Friday, 3 January 2014

Internal Standard of Review: A Promising B.C. Decision

I have posted before about the standard of review where an administrative decision-maker reviews another decision-maker: see especially here and also here and here. There are two important matters, in my view. First, the appellate administrative decision-maker is not limited to a choice between a full de novo hearing and a judicial-review type proceeding: there is rather a spectrum of options created by the interaction between the wording of the legislation and the substantive characteristics of the respective decision-makers. Second, a reviewing court should defer to the appellate administrative decision-maker on its choice.

In a very intelligent judgment in BC Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331, Grauer J. recently discussed these two matters. Here, an adjudicator at the FIRB allowed an appeal by an animal owner, whose animals were apparently neglected, from a decision of the SPCA.

Grauer J. persuasively criticized the decision of the Alberta Court of Appeal in Newton v. Criminal Trial Lawyers’ Assn, 2010 ABCA 399:
[31]        The problem with Newton, as I see it (apart from the fact that it appears never to have been followed outside of Alberta), is that it turns on the interpretation of a very different statute regarding an appeal process that may appear, superficially, similar to the one here, but is in fact quite different — involving, as it does, professional discipline.  Like McKenzie, Newton considered only the alternatives of a “true appeal” and a “de novo hearing”, a dichotomy to which we are not limited.  I also consider, with respect, that the Alberta Court of Appeal’s reasoning on the standard of review of a tribunal’s decisions is inconsistent with subsequent pronouncements of the Supreme Court of Canada, discussed below.
On the first matter, Grauer J. outlined the approach taken by the FIRB:
[25]        The FIRB thus rejected the “true appeal” model – favouring not a hearing de novo, but rather a more flexible approach that maintained the onus on the appellant to justify overturning the Society’s decision, but did not necessarily defer to that decision through application of a “reasonableness” standard.  A “correctness” standard would be applied, not limited to the record before the Society, but taking into account all relevant factors including any material changes that occurred during the appeal period.
On the second matter, Grauer J. identified (at para.37) the standard of review as reasonableness on the (surely incontestable) basis that FIRB was interpreting its constitutive statute. Once this was established, the conclusion that FIRB's approach to its appellate function should be upheld followed irresistibly:
[38]        In my view, given the comprehensive nature of the scheme of review and appeals that the legislature inserted into the PCAA, the goal of transparency, the aim of providing a review process at arm’s-length from the SPCA, the wide powers given the FIRB, and the dual role of the SPCA in not only conducting the first review of its own decision, but also then participating as a party in the review before the FIRB, the FIRB’s interpretation is not only well within the range of reasonable results, but is the only reasonable interpretation. 
On the merits, FIRB had acted reasonably in requiring the SPCA to return the dogs to their own. Although the dogs were unwell, FIRB reasonably required more than evidence of neglect; its view that the purposes of the legislation required a causal nexus between neglect and acts or omissions of the owner was reasonable, as was its view that it had the power to decide the matter conclusively without remitting it for a further hearing:
[48]        Once again, I am satisfied that the appropriate standard to be applied to the review of this decision is reasonableness.  Mr. Van’t Haaff’s reasons provide ample justification for the outcome he reached, and it is obviously within the range of possible outcomes.  I am unable to accept the SPCA’s position that the decision was unreasonable on its merits because, for instance, the FIRB took a “fault-based” (I would call it “causation-based”) approach in reviewing the evidence in contrast to Ms. Moriarty’s approach of simply looking at whether the dogs had been “neglected”.  I consider that the approach taken by Mr. Van’t Haaff was well within the scope of his authority and expertise, and that his analysis more than justified his conclusion.  It satisfies the goal of “justification, transparency and intelligibility in the decision-making progress” promoted by the Supreme Court of Canada in Dunsmuir at para 47 and in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), 2011 SCC 62, [2011] 3 SCR 708 at paras 1, 11, 14 and 18.
Both FIRB and Grauer J.'s approaches seem persuasive to me. They deserve careful consideration by administrative decision-makers and reviewing courts.

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