All the key Judicial Review terms explained in one place.

By Isaac Won, Community Law Program Lawyer

A B C D F G J M N O P R S W

A

Administrative Tribunal – An administrative tribunal is a legal decision-maker that is not a court but often uses a court-like process to decide disputes. Examples of administrative tribunals include the Human Rights Tribunal, Employment Standards Tribunal, and Residential Tenancy Branch. Read our Intro to JR: Administrative Tribunals blog for more info.

Affidavit – An affidavit is a written statement that is sworn to be true and accurate in front of a person authorized to commission affidavits, usually a lawyer or notary. Affidavits are usually used in court as a replacement for testifying before the judge, so it is very important that the person giving the affidavit confirms everything it contains is true. Lying in an affidavit is like lying in testimony and can be punished severely by the Court. Read more about affidavits for RTB Judicial Reviews or other Judicial Reviews.

Application – An application is a request to the Court to make a legal order that someone either do something or be forbidden from doing something. The most common kind of application in a judicial review case is an application for a stay, however, applications can also be made for directions about when and how the case should be heard, to compel one side to give the other documents, or anything else a judge has the power to do.

B

BCSC Rules – The Supreme Court Civil Rules (also called “Rules of Court” or “BCSC Rules”) set out the rules for Supreme Court cases, such as the deadlines for filing documents and the proper forms to use. The rules can be difficult to understand, but it is important to remember that almost anything you want to do in your case will have at least a rule or two that governs it.

C

Costs/Special Costs –Costs, also called Court Costs, are the amount of money that the loser of a case has to pay the winner to compensate them for the costs of going to court. The amount of costs the loser has to pay depends on the length and complexity of the case, but is usually more than a couple thousand dollars. Special costs are like regular costs but are generally awarded to punish a party for misconduct.

Court Bailiff – A court bailiff is someone who is legally authorized to enforce court orders from civil cases, such as eviction orders (writs of possession). A court bailiff should be knowledgeable about their legal requirements and will generally have identification proving they are a court bailiff. There are only a few court bailiff companies in BC. Anyone who is not an authorized court bailiff has no legal authority to carry out an eviction, even if the landlord has a valid writ of possession.

D

Deference – Deference is an important idea that requires a judge to approach a decision on review with significant respect and recognition of an administrative tribunal’s authority. This concept is why a judicial review is not just a do-over of the original case, but instead considers whether the original decision was so wrong that it must be overturned.

F

Fee Waiver – A fee waiver is an application a party can make in the BC Supreme Court for an order from a judge or master that they do not have to pay filing fees, either for part or all of a case. Fee waivers are governed by BCSC Rule 20-5. To be approved for a fee waiver, a party technically needs to either show that a) they receive provincial or welfare disability benefits, or b) cannot afford to pay the filing fees without undue hardship, but has the best chance of success if they can show both. A fee waiver application requires an affidavit from the applicant explaining their financial situation. For more information, see our Judicial Review Self-Help Guide.

G

Grounds for Review – the grounds for review are the reasons that the petitioner in a judicial review is saying the decision in question should be set aside. Grounds for review fall into the general categories of the decision being decided in a procedurally unfair manner or being unreasonable or incorrect, whichever is applicable. See our BC Judicial Review Self-Help Guide for more details.

J

Judicial Review – An application for judicial review is an application to a court, in BC usually the Supreme Court of British Columbia, to undo or overturn a decision made by an administrative tribunal, and is like an appeal. A judge of the Supreme Court will decide whether the decision in question contains a serious error (usually on a standard of patent unreasonableness) or was decided in a way that was procedurally unfair. See our BC Judicial Review Self-Help Guide for more information.

M

Master – A Master is a kind of administrative judge that can make rulings on court applications, among other things. You are most likely to encounter a master while making an application for a stay of an eviction. A Master should be referred to as “Your Honour” in court.

N

Notice – A party bringing a case or application to court usually must “give notice” to the other party of that intention.  In other words, you will have to give the other side a copy of the court papers you have filed and tell them when and where the court hearing will happen. The normal minimum period of notice required is 8 business days (not counting the day on which you give notice or the day of the hearing), but in some circumstances you can ask the court to allow you to provide less notice or no notice at all. See our BC Judicial Review Self-Help Guide for more information about giving notice when asking for a stay.

O

Order of Possession – An order of possession, sometimes shortened to OP, is the document that the RTB gives to a landlord (or more rarely, a tenant) stating that the landlord must be given vacant possession of the unit. An OP generally becomes active against a tenant 48 hours after the landlord serves it on them. If the tenant does not leave, the landlord can go to supreme court and use the OP to get a Writ of Possession. A bailiff cannot evict a tenant on the basis of an OP alone – the landlord must also have a Writ of Possession.

P

Party – A party is a participant in a legal case, and all of the participants in a case are collectively called “the parties”. A party generally has a specific name in the case, such as plaintiff, defendant, petitioner, appellant, or respondent.

Patent Unreasonableness – An administrative tribunal’s decision will be set aside if the judge who hears the judicial review case concludes that the decision is patently unreasonable. The standard is very high, and a decision will only be found patently unreasonable if it cannot be supported by the evidence in the case, relies on an interpretation of a law that is clearly unreasonable, or is otherwise so mistaken in some other way that is close to absurd. A decision is not patently unreasonable just because one of the parties does not agree with it. A judge may even disagree with the outcome of the decision without finding that it is patently unreasonable. See our “Intro to JR: The Basics of Patent Unreasonableness” blog post and our  BC Judicial Review Self-Help Guide for more detail.

Petition – A petition is the court document used to file a judicial review case (as well as certain other kinds of cases), in which the person bringing the case (called the “petitioner”) sets out the facts and applicable law that the claim is based on. A petition is generally accompanied by an affidavit, which often includes documentary evidence as exhibits.

Prejudice – Prejudice is the legal term for unfairness to a party, usually as a consequence of something a party does or a judge’s decision. For example, if a tenant applies to stay an eviction but refuses to pay the rent, the landlord will be able to argue that allowing the tenant to stay will cause prejudice because they will not be able to collect rent from the unit.

Procedural Unfairness – Procedural unfairness refers to when a decision is made in a way that is unfair to one or both sides, and can be a basis for applying for judicial review. A judge reviewing a decision for procedural unfairness will consider all the circumstances in determining whether the decision was made fairly. While different administrative tribunals have different rules, parties usually can expect to:

  1. Have a basic understanding of the case the other side is going to make,
  2. Call the witnesses and evidence they want, within reasonable limits,
  3. Make basic legal arguments about their case,
  4. Be represented by a lawyer or advocate, if they have arranged this for themselves,
  5. Ask for the hearing to be rescheduled (usually called an “adjournment”) if they have not been reasonably able to prepare for the hearing through no fault of their own

A decision has the potential to be procedurally unfair if any of these expectations are not met. See our BC Judicial Review Self-Help Guide for more detail.

R

Registry – The Registry is the Court’s administrative office, where parties file court documents such as petitions, applications, and requisitions. Every Supreme Court location has a registry located inside the courthouse. Registry staff are not lawyers and cannot give legal advice on cases.

Remitting a Decision – Remitting a decision means sending it back to the decision-maker to re-do, sometimes with specific instructions from the judge about how to deal with a certain procedural or legal issue in the case. If a judge decides that a judicial review of a decision is successful, it is usually remitted. A judge can decide to make their own decision about what should happen with the case, but this is very uncommon.

Requisition – A requisition is a request to the court, similar to an application. However, a requisition allows a party to ask the court to make an order by simply filing the requisition form with the Court Registry instead of speaking to a judge directly. Requisitions are reserved for simple applications, usually involving issues where both parties agree on what the Court should do.

Review consideration – A review consideration, also sometimes called a “reconsideration”, is a request a party can make to the decision-maker to change their decision. Different decision-makers have different rules about review consideration applications, such as what counts as a valid reason to ask for a review consideration and what the deadline is to complete the application.

Rules of Court – See BSCS Rules.

S

Service – Service refers to the act of giving the other party (or parties) in your case a copy of your court filed documents. You cannot serve the other side using unfiled copies of your documents. The Court rules set out what does and does not count as service, as well as when special rules for service apply. For the purpose of a judicial review, we recommend referring to our BC Judicial Review Self-Help Guide for information on how to serve your documents.

Standard of Review – Standard of review is the legal term used to refer to the level of strictness a judge will apply when deciding a judicial review case. The applicable standard of review depends on several factors. There are three standards of review in BC:

  1. Correctness – The strictest form of review. The judge will review the decision based on whether they agree or disagree with the decision, and set it aside if they do not agree with it.
  2. Unreasonableness – The middle ground form of review. The judge will review the decision to see if it is “unreasonable”. A decision is unreasonable, for example, if it is internally inconsistent.
  3. Patent Unreasonableness – the least strict form of review. The judge will review the decision and only overturn it if it is “patently unreasonable”. A decision is patently unreasonable, among other things, if it borders on being absurd or is made without any evidence that could support it.

See our BC Judicial Review Self-Help Guide for more detail.

Stay/ Injunction – A stay is a temporary order made by a judge to put a decision that has been made on hold. In a residential tenancy case, a tenant who wants to file for judicial review to prevent an eviction will almost always need to make an application for a stay of the residential tenancy branch decision. A tenant can also apply for a stay of a writ of possession if the Court has already issued one.

Supreme Court Civil Rules – See BCSC Rules.

W

Writ of Possession – A writ of possession is a court document that allows a landlord to evict a tenant from their rental unit using court authorized bailiffs. To get a writ of possession, a landlord must first get an order of possession from the residential tenancy branch, serve it on the tenant, and wait for a period of time specified in the order of possession (usually two days). Once that period of time passes, a landlord can go to the court registry and file a requisition to obtain a writ of possession. The landlord does not need to tell the tenant that they are doing this and do not need to serve the writ of possession on the tenant ahead of the eviction.