To succeed in a judicial review you need to show the court that the tribunal made a serious legal or factual error in the decision, or that the tribunal process for making the decision was so unfair that the decision should be set aside.
There are essentially two types of errors that might lead a court to overturn a tribunal decision on judicial review:
- Procedural fairness errors.
- Substantive errors.
1. Procedural fairness errors
Procedural fairness errors are errors in the way the hearing was conducted or the way the decision was made. They are errors that make the process unfair.
These are examples of problems that may be procedural fairness errors:
- You didn’t get proper notice of the tribunal hearing;
- You were unable to attend the tribunal hearing because of circumstances that you could not control;
- You did not get a chance to see all of the evidence that the tribunal used to reach its decision (for example, you didn’t get a copy of the other side’s evidence);
- You did not get a chance to make your case (for example, you were not allowed to talk at the hearing or you were cut off);
- You were not allowed to have someone represent you or assist you at the hearing; or
- You did not have a chance to test the other side’s evidence (for example, you were not allowed to question the other side’s witnesses on important points).
Before claiming procedural unfairness, think carefully about the examples listed above and the procedures the tribunal used. If you lost your case, you may think the outcome is unfair, but that does not necessarily mean the decision will be set aside on judicial review. You need to show the court a very serious error in the tribunal’s procedure, along the lines of the examples listed above.
The following types of problems with decisions are usually NOT procedural fairness problems:
- There was conflicting testimony or evidence and the tribunal believed the other side’s testimony or evidence instead of yours.
- The tribunal did not consider evidence that was not put before the tribunal.
- During the hearing, the tribunal asked you to wait your turn to speak.
- You disagree with the tribunal’s decision.
2. Substantive Errors
Substantive errors are errors in the actual decision made by the decision maker.
A tribunal makes a substantive error when it makes a mistake in its:
- factual findings (for example, how it resolved conflicting evidence about what happened);
- legal findings (for example, how the tribunal interpreted the law that applies); or
- exercise of discretion (for example, how the tribunal decided to act when it had the option to do something in a particular way, like extending a timeline for submitting a document).
How serious does a substantive error have to be for a court to set aside a tribunal decision on judicial review? It depends on what tribunal you are dealing with and what type of error you are saying the tribunal made.
For most tribunals in BC there are three possible levels of error that you might need to show the court. These are called “standards of review,” because they show what standard the court will use when reviewing the tribunal’s findings. The law on standard of review is complicated and you should get legal advice to make sure you understand how it fits into your case.
Here is a rough overview of the three possible standards of review:
- Correctness: Where the standard of review is correctness, all you need to show is that the tribunal was incorrect. The court will review the evidence and decide whether or not it agrees with the tribunal. Correctness is the least deferential standard of review, meaning the court will be more willing to interfere with the Tribunal’s decision where correctness is the standard of review.
- Reasonableness: Where the standard of review is reasonableness, you need to show that, given all the evidence that was before the tribunal and given the applicable law, the tribunal’s findings were not within the range of reasonable options available to the tribunal. On this standard of review the court might disagree with the tribunal’s decision but will not interfere with the decision if it is within the range of reasonable options.
- Patent unreasonableness: This usually has two meanings, depending on whether you are claiming that the tribunal made an error in factual or legal findings, or in an exercise of discretion. This is the most deferential standard of review, which means the court will be the least likely to interfere.
- For factual or legal findings, you need to show that the tribunal’s decision was openly and clearly unreasonable, or that there is no evidence to rationally support the tribunal’s decision. This means that, even if a court disagrees with the tribunal’s decision, as long as there is something to support it, the court will not interfere.
- For discretionary decisions, you most often need to show that the tribunal (i) acted arbitrarily or in bad faith; (ii) had an improper purpose; (iii) considered primarily irrelevant factors; or (iv) failed to take the legislative requirements into account.
This chart sets out which standards of review apply to the tribunal you are dealing with: Standards of Review by Tribunal