If you do not like a decision made by a tribunal such the Residential Tenancy Branch, you may seek a judicial review of such decision. A judicial review is not an appeal. Rather, it is a mechanism that allows Courts to supervise administrative decision-makers. If the Court finds that a decision was unfair, unreasonable or illegal, the court can overturn the decision.
In other words, a judicial review allows Courts to review administrative decisions to ensure they are legal, reasonable, and fair in terms of administrative processes and outcomes.
What Types of Decisions are Open to Judicial Review?
Examples of administrative bodies, whose decisions can be judicially reviewed, include (but are not limited to):
Given the Court’s supervisory role on judicial review, participants may not rely on new evidence. Instead, participants must argue whether an administrative decision was (un)fair, (un)reasonable, or (il)legal based on the same evidence before the administrative decision-maker.
How Long Do I have To Seek a Judicial Review in BC?
The Administrative Tribunals Act says that an application for judicial review must be started within 60 days of the date the decision was issued. However, there are exceptions to this timelines depending on the type of judicial review you require.
For example, the Local Government Bylaw Enforcement Act says that an application for judicial review must be brought within 30 days after the determination is made, etc.
It is best to contact a judicial review lawyer to better understand your rights and obligations if you are thinking of seeking a judicial review.
What happens to the Order while I wait for my Judicial Review Hearing?
The order is effective regardless of whether you are seeking a judicial review or not. If you want to suspend or ‘hold’ the Order until you go to court for judicial review, you will need to seek a stay of the Order and get a court order to stop the Order from being effective.
For example, if the Residential Tenancy Tribunal orders you to vacate a rental property, but you apply for judicial review, then what happens? You must take additional steps to ask for a ‘stay of proceedings.
What is a Stay?
A ‘stay of proceedings means that the order and/or related processes are temporarily stopped.
To obtain a ‘stay of proceedings’, you must file your Petition for Judicial Review. Afterwards, you must file a Notice of Application and ask for a ‘stay of proceedings’ with respect to the order resulting from the administrative tribunal.
If you don’t obtain a ‘stay of proceedings’, then the other party may enforce the order from the administrative tribunal. In the above example, the landlord may enforce the ‘Order of Possession’ by hiring bailiffs to forcibly remove you from the property.
This process can be very complex. It is best to seek the advice or assistance of a lawyer to help you navigate it.
What are my Chances of Success if I do a Judicial Review?
If you think the administrative body made a mistake in their decision, generally two types of mistakes can be overturned:
- substantive errors; and
- procedural errors.
Substantive errors include ‘errors in law’ and ‘errors in fact’. An ‘error in law’ happens when an administrative tribunal misapplies the law.
An ‘error in fact’ happens when a decision-maker misunderstands the facts before applying the law.
The difference is subtle, but important.
Examples of Substantive Errors
Errors in law include:
- the application of an incorrect legal principle;
- the failure to consider an element of a legal test; or
- the failure to consider a relevant factor in a legal analysis.
For Example, in the residential tenancy context, if an arbitrator fails to consider whether a Notice to End Tenancy is compliant with section 52 of the Residential Tenancy Act before issuing an Order for Possession, then it may result in an ‘error in law’. In contrast, if an arbitrator mistakenly assumes that a tenant and landlord operated under a fixed term tenancy rather than a month-to-month tenancy and subsequently dismisses a landlord’s eviction attempt, then it may result in an ‘error in fact’.
Examples of Procedural Errors
Judicially reviewable mistakes arise when a tribunal fails to follow basic principles of fairness. Basic fairness principles include:
- the right to an unbiased and impartial decision-maker;
- the right to know the case; and
- the right to respond to a case.
Procedural fairness typically also includes the right to a hearing and the right to a written decision.
As a rule of thumb, people are given more procedural rights when the consequences of an administrative decision are more serious.
What are the Possible Outcomes of a Judicial Review?
If you file a Petition for Judicial Review, then there are limited number of possible outcomes. If you’re unsuccessful, then the original decision and order will remain in effect. If you’re successful, then the following may happen:
- the Court may set aside the original decision and require the administrative tribunal to re-hear your case;
- the Court may resend the original decision back to the administrative tribunal for more explanatory reasons; or
- the Court may step-in and render its own decision on the matter.
With respect to (c), the Court will only step in to substitute an administrative decision if no other outcome is possible.
What are Legal the Costs of a Judicial Review Application?
It really depends on:
- the type of judicial review
- the size of the case
- the body that made the decision
- changes of success/loss.
It is best to have a lawyer first determine your chances of success via a consultation prior to making a decision on whether you should seek a judicial review.
If it is recommended that you do, our judicial review lawyers generally offer flat fees with respect to costs so there are no surprises.
If you believe an administrative decision is unfair, illegal, or unreasonable, please contact our office. We can review your decision and give an opinion on likelihood of success with respect to a judicial review.
Call us at 604-974-9529 or get in touch.
Author: Harry Saini is a family and judicial review lawyer at YLaw and the writer of this article.
