizes a tribunal to review their
decision if they consider it “advisable”
• This right to reconsider over-rides the common
law rule of “ functus officio”, which normally
results in a tribunal having no further role in a
decision once it is made
9

10. Internal Agency Review or
Reconsideration :
Tribunal reviews often a 2 stage
process
• Most tribunals have a two stage approach to
internal review
• A party requests a review, which is evaluated
against certain criteria. If it appears there may
have been a serious error, it is sent to a review
hearing
• At the review hearing, the adjudicator
determines if there was a serious error, and if
there was a serious error, the review will be
granted and the matter will be re-heard
10

11. Internal Agency Review or
Reconsideration :
Tribunal reviews often a 2 stage
process
• An adjudicator granting a review does not have
to grant a review of the entire decision,
sometimes only certain issues need to be reheard
• After hearing a review, the board member can
affirm, quash, or vary the original order
• It is important that agencies have broader right
to review their own decisions than the courts on
appeal, so that errors can be fixed quickly and
easily
11

12. Statutory Right of Appeal

13. Statutory Right of Appeal:
APPEALS
• Many statutes provide a party to an application
the right to file an appeal of a decision with
which they disagree. Who can file the appeal
will be clear from the statute.
• The appeal will be to a higher court, a part of
the Superior Court of Justice, normally a
branch called Divisional Court
• The extent to which a party has a right to file
the appeal will be based on the enabling
statute’s privative clause
13

14. What is a Statutory Appeal:
An Appeal is:
• not a new trial. The evidence is usually the
evidence that was tendered in the original trial
• not automatic. Usually only a tribunal’s final
decision can be appealed
• urgent. The notice of appeal must be filed
quickly, usually within 30 days of the date of
the original decision
• the last resort. Often the court will require
that any rights to internal review be exhausted
before the appeal can be heard
14

15. What is a Privative Clause – Curial
Deference:
In administrative law, a privative clause is a provision
in a statute that tries to remove a court’s ability to
review decisions of a tribunal (or other administrative
agency).
Historically, courts have shown resistance to such
privative clauses. In Canada, courts have held that there
are certain constitutional restrictions on the ability of
legislatures to insulate administrative tribunal from
judicial review by means of privative clauses. In Canada.
if there is a privative clause, there will be more
deference given to the administrative tribunal than
otherwise.
15

16. What is a Privative Clause – Curial
Deference:
An Example of a Privative Clause:
Assessment Act
R.S.O. 1990, CHAPTER A.31
Appeal
43.1 (1) An appeal lies from the Assessment
Review Board to the Divisional Court, with leave of the
Divisional Court, on a question of law. 1997, c. 5, s. 28.
16

17. What is a Privative Clause – Curial
Deference:
Curial Defence:
Is the recognition that general courts ought to defer to
the rulings of specialized tribunals save exceptional
circumstances.
Recognizing that the legislature has created specialized
tribunals to deal with disputes in limited and specialized areas,
the general courts of common law jurisdictions are loath to
interfere and hear outright appeals of those tribunals. The
superior courts don't want the work, were not there when
witness credibility was established, and they've not the
specialized knowledge. Therefore, the principle of curial
deference; to defer to the rulings of lower administrative
tribunals.
17

18. What is a Privative Clause – Curial
Deference:
Curial Defence:
However, nor do the general courts wish to fully orphan
the citizen to the administrative tribunal in cases of, for
example, egregious abuse of process or fairness.
Each jurisdiction is different in the extent of curial
deference given to administrative tribunals. In Canada,
the threshold seems to change every few years. The
threshold du jour appears to be that a court of general
jurisdiction will not interfere with - aka will defer to - an
administrative tribunal's decision unless the decision is
patently unreasonable.
18

19. What is a Privative Clause – Curial
Deference:
Curial Defence:
• The amount of deference an appeal court gives to an
administrative tribunal will be based on the type of error,
and the seriousness of the error.
• Errors of law are not usually grounds for an appeal to an
appellate court
19

20. Standards of Review on Appeal of Decisions
The standard of review used depends on the
type of question being reviewed.
Questions of
Law
Questions of
Fact

21. Questions of Law Versus Questions of Fact
• If the administrative agency has decided a question of
law the reviewing court is free to substitute its own
judgment for that of the administrative agency.
– e.g., interpretation of statutory language
• However questions of fact are not easily overturned.
• Reviewing court usually defers to the agency’s factfinding.
• To overturn a decision on an error of fact the factual
finding would have to be:
– An arbitrary, capricious abuse of process

22. Questions of Law Versus Questions of Fact
• The standard of review for findings of fact is such that
they cannot be reversed unless the trial judge has made
a “palpable and overriding error." A palpable error is one
that is plainly seen. The reasons for deferring to a trial
judge's findings of fact can be grouped into three basic
principles….

23. Reasons to Defer on Questions of Fact
• Firstly, given the scarcity of judicial resources, setting
limits on the scope of judicial review in turn limits the
number, length and cost of appeals. Secondly, the
principle of deference promotes the autonomy and
integrity of the trial proceedings. Finally, this principle
recognizes the expertise of trial judges and their
advantageous position to make factual findings, owing
to their extensive exposure to the evidence and the
benefit of hearing the testimony viva voce.

24. What is the Standard of Review on
Appeal
When exercising powers of review
or appeal, how “wrong” can the
decision be before the superior
courts intervene:
To determine whether a particular action or inaction
below amounted to error by the lower tribunal, the court
must select and apply a standard of review that gives an
appropriate degree of deference to the lower tribunal
24

25. What is the Standard of Review on
Appeal
When exercising powers of review
or appeal, how “wrong” can the
decision be before the superior
courts intervene:
A low standard of review means that the decision under
review will be varied or overturned if the reviewing court
considers there is any error at all in the lower court's
decision.
25

26. What is the Standard of Review on
Appeal
When exercising powers of review
or appeal, how “wrong” can the
decision be before the superior
courts intervene:
A high standard of review means that deference is
accorded to the decision under review, so that it will not
be disturbed just because the reviewing court might
have decided the matter differently; it will be varied only
if the higher court considers the decision to have
obvious error.
26

27. Standard of Review after Dunsmuir
In Canada, a decision of a tribunal, board, commission
or other government decision-maker can be reviewed on
two standards depending on the circumstances. The two
standards applied are "correctness" and
"reasonableness."
In each case, a court must undertake a "standard of
review analysis" to determine the appropriate standard
to apply. This approach was adopted in Dunsmuir v. New
Brunswick.
27

28. Standard of Review after Dunsmuir
In 2008 the rules of judicial review have once again
changed with the Supreme Court’s recent decision in
Dunsmuir v. New Brunswick. The Supreme Court’s stated
purpose for the changes is to achieve what the previous
tests had failed to do, that is, "provide real guidance for
litigants, counsel, administrative decision makers [and]
judicial review judges."
All 9 SCC judges in Dunsmuir agreed law on SoR
needed revamping, but could not agree on details.
There were 3 sets of reasons, five in the majority, three
others concurred and Justice Binnie on his own
28

29. Standard of Review after Dunsmuir
Only Two Standards after Dunsmuir
• Correctness/no deference – is the finding “right”?
• Reasonableness/Deference – is the finding w/in an
acceptable range of outcomes that can be justified or
defended?
It is not necessary to determine the standard of review
when a decision is attacked for procedural fairness. The
only question is whether the principles of procedural
fairness were violated.
29

30. Standard of Review after Dunsmuir
The three directives in the Supreme Court’s majority
reasons in Dunsmuir provide significant clarification of
judicial review jurisprudence, and this clarification could
invoke a shift in favour of greater deference to
administrative tribunals and the application of one
standard of review.
30

31. Standard of Review after Dunsmuir
The most obvious change to judicial review is the abolition
of the "pragmatic and functional approach" and its three
standards of review, namely correctness, reasonableness
simpliciter and patent unreasonableness.
In its place, the Supreme Court has implemented the
"standard of review analysis," leaving only two standards
of judicial review: correctness and reasonableness.
31

32. Standard of Review after Dunsmuir
The Supreme Court removed the distinction between
"reasonableness simpliciter" and "patent
unreasonableness," agreeing with D.M. Mullan’s
criticism that "[t]here cannot be shades of rationality."
For anyone who has spent — or more cynically, wasted —
days in court trying to articulate the difference between
the two standards of review, you will appreciate that the
Supreme Court’s decision is a welcomed and useful
clarification.
32

33. Standard of Review after Dunsmuir
The majority decision also provided clarification on the
test for reasonableness, emphasizing that
(i) administrative decisions may "give rise to a number of
possible, reasonable conclusions" and
(ii) a judicial review is concerned with "whether the
decision falls within a range of possible, acceptable
outcomes that are defensible in respect of the facts and
the law."
33

34. Which Standard to Use after Dunsmuir
In determining whether a reviewing court ought to apply
the standard of correctness or reasonableness , the
new "standard of review analysis" requires consideration
of the following four factors:
1.the presence or absence of a privative clause;
2.the purpose of the tribunal as determined by
interpretation of enabling legislation;
3.the nature of the question at issue; and
4.the expertise of the tribunal.
34

35. Which Standard to Use after Dunsmuir
In determining whether a reviewing court ought to apply
the standard of correctness or reasonableness , the
new "standard of review analysis" requires consideration
of:
Privative clause
Will typically indicate reasonableness standard applies,
unless
- constitutional question
- narrow (“true”) jurisdictional question so that
correctness applies
35

36. Which Standard to Use after Dunsmuir
In determining whether a reviewing court ought to apply
the standard of correctness or reasonableness , the
new "standard of review analysis" requires consideration
of:
Nature of question to be decided
Correctness standard applies to:
- Constitutional and true jurisdictional questions
- General law
• of “central importance”
• outside specialized area of expertise
36

37. Which Standard to Use after Dunsmuir
In determining whether a reviewing court ought to apply
the standard of correctness or reasonableness , the
new "standard of review analysis" requires consideration
of:
Nature of question to be decided
Reasonableness standard (may) apply
– - If a privative clause
– - To interpretation of own Act
– - To application of common law in specific
–
context, if specialized expertise
– - To ?’s of natural justice and fairness, fact,
–
policy and exercises of discretion
37

38. Which Standard to Use after Dunsmuir
In determining whether a reviewing court ought to apply
the standard of correctness or reasonableness , the
new "standard of review analysis" requires consideration
of the following four factors:
Tribunal expertise
- Purpose of Tribunal
• Some think are “secondary” tests
• Some query how to establish expertise
• What if appellate court also has expertise, such as
Human Rights issues
38

39. After the Appeal, What Can the Court
Order?
After hearing an appeal, the Court may:
• Dismiss the appeal
• Grant the appeal and impose a new remedy
• Order the agency to make the decision it should have
made
• Exercise discretion that the agency should have
exercised
• Grant the appeal and send it back to the tribunal to
be re-heard by a different member of the board
39

40. Who can represent at an appeal???
In an appeal to the superior court, only a lawyer or the
party may represent himself or herself.
40

41. Judicial Review

42. Judicial Review:
JUDICIAL REVIEW
• There are many factors which will provide a remedy
through the use of Judicial Review
• Parliament has only conferred a legal decision making
power on the basis that it was to be exercised on the
correct legal basis.
• Ontario has the Judicial Review Procedures Act
• A JR can be filed if the decision maker is ultra vires
• A JR is heard by the Superior Court
• If the enabling statute doesn’t provide a right of appeal, a
JR may be the only avenue to correct an unfair decision
42

43. Judicial Review:
Judicial Review Procedures Act
2. (1) On an application by way of originating notice,
which may be styled “Notice of Application for Judicial
Review”, the court may, despite any right of appeal, by
order grant any relief that the applicant would be
entitled to in any one or more of the following:
1. Proceedings by way of application for an order in the nature
of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an
injunction, or both, in relation to the exercise, refusal to
exercise or proposed or purported exercise of a statutory power.
R.S.O. 1990, c. J.1, s. 2 (1).
43

44. Judicial Review:
What is Judicial Review?:
Judicial review is not an appellate process.
If successful, appeals can change decisions e.g. courts
and tribunals
JR provides no guarantee of final outcome
JR is about the legality of decision itself. Is the authority
acting within its powers?
Quashing order which is the classic remedy will refer the
matter back to the decision maker who will be required
to take the decision lawfully next time.
44

45. Judicial Review:
LEGAL BASIS FOR JUDICIAL REVIEW
• In exercising discretion the decision-maker must have
regard to the statutory purpose but also in reaching their
decision it must be clear that relevant considerations
have been taken into account and that irrelevant
considerations have been ignored.
45

46. Judicial Review:
JUDICIAL REVIEW APPROPRIATE IF:
• Constitutionality is an issue
• Agency acted outside the scope of delegated authority
• Procedural due process violations
• Arbitrary and capricious decision
• Abuse of agency discretion
• Separation of powers
• Not taking into account correct & relevant considerations
• Taking into account irrelevant considerations
• On occasion, JR is appropriate if decision given is clearly
not consistent with the evidence at trial
46

47. The meaning of ultra vires
Ultra vires - beyond the powers - the courts are called in
to act because a public body is acting unlawfully by
exceeding its powers.
In other words exercising a control function under the
rule of law
Statutory powers - discretionary powers
Prerogative power - powers formerly exercised by
King/Queen now by ministers e.g. mercy, negotiating
treaties, declaring war
Procedural defect in the conduct of the public body or
agency

48. Special Remedies for Judicial Review
Quashing Order/Certiorari has the effect of
quashing an ultra vires decision.If the remedy is granted
an ultra vires decision will be rendered VOID.
Prohibiting Order /Prohibition - serves to prohibit
the authority from acting unlawfully in the future.
Mandatory Order/Mandamus - instructs (mandates)
an authority to do its statutory duty, which may be to
exercise its statutory discretion lawfully in the future

49. Judicial Review:
CONDITIONS BEFORE JUDICIAL
REVIEW:
1.The case must be ripe for review.
2.The petitioner must have exhausted all administrative
remedies.
3.The decision of the administrative agency must be final
before judicial review can be sought.
4.Remedy of last resort, all other avenues exhausted
49

50. Ontario Ombudsman

51. Internal Agency Review or
Reconsideration :
Ontario Ombudsman
• A person affected by a decision may submit a
complaint to a federal or provincial ombudsman
regarding the decision or procedure
• An ombudsman may respond by conducting a
review and making recommendations, but the
ombudsman has no inherent powers of a court
to overturn a decision
• An ombudsman is not usually interested in
taking complaints about a finding, they are
more interested in reviewing a process that
may be unfair
51

52. BCTA 308:
Administrative Law
End of Presentation