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Administrative Tribunals

Administrative tribunals are specialised governmental agencies established under federal or
provincial legislation to implement legislative policy. Some public boards and public decision
makers also have had powers of decision making conferred upon them by statute. Such powers
of decision making are conferred upon administrative tribunals, boards or other decision makers
in order to provide a more expeditious, less formal and sometimes less expensive method (than
the courts) for resolving certain types of disputes or issues. Administrative tribunals also provide
a forum in which complex issues can be decided by adjudicators with expertise in the particular
field.

While most tribunals are required (by common law or statute) to follow some basic rules of
procedure, there is no specific set of rules that applies universally. The procedure to be followed
by a tribunal may be found in the enabling statute or related regulation and in rules, guidelines,
or directives formulated by the tribunal. Procedures may also be set out in a notice issued for a
particular proceeding or they may be a matter of unwritten tribunal policy or practice.1 Ontario,
for instance, has enacted a minimum code of procedure in the Statutory Powers Procedure Act,2
which some tribunals are required to follow.

The fact that no procedural rules are prescribed does not free a tribunal, board, officer or public
decision maker from all procedural constraints. When statutory decision makers perform a
judicial or quasi-judicial decision making function, they are governed by common law
procedural principles. The standard of procedural fairness to which a party before an
administrative agency may be entitled will vary with the context.

In some cases, the seriousness of the potential impact of a decision on a party will require almost
court-like procedures. In such cases, it is often said that the party to the administrative
proceeding in question will be entitled to a decision in accordance with the principles of natural
justice.

Natural Justice

The principles of natural justice include the right to be heard, and the right to an impartial
decision maker. A party who has a right to be heard is entitled to sufficient prior notice of the
proceeding so that the party has the opportunity to prepare his or her case, attend before a

Fairness In some cases. In such circumstances. the doctrine of fairness requires that before a decision adverse to a person’s interests is made. a decision maker has a pecuniary interest in the outcome of the proceeding. that person should be told the case that they have to meet and should be given an opportunity to respond.3 Examples Examples of administrative tribunals. the information received from that person should assist the decision maker in arriving at a rational and informed decision. particularly where the impact of a decision may be relatively minor. This ensures that the person to be affected by the decision is given an opportunity to influence the decision. boards and public decision makers in Ontario include: Agriculture and Food Appeal Tribunal Assessment Review Board Consent and Capacity Board Criminal Injuries Compensation Board Ontario Energy Board Environmental Review Tribunal . the governing legislation will contemplate a very informal kind of decision. An impartial decision-maker is one who is free of a reasonable apprehension of bias. however. Even where this is the case. boards or public officials based on the doctrine of fairness. courts can assess the procedural adequacy of decisions made by tribunals.decision maker and make representations. The right to proper notice also includes the right to know the case that must be met. proper notice will include providing details of the case to the responding party. or a prior relationship with one of the parties. Reasonable apprehension of personal bias might result when. a party to an administrative proceeding may not be entitled to full natural justice. whether personally or institutionally. in other words. Additionally. At minimum. for instance.

boards or other public decision makers may bring an application in court to have the administrative decision reviewed by the court. Substantive judicial review challenges the decision itself. or on the basis that the decision was either incorrect or unreasonable. boards.e. parties who have been affected by decisions of tribunals. or the decision was otherwise procedurally unfair).e. officers and public decision makers. In some circumstances. acted outside his or her jurisdiction). There are two broad categories of judicial review: procedural judicial review and substantive judicial review. Procedural judicial review involves an allegation that an impugned administrative decision was reached in a manner not in compliance with procedural fairness (i. Judicial review can be pursued provincially before the Divisional Court (a special branch of the Superior Court of Justice) or federally before the Federal Court. The Federal Court may review .Ontario Film Review Board Health Services Appeal and Review Board Ontario Human Rights Commission Information and Privacy Commissioner Ontario Labour Relations Board Landlord and Tenant Board Licence Appeal Tribunal Liquor Control Board of Ontario Ontario Municipal Board Financial Services Tribunal Ontario Review Board Workplace Safety and Insurance Appeals Tribunal Judicial Review Courts have supervisory jurisdiction over the actions of public tribunals. there was a denial of natural justice. either on the basis that the decision-maker in question did not have the power to make the decision he or she purported to make (i. This is called judicial review.

the court is not statutorily precluded from conducting judicial review even if there is a right of appeal. rather than overturning that decision.any authority that exercises powers conferred upon them by a federal statute or order.8 Availability of Judicial Review The court’s supervisory jurisdiction over administrative tribunals is inherent in any system governed by the rule of law. the court is not precluded from reviewing issues that have already been the grounds of an appeal. the Federal Court Act bars judicial review by the Federal Courts where a statutory right of appeal exists.4 The review of federal administrative action is governed by the Federal Court Act5 and the Federal Court Rules. discretionary. judicial review may still be available on grounds not provided for in the statute. Courts generally approach the review of administrative action with some deference in order to respect the notion that the . The right to judicial review is.10 where the issues raised are hypothetical. There are circumstances in which courts will refuse to exercise their discretion. such as the right of appeal or reconsideration have not been exhausted. the right to judicial review need not be set out in a statute. moot or are not justiciable (appropriate for court review).11 Judicial review is not the same as an appeal. and where alternative remedies. Similarly. however. Conversely.12 Where a party has a statutory right of appeal on certain grounds. since citizens are always entitled to a court’s ruling as to whether administrative power has been exercised in accordance with all applicable legal principles.9 Therefore.13 Standard of Review The “standard of review” refers to the level to which the courts will defer to the decision of an administrative decision maker.6 The Divisional Court has jurisdiction to review decisions of bodies exercising statutory powers of decision conferred upon them by provincial statute. In Ontario. Judicial review in Ontario is governed by the Judicial Review Procedures Act7 and the Rules of Civil Procedure. Some examples of such circumstances include: where there has been unreasonable delay in initiating judicial review. Neither Parliament nor the provincial legislatures have the power to exclude the right to judicial review.

however. has very recently held that it is appropriate to simplify these different standards. reasonableness simpliciter. This approach involves weighing four different factors. The reasonableness simpliciter standard lies in the middle of spectrum. Reasonableness simpliciter is equivalent to clearly wrong. no legislature can create a tribunal possessing an untrammelled right to make any decision that it is minded to make. however. the court will not tolerate error and will generally intervene unless the impugned decision is correct. The jurisprudence has traditionally identified a spectrum of standards of review containing three points which include patent unreasonableness. none of which.administrative tribunal being reviewed is best able to determine the issues in question given its specific mandate and its expertise. then the decision is not patently unreasonable.14 The Supreme Court of Canada. it is less deferential than patent unreasonableness and more deferential than the correctness standard.18 The least deferential standard is the standard of correctness. If the defect of a decision is apparent on its face. As such. In such circumstances. and correctness. on its own. but is obviously irrational. This standard is distinguished by the immediacy or obviousness of the defect.16 If. A patently unreasonable decision is one that is not simply incorrect. is determinative. it takes some significant searching to identify a defect in a decision. In determining which of the three standards to apply. the most deferential standard is that of patent unreasonableness. however plainly irrational it might be. while legislatures may legitimately create tribunals that have the right to be wrong.17 The standard of patent unreasonableness was introduced primarily to deal with situations where legislation contains a clause (called a “privative clause”) that in some manner suggests that the decision of an administrative agency is not subject to review by any court. it is said to be patently unreasonable. the standard of patent unreasonableness is a compromise between the legislature’s apparent intention to exclude review and the constitutional principle that all delegated decision-making can be tested for compliance with the terms of the legislation providing for it. Under this standard. The theory here is that.15 Under the traditional test. replacing them entirely with two standards: reasonableness and correctness.19 The four factors are: . courts use what is known as the “pragmatic and functional” approach.

for instance. the courts will generally be more deferential. while questions of law are subject to a more searching (or less deferential) standard of review.21 (c) The Purpose of the Statute as a Whole and the Provision in Particular: Where the purpose of the statutory scheme. The powers of the Ontario Divisional Court. as previously discussed. All of these principles must now be revisited in light of the Supreme Court of Canada’s recent indication that it wishes to simplify the analysis of standard of review. it is too early to tell how in practice these two standards will be applied. Where the interests at stake are broad and affect more people than the interested parties.22 (d) The Nature of the Issue: The general rule is that questions of fact are approached more deferentially. However. courts will show less deference. a high level of deference may not be appropriate. Conversely. and the questions at issue relate primarily to the rights of the specific parties. the tribunal’s mandate. more deference will be shown. (b) Expertise: The courts will also consider the relative expertise of the tribunal. however. as well as the composition of the tribunal and its mandate.(a) Privative Clauses or Statutory Rights of Appeal: A tribunal’s enabling statute may include a privative clause that limits or excludes judicial review and renders the tribunal’s decision final and binding. are set out in s.20 If the tribunal is perceived to have specialised knowledge or expertise over the particular subject matter. a less deferential standard may be appropriate. Conversely. a court may refuse to judicially review an administrative decision until statutory rights of appeal have been exhausted. being reasonableness and correctness. the existence of a statutory right of appeal indicates that the tribunal’s decision was not intended to be final. As with most such revolutions in judicial thinking. The fact that such a clause exists is. suggestive that a high level of deference should be given by the courts. with respect to both questions of law and of fact. and replace it with two standards. Courts may exercise their supervisory jurisdiction in such circumstances notwithstanding the existence of a privitive clause. Relief Available Under Judicial Review The court’s remedial jurisdiction on judicial review is limited to the powers outlined in the applicable statute. 2 of . As such. if the courts are equally competent and experienced in the particular field.

as a result of an application for judicial review. However.1(3) of the Federal Court Act. Thus. if the court was unable to order a stay. . however. Neither the Federal Court nor the Divisional Court may award damages to a party on judicial review. an administrative decision is not automatically stayed pending judicial review. Counsel can provide advice about whether judicial review is appropriate. and (3) that the balance of convenience and the public interest favour granting a stay. including staying (or suspending) an administrative proceeding pending judicial review. 18. the court cannot require an applicant to do or refrain from doing any act on an application for judicial review. order a tribunal to reconsider a matter. that tribunal would not have the power to do so. First. many administrative tribunals do not have the power to stay their own decision pending review. and whether it is likely to succeed in a particular case. even if an administrative tribunal thought it appropriate to suspend their own proceeding while an application for judicial review proceeded. For example. in the case of the Federal Courts. They are. This power is significant for two reasons. an administrative proceeding could continue while an application for judicial review is underway.the Judicial Review Procedures Act and. a court may.24 The circumstances in which judicial review will be available as a potential remedy will vary depending on the statute governing the administrative body that first made the impugned decision.23 Interim Relief Both the Federal Courts and the provincial Divisional Court have the power to make interim orders. In such circumstances. A court will generally grant a stay if the applicant can establish: (1) that there is a serious issue to be tried. able to award costs of the application for judicial review as between the parties. in s. Second. the courts can only grant relief against the tribunal under review. With the exception of costs. (2) that irreparable harm will result if the matter is not stayed.