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Judicial Review of Government Decisions(Or, sometimes, you can fight City Hall) Routinely, government officials and public authorities make decisions which impact citizens. The Superintendent of Motor Vehicles may to decide to suspend a person's driving privileges because of poor driving habits or, perhaps, a medical condition. A District Forest Manager may to decide whether to suspend a road permit, or impose a trespass penalty. A city employee may refuse to issue a building permit, or a business license. A school board may decide to shut down a particular school. An approving officer may decide to approve a subdivision on certain terms, or may refuse approval. The list is endless. To one degree or another, there is a political element to these decisions. In the case of an elected school board, the decision to close a school is quite clearly a political one. If the voters believe that the decision is an unwise one, then they can elect new board members at the next election. Even decisions made by unelected bureaucrats have a political element, in that those bureaucrats report ultimately to elected officials, and take their general directions from those elected officials. So, what are a person's remedies if he is dissatisfied with a governmental official's or public authority's decision? The answer may lie in the area of law called "judicial review". Generally speaking, the Courts enjoy what is called a "supervisory jurisdiction" over government decision-makers. Particularly, the type of decision-makers over which there is jurisdiction are called "inferior tribunals", and they would include a government minister, a city council, a tribunal such as the Labour Board or the Motor Carrier Commission, or even an individual bureaucrat like a building inspector. Judicial review is a unique area of law, generally found within the broader area called "public law". One of the unique qualities about judicial review is this: the Court will not examine the wisdom (or the rightness) of the decision brought before it. The Court does not ask itself, "If I had to make this decision in the first place, then what would I have decided?" So, for example, no Court will decide whether a school should be closed or not. No Court will decide whether it is wise to issue a logging permit or not. Similarly, the Court does not decide whether the original decision was right or wrong. In fact, the Court's approach towards judicial review is to examine everything but the wisdom of the original decision. What does a Court consider in judicial review lawsuit? Depending upon how the lawsuit is framed, the Court may examine several questions. One question is this: does the decision-maker have the authority necessary to make this type of decision? For example, the Superintendent of Motor Vehicles in British Columbia could not prohibit a person from driving in Alberta. Nor could a City Council rezone private property exclusively as a park - this is effectively expropriating the land. If a decision-maker can legally make a particular decision, then the Court may examine the procedure by which that decision is made. So, for example, a person who is affected by a government decision is often entitled to some sort of "opportunity to be heard". The right to be heard varies in proportion to the seriousness of the decision being made. In a matter of some importance to a citizen, there may be a right to participate in a hearing where witnesses are called and evidence is given under oath, including the evidence of the party affected. In less serious matters, the right to be heard may be simply the right to submit a letter or other document. For example, that is the usual procedure where the superintendent intends to prohibit a person from driving. For some decisions, there is no right to be heard. For example, if the government needs to decide which supplier that it will purchase its widgets from, it may make that decision without giving any potential supplier an opportunity to be heard. Another question that arises is this: did the right person make the decision? For example, if the Local Government Act indicates that a certain decision shall be made by a City Council, then only that City Council can make the decision, not a committee of the City Council, not the Mayor, and not the Fire Chief. Sometimes a decision-maker is accused of "fettering his discretion". This is not easy to describe. But, for example, if a decision-maker is directed by the law to make decisions that are appropriate to the unique facts of the situation, and yet that decision-maker blindly follows a policy that has been established and which may not be appropriate in any particular case, then it can be said that his discretion has been fettered. Often the Court asks itself: did the decision-maker make its decision based upon irrelevant considerations? For example, to revoke a restaurateur's liquor license because of his religious affiliation would fit within this category. One's religious affiliation is irrelevant to one's ability to dispense liquor. Similarly, a Court may ask: did the decision-maker fail to take into account relevant considerations? Obviously, if an important part of the equation is overlooked or ignored by the decision-maker, then one will have doubts as to whether the decision was properly made. Occasionally the Court will embark upon other inquiries. Was the decision-maker biased, or is there at least the appearance of bias? Did he act in bad faith or with malice? Has there been a breach of a person's constitutional rights under the Charter of Rights and Freedoms? Has an applicant been unfairly singled out for special treatment? Has the decision-maker abused his discretion? Has the decision-maker made his decision prematurely? There are a number of other important considerations when considering a lawsuit for judicial review. Significantly, judicial review is a discretionary remedy. In other words, a Court is fully entitled to refuse to hear a judicial review application. When will it do this? Often a statute provides for its own methods of appealing a decision. Examples of this are found under the Worker's Compensation Act, the Employment Insurance Act, the Labour Code, and the Forest Practices Code. So, a decision by an official of the Worker's Compensation Board can be appealed to the Worker's Compensation Review Board. A decision by the District Forest Manager can be appealed to the Regional Forest Manager, and from there to the Forest Appeals Commission. Where these sorts of appeal provisions exist, the Court is inclined to reject judicial review and to instead direct that the applicant avail himself of the appeal provisions. Sometimes a Court will refuse judicial review because an applicant has been slow in challenging a decision. If the Court agrees with the applicant and finds that a decision is reviewable, what is the result? Again, one must remember that the Court will not ask itself, "what would I have done if I had to make this decision in the first place?" Certainly, if the Court finds that the decision was wrongly made in the first place, it will not then make the decision itself. Instead, the Court may quash the decision, with the effect being that no lawful decision was previously made by the decision-maker. Or, the Court may remit the decision back to the decision-maker and, in essence, ask the decision-maker to re-decide the matter. In the re-deciding process, the decision-maker will have to bear in mind the comments made by the Court when it reviewed the decision in the first place, so that the decision-maker proceeds properly. If the Court finds that the initial decision was improperly made, will it ever order financial compensation to the party affected by this decision? Yes, but rarely. Generally speaking, if a decision-maker acts honestly and reasonably, but incorrectly, the Court will not hold that decision-maker or the Government liable for a money award. (This is not to be confused with the fact that a successful judicial review application to the Court will result in an award of costs to the applicant, as some compensation for the applicant's legal expenses.) Where the decision-maker acts dishonestly, or abusively, or where he puts his personal interests at stake, the Court may also consider a money award. There is another approach to suing the government for a money award, but that arises in the broad area of "private law". A government official, like any person, cannot trespass on a person's property or assault or imprison somebody without lawful excuse. As a consequence, if a lawsuit can be based upon an ordinary private law claim such as breach of contract, trespass, nuisance, false imprisonment, or negligence, then a money award may result. Really, though, the lawsuit is based upon a separate, private law claim that is usually quite unrelated to the judicial review, public law claim. Lastly, the topic of judicial review must include a reference to the phrase curial deference. Essentially the Court is inclined to take a hands-off approach in areas where the decision-maker has some special talent or experience which the Court does not have. So, a Municipal Building Inspector may have to deal with and interpret the Building Code on a daily basis, and a Court will be extremely reluctant to suggest that the decision-maker was wrong on such matters. Nor will the Court tell a District Forest Manager how to manage the forest. In these areas of specialization, a Court is extremely reluctant to interfere by way of judicial review. March 2003 - by John Drayton Back to Articles Index
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