At the risk of stating the obvious, there are numerous types of proceedings which happen daily in our courts.

There are of course trials. In a criminal case that is where guilt or innocence is decided. In civil trials the court is often tasked with determining liability. Appeals also occur daily. Appeals are the process whereby higher courts determine whether any errors were made by the trial court.

The focus of today’s blog is on judicial review hearings. Textbooks have been written about judicial review so we will only deal with the absolute basics here. These hearings are unlike trials and appeals as they involve the court having oversight of external processes. There are a significant number of decision making bodies outside of the courts. The decisions made by these tribunals are subject to review by the courts but often within a narrow framework.

Some examples of entities that are subject to the judicial review process include the Human Rights Tribunal, Residential Tenancy decisions, Governing bodies of various professions, the Superintendent of Motor Vehicles and many more. Federal decision makers such as the Minister of Transport or the Immigration and Refugee board have their decisions reviewed in Federal Court.

The limits to these hearings can be difficult to grasp and are often frustrating for people who have had decisions made that they disagree with. The key thing to grasp about judicial review is that it is not an appeal. Instead it is a review to ensure that the hearing was procedurally fair and that the decision was reasonable. The majority of judicial reviews start from the position that the court ought to give deference to the tribunal and only interfere with the decision if it is unreasonable. Tribunals exist for a reason and the court does not want to usurp their decision making authority. In other words, the court does not want to be making decisions on professional discipline or driving prohibition issues unless they absolutely have to. In this sense the courts act as a safeguard against unfair or seriously flawed decisions but nothing more.

In the majority of cases the court is not asking whether there was an error made. Instead the question is whether the outcome is one that is one of a range of possible outcomes. Even if the decision is different than what the court would have done in the circumstances that is not enough to succeed on judicial review. An applicant will need to show that they were denied a fair opportunity to participate in the process, that the decision was unreasonable or that the reasoning process was manifestly flawed.

To boil that down to a simple proposition, the hurdle to get over to succeed on judicial review is often higher than on an appeal. Having argued many of these hearings one thing has become clear. It is absolutely critical all available arguments and evidence be presented to the tribunal. If arguments aren’t properly developed or supported by evidence that can make it even harder to succeed on judicial review.

If you are involved in proceedings before a tribunal it is essential to get some legal advice to make sure that you don’t unintentionally reduce your odds of success.

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