A judge on judicial review will only overturn a decision of an administrative tribunal if it contains very serious errors. How serious does the error have to be and where does patent unreasonableness fit in? We answer your questions here.

By Isaac Won, Community Law Program Lawyer

Introduction

If you are reading this, chances are you’ve come into contact with the BC Supreme Court’s judicial review process in some way. You’ve been told that you have to show that the administrative tribunal decision you want to overturn is “patently unreasonable”, and you’re here to figure out what that is.

Before we go any further, it is worth noting that patent unreasonableness is complicated. It confuses non-lawyers, lawyers, and even judges. This article will give you the basics, but it is only the beginning of what is necessary to effectively argue that a decision is patently unreasonable. It is best to get help from a legal professional if possible.

Some basic points to know about patent unreasonableness

Point #1: Patent unreasonableness is one of several possible standards of review

“Patent unreasonableness” is one of the levels of error or “standards of review” that you might need to show the court. These are called “standards of review,” because they show what standard the court will use when reviewing the tribunal’s findings.

While the standard of patent unreasonableness applies to many decisions made by administrative tribunals such as B.C.’s Residential Tenancy Branch and Workers Compensation Appeals Tribunal, other standards can also apply. In some cases, more than one standard of review will apply to the same decision, depending on the various issues being dealt with. Knowing what standard applies to your situation is important, and is best confirmed with a lawyer if possible.

Point #2: Patent unreasonableness means a decision can be upheld even if it is wrong

Another important thing to understand is that the standard of patent unreasonableness actually allows a decision maker to be wrong in their decision. Patent unreasonableness applies what is called “deference” to the decision being reviewed. The idea of deference is that administrative tribunals are given the job of deciding certain cases, and judges should not lightly overturn those decisions. Realistically, this means that the judge hearing your case can agree with you that the decision is wrong, and still not overturn it, because he or she does not think the decision is wrong enough, or wrong in the right ways, to set it aside.

Point #3: Patent unreasonableness looks at both the result and the process used to reach it

Whether a decision is patently unreasonable involves looking at both the result and the reasons given for the outcome. This means that a decision can be overturned if the decision’s outcome is patently unreasonable, or if the reasons for reaching that conclusion are patently unreasonable. This means that a decision can be overturned on judicial review, even if the outcome itself is not necessarily unfair or wrong in law.

Patent unreasonableness in practice

What does a “patently unreasonable” decision look like? The case law tells us to look for decisions that “border on the absurd”, are “clearly irrational”, or cannot justifiably be allowed to stand. While it can be hard to tell just what a judge will consider absurd, certain kinds of mistakes have tended to qualify as patently unreasonable errors more frequently than others:

  • the decision comes to a conclusion that has no evidence to support it
  • the decision uses the wrong legal test or interprets the law in a way that is clearly wrong
  • the decision fails to answer a key question in the dispute or does not adequately explain the how the result was reached

A few examples of these errors in past cases are:

Not Patently Unreasonable

In addition to knowing when a decision is patently unreasonable, it can also be helpful to know what issues generally will not be found patently unreasonable. Here are a few examples.

  • The decision maker believed the other side instead of you – decision makers have a lot of power to decide who they will believe or not believe, and these conclusions are rarely overturned by judges.
  • You have found new evidence that affects the case – new evidence cannot make a decision patently unreasonable. However, many tribunals allow a party to apply to have the tribunal reconsider the decision on the basis of new evidence that was not available at the time of the hearing.
  • The other side (or one of their witnesses) knowingly gave false evidence – like new evidence not available at the time of the hearing, many tribunals allow a party to request reconsideration of their decision on the basis that they can prove that the other side gave intentionally false evidence that affected the outcome. However, this usually is not an accepted basis for judicial review.
  • The tribunal process was unfair – problems with the process of the hearing are a separate ground for judicial review called “procedural fairness”, but usually do not qualify as a patently unreasonable error.

Kong v. Lee: A case study in patent unreasonableness

A good way to become more familiar with the concepts of judicial review is to look at past cases and understand how and why judges make their decisions. The decision issued by the Supreme Court in the recent case of Kong v. Lee is a good candidate for this because some parts of the arbitrator’s decision were found to be patently unreasonable while others were not.

In Kong v. Lee, the tenant argued that he had wrongly been ordered to pay compensation to the landlord for failing to clean the unit after moving out. The landlord and tenant disagreed on when the tenant had actually moved out, and the tenant argued that he had been locked out of the unit before being given a chance to finish cleaning it. The judge in the judicial review hearing found the RTB’s conclusion on this issue was not patently unreasonable – the arbitrator accepted the landlord’s evidence, and rejected the tenant’s evidence. As discussed above, decisions about who to believe if the evidence of the two sides conflicts is one that arbitrators have a lot of power to make, and that judges rarely overturn.

The tenant also challenged the RTB’s decision that he had signed an agreement to end the tenancy in exchange for two months of free rent, but was not entitled to receive the free rent because he did not move out on the agreed upon date. The judge found this part of the decision was patently unreasonable. The agreement entitled the tenant to the free rent if he signed the agreement – it did not say that he had to actually move out in order to get it. There was no evidence or logic supporting the arbitrator’s conclusion that the tenant had forfeited the free rent the landlord had agreed to pay him, and accordingly, that part of the decision was sent back to the RTB to be re-decided (judges almost always send the decision back to the RTB to be decided again rather than making their own decision about what should happen in the case).

Summing Up

Patent unreasonableness is tricky to understand, and can apply to a tribunal’s decision in many different ways. Whether or not a decision is patently unreasonable can turn on small and seemingly insignificant details. While the basic principles set out here give you basic tools to identify when a decision potentially is patently unreasonable, it is best to seek assistance from a legal professional to confirm your assessment if you are considering a judicial review.