Before you can go ahead with your judicial review, you may need to stop any action being taken on your administrative decision. In Part 2 of our “Intro to Judicial Review” blog series we explain when you might need to do a Stay Application and how to do one.
Intro to Judicial Review
Part 1: What is Judicial Review?
Part 2: Stay Applications
Part 3: Administrative Tribunals
Part 4: Glossary of Terms
Please note, this guide does not constitute legal advice and should not be relied on for legal advice. Law and court practices can change without warning. If you are using our publications, you should check to make sure that they are up-to-date.
By Isaac Won, Community Law Program Lawyer
If you have received a decision from an administrative board or tribunal (for example, the Residential Tenancy Branch) and you believe they made a mistake in doing so, chances are you have considered filing for judicial review. However, just filing a judicial review won’t stop action being taken on the decision you received in the meantime. You need to get an order to temporarily put the administrative decision order on hold. In legal terms, this is called a “stay”.
Stays are especially important if you receive an order of eviction from the Residential Tenancy Branch and you think there is a mistake in the decision. You will need a “stay” to stay in your home until the judicial review is heard. Often, you will need to get a stay very quickly, maybe within just a day or two.
The only way to get a stay is to go to court and convince a judge to make an order granting you one. In this guide, we will give you some tips on what to expect and what you can do and say to give yourself the best chance of success.
The First Step: Filing your Judicial Review and Notice of Application
To apply for a stay, you will need to start your case for judicial review and pick a date to attend a special type of court called “chambers” to make your argument to a judge about why you should be given a stay.
To start your case, you will need to file a document called a “Petition”. To pick a court date for chambers, you will need to file a document called a “Notice of Application” and a binder of documents called the “Application Record” that is filed closer to the date of your court hearing. All of these documents must be filed at the court’s offices, or “Registry”.
Properly completing your paperwork will take time and effort. There are a lot of details you will need to know to get the process right that we won’t cover here – for more information, see our in-depth self-help guide at judicialreviewbc.ca.
Generally, the court expects you to tell or “give notice to” the opposing party (for example, in an eviction, this would be your landlord) that you are seeking a stay; however, in some cases, you will not have time or it may not be advisable. If you do not give notice to the other party about your stay application, you will need to explain your reasons for not doing so to the judge. The judge may give you a very short term stay and ask you to come back again after you have given notice.
You should clear your calendar for the date you will have your application heard. Depending on the other applications that are also being heard that day, you will probably have to wait for some time for the clerk to call your case before the judge.
The Second Step: Attending court for your application and checking in with the court
In most cases, you will go to the courthouse on the date you selected on your Notice of Application. Unusual circumstances, such as the COVID-19 Pandemic, may alter the court process and require you to appear by telephone or video instead.
Once you are in the courtroom (or on the courtroom telephone line), you should check in with the clerk by letting them know who you are and what the name of your case is (ie “Smith v. Jones”). The clerk may ask you to give an estimate of how much time you will need to make your application, especially if you did not give an estimate on the notice of application you filed. It is a good idea to do a practice run of what you want to say at home so you can give an estimate of how much time you need.
Once you check in, you will have to wait quietly until your case is “called” by the clerk. If you are attending by telephone, you should put your phone on mute until it is your time to speak.
It is important to be early for your hearing so you can check in before the court session starts. If you are late, the court could dismiss your application. See our BC Judicial Review Self-Help Guide for more detailed information on stay hearings.
The Third Step: Making your case to the judge
Once your case is called, you will need to introduce yourself. If the opposing party or their lawyer is attending, they will also introduce themselves. As the applicant, you will speak first to explain why you should be given what you are looking for. Once you make your case, the opposing party or their lawyer will explain their view of the case. You must listen quietly without interrupting. Once the other side finishes, the judge will give you the opportunity to make your response.
Three Legal Criteria for Granting a Stay
To get your stay, it is important to focus on the points that the judge will use to decide the case. The legal test for whether a stay should be granted has three considerations:
- Your case has at least some chance of showing that the administrative decision-maker made a mistake and should have to redo the decision.
- You will suffer “irreparable” or unfixable harm of some kind if the administrative decision is not put on hold.
- The “balance of convenience”, or fairness, favours granting you the stay.
1. Your case has some chance of showing that the decision-maker made a mistake
Often, the first thing the judge will want to know is why you are applying for judicial review. You will need to explain why you say the administrative decision was either patently unreasonable or procedurally unfair.
You don’t have to prove conclusively that the administrative decision-maker made a mistake. You just have to show the judge that you have an arguable case, and aren’t just pursuing the case to delay the effect of the administrative decision or cause a nuisance for the other party.
Examples of patent unreasonableness:
-The administrative decision-maker ruled on an important fact even though there was no evidence to support it
-The administrative decision-maker applied the law incorrectly
Examples of procedural unfairness:
-You did not get a chance to see the other party’s evidence before the hearing
-The administrative decision-maker did not give you a chance to speak in the hearing
- You will suffer irreparable harm
Irreparable harm means harm that would be difficult or impossible to reverse or compensate someone for.
If you are seeking a stay on an eviction order, it is usually sufficient to point out that you will be evicted before your judicial review is heard if you do not get a stay. This will make your judicial review “moot” or pointless.
- The “balance of convenience” is in your favour
The balance of convenience factor is determined based on whether it is fair for you to not be granted your stay. In an eviction situation, continuing to pay your rent is a crucial part of this factor. You should commit to paying your rent for as long as you remain in the rental unit and make efforts to pay, even if the landlord ultimately does not accept your money. If you do not commit to paying, the landlord will be able to argue that they will lose rent money if you are allowed to stay in the rental unit but do not pay. This will be a powerful argument for your landlord.
-It is a good idea to have a written summary of the arguments you want to make with you when you speak to the judge. You should also have copies of documents you filed with the court as part of your application in case the judge asks you to explain them.
You can find an example of what someone in an eviction situation might want to say in their stay application on our judicialreviewbc.ca website. For more detailed information on the legal test for granting a stay, again, see our BC Judicial Review Self-Help Guide.
The Fourth Step: Recording the Result
If you win, the judge will make an order granting your stay. If you did not prepare a draft order for the judge to sign, you will need to write down the judge’s order, taking care to be accurate. You will have to file the order with the Registry and serve it on the other party. For more information on this part of the process, see judicialreviewbc.ca.
One of the most important details of the order will be the length of time the stay is effective for. Your best case scenario is that the stay is in place until the judicial review is completed, however, judges will often attach an expiry date to the order to ensure that you pursue your case diligently.
If you were seeking a stay on an eviction order and your landlord did not appear at the hearing because you did not give them notice of it, you will likely be told to serve the stay order on the landlord within a short timeline. Again, see BC Judicial Review Self-Help Guide for more details.
General tips for court
-If you are attending your hearing in person, it is a good idea to dress nicely if you are able to do so. If you are attending by telephone, you should try to call in from a quiet and secure location where you will be able to give the court your undivided attention and will not be interrupted.
-Depending on the day, your application will be heard by either a Judge or a different kind of administrative judge called a “Master”. You should address a Judge as “my Lord” or “my Lady” and a Master as “your Honour”. If you aren’t sure if you are talking to a Judge or a Master, using “my Lord” or “my Lady” is the best option.
-Always tell the truth in your court documents and in your presentations to the court. Lying to the court is a serious violation of the law and it may also hurt your case.
-Be polite to the clerk, the judge, and your landlord. Representing yourself in court is not just about making legal arguments, but also appearing reasonable and sympathetic. Do not talk over anyone, especially not the judge.