Judicial Reviews
Can I Appeal or Review a Tribunal Decision?
What is a Judicial Review?
If you have received a decision from either a tribunal or other government decision maker such as the Residential Tenancy Branch, the BC Human Rights Tribunal, or the Employment Standards Tribunal, and you are unhappy with the decision, you may be able to review the tribunal’s decision through a process called Judicial Review.
A Judicial Review is a request to the BC Supreme Court to evaluate a decision made by a tribunal to determine if that decision was unreasonable or unfair. The BC Supreme Court can only intervene and overturn a tribunal’s decision if the court finds that the tribunal made an error that resulted in the tribunal process being unfair (called “Procedural Unfairness”) or if the tribunal made a substantive error in applying the law or misunderstanding and/or misapplying facts (called “Substantive Errors”).
It is important to remember that on a judicial review, the court will not be “re-hearing” the case, this is not the time to argue the position you took at your tribunal hearing or to introduce new evidence that should have been introduced at the hearing. Instead, the court will be focusing on narrow issues centering around Procedural Unfairness or Substantive Errors made by the decision-maker.
Parties seeking to review a tribunal decision must understand that they may not have an automatic right to seek a review before the BC Supreme Court. Some tribunals, such as the Employment and Assistance Tribunal have their own, internal appeal tribunals. Parties wishing to review a tribunal decision must have exhausted all available internal methods of appeal before applying to the BC Supreme Court for a judicial review.
Time Limits for Judicial Reviews
Applicants must be mindful that there are strict deadlines for filing a judicial review of a tribunal decision. If the tribunal that issued your decision falls under the Administrative Tribunals Act, you have 60 days from when the decision was made to file a judicial review. If you miss your deadline to file a judicial review, you may be able to ask the court for an extension of time to file a review; however, the court may deny your application to extend the time to file the judicial review if you do not have a very good reason for seeking an extension.
Not all tribunals or government decision makers fall under the Administrative Tribunals Act and time limits for appealing certain types of tribunal decisions may differ depending on the tribunal at issue.
Filing for a Judicial Review
A document called a “Petition to the Court” will need to be filed at the BC Supreme Court Registry nearest to you in order to start the judicial review process. The document will have to set out the order you are seeking, the facts that you are basing this judicial review on, the legal basis that you are relying on and any other material (such as an affidavit) that you will rely on for your judicial review.
After you have filed the Petition, you must ensure that you have served all of the appropriate parties with all of the documents that you will rely on at the judicial review. There are very specific rules, set out in various pieces of legislation, such as the Judicial Review Procedure Act and the Supreme Court Civil Rules, that dictate what types of documents must be filed with the court ahead of a judicial review hearing.
The law surrounding judicial review can be complicated and preparing for a judicial review can be a time consuming and often, overwhelming process. The lawyers at Cote & Evans Trial Lawyers are well versed in tribunal matters and can assist you in preparing for and conducting your judicial review.
What Happens to an Order being Appealed?
An order being appealed is not automatically stayed. That is, it is still in effect unless the court directs otherwise. However, an appellant can apply to stay the order pending the determination of the appeal.
To successfully obtain a stay of an order, you must show the court that:
- There is some merit to the appeal (that is, there is a serious question to be decided); and
- You would suffer irreparable harm if the stay was not guarded.
If the order is regarding a family matter, the application to stay the order must be made to the court who made the order, rather than to the Court of Appeal.
Until an order is stayed, enforcement of the order being appealed can continue and the order is still in effect and parties must continue to comply with the order.
