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.

Internal Appellate Review: the Role of the New Refugee Appeal Division

I made a presentation last week to the members of the new Refugee Appeal Division and their legal advisers. The RAD hears appeals from the Refugee Protection Division: most of the relevant statutory provisions are contained in Part IV of the Immigration and Refugee Protection Act.

One of the questions the members of the RAD have been asking themselves in their decisions to date is whether they should be deferential to findings made by the RPD. My presentation focused on this. My answer was a heavily qualified yes: the RAD should show some deference to the RPD, but it should not apply rigidly tests developed for review by courts of administrative decisions.