By Kevin Love, Community Law Program Lawyer
Many (and probably most!) of the legal decisions you will get in your life are not made by judges. Think about it. When you apply for your driver’s licence, does a judge jump in the car to mark your parallel parking? Do you run straight to court if you have a disagreement with your landlord? Does a judge decide what government benefits you can get?
The government gives all kinds of people who are not judges the power to make important decisions about your rights. We sometimes call these people “administrative decision-makers”. So what happens when one of these administrative decision-makers makes a serious mistake? Or acts unfairly? Or does something the law does not give them the power to do?
That’s where judicial review comes in. Judicial review is a legal process where a judge – usually a BC Supreme Court judge – reviews a decision made by an administrative decision-maker. Judges have a responsibility to make sure that everyone is respecting the law. This means not just you, but also administrative decision-makers. When an administrative decision-maker makes a bad decision or doesn’t follow the law, it makes sense to think that a judge should be able to just step in and fix it.
Sadly, judicial review is not that simple. Judges have to follow the law too. And the law often says very clearly that the administrative decision-maker, not the judge, gets to make decisions about certain things. In fact, the law often says that judges are not allowed to interfere at all. For example, the law says very clearly that the Workers’ Compensation Board gets to make decisions about workers compensation benefits and judges are not supposed to interfere.
On the one hand, judges have a responsibility to uphold the law. On the other hand, judges are told they can’t interfere with many administrative decision-makers. So what is a judge to do? Over time, a number of rules have been created to strike a balance. These are just general rules, and there are always exceptions, but they provide an overall framework for how judicial review works.
1. Use all your other options first
The first general rule is that judges won’t review a case unless you have used up all your other options to fix the problem outside of court. If the law says that an administrative decision-maker is supposed to make the decision or fix the problem, you generally have to give that administrative decision-maker a chance to do its job before running off to court. For example, let’s say the Workers’ Compensation Board makes a really bad decision about your benefits. You cannot go straight to court if the WCB system gives you the right to review or appeal that decision.
2. Administrative decision-maker’s findings are respected
The second general rule is that judges have to defer – or show respect – to the findings made by the administrative decision-maker if the law requires. This means that the judge may not be able to jump in and fix mistakes even if the judge thinks the decision is wrong. The judge may be required to hold back and not second guess the administrative decision-maker unless the mistake is very obvious and serious.
The standard on which the judge reviews the decision is called the “standard of review”. The standard of review can change depending on the decision under review and the issues in the case. Figuring out what standard of review the judge will apply can be complicated, so you might want to get legal advice. But it is important to understand going in that the judge may be required to defer to the administrative decision-maker and uphold a decision even if the judge thinks the decision is wrong or the judge would have decided the case differently.
3. JR wins go back to administrative decision-maker
The third rule is that the judge reviewing a decision is generally not going to make a brand new decision about your case even if the judge finds a mistake. If the law says that an administrative decision-maker is supposed to make the decision, the judge will generally send the case back to that administrative decision-maker to make a new decision. For example, suppose a judge finds that the Residential Tenancy Branch made serious mistakes evicting you from your home. It’s unlikely that the judge will just say you should not be evicted. Instead, the judge will likely tell the Residential Tenancy Branch to make a new decision without making the same mistakes. Importantly, there is no guarantee that you will win the second time around.
4. No new evidence on JR
This leads to the last rule. A judge will generally only consider the evidence and arguments that were raised in the original hearing or that were part of the decision under review. The judge will usually not let you file new evidence or make brand new arguments for the first time in court. Again, this is because the judge’s job is to review the decision that was actually made, and not to make a brand new decision from scratch.
Judicial review is an important legal process that provides checks and balances on administrative decision-makers. However, judicial review is not a fix-all solution for many legal problems. It is important to understand the ground rules to avoid frustration, and possibly making a bad situation even worse.
If you’d like to learn more about how to do your own judicial review, please visit JRBC.ca. If you need legal advice about filing for judicial review, please see our Get Legal Help page to see if CLAS can assist you.