To succeed in a judicial review you need to show the court that the Residential Tenancy Branch (RTB) made a serious legal or factual error in the decision, or that the RTB 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 RTB 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 RTB hearing;
- You were unable to attend the RTB hearing because of circumstances that you could not control;
- You did not get a chance to see all of the evidence that the RTB 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 RTB 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 RTB’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 Arbitrator believed the other side’s testimony or evidence instead of yours.
- The Arbitrator did not consider evidence that was not put before the RTB.
- During the hearing, the Arbitrator asked you to wait your turn to speak.
- You disagree with the Arbitrator’s decision.
2. Substantive Errors
Substantive errors are errors in the actual decision made by the decision maker.
A tribunal (such as the RTB) 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 Arbitrator interpreted the law that applies); or
- Exercise of discretion (for example, how the Arbitrator 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 RTB decision on judicial review? It depends on what type of error you are saying the RTB made.
For the RTB 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 RTB’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.
This is an overview of the standards of review that the court will use in a judicial review of a RTB decision:
- Patent unreasonableness: This usually has two meanings, depending on whether you are claiming that the RTB 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 RTB’s decision was openly and clearly unreasonable, or that there is no evidence to rationally support the RTB’s decision. This means that, even if a court disagrees with the RTB’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 RTB (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.
- Correctness: For other types of RTB decisions, the standard of review is correctness. Where the standard of review is correctness, all you need to show is that the RTB was incorrect. The court will review the evidence and decide whether or not it agrees with the RTB. Correctness is the least deferential standard of review, meaning the court will be more willing to interfere with the RTB’s decision where correctness is the standard of review.