Challenges to Government Decisions

When a citizen believes that the government has made a decision, or done an action, which they were not allowed to do under Legislation, he or she may be able to ask the Courts to overturn the government decision, or undo the government action. 

There are three main ways that this can be done. 

·          Sometimes a statute provides a method of appealing the decisions made under it.  Such a “statutory appeal” may allow a person affected by the decision to appeal to the Courts, or perhaps to a tribunal (a group of decision-makers appointed under legislation). 

·          Where the Statute under which the decision is made does not provide an avenue of appeal (or at least no appeal rights available to the person complaining about the decision) then it is necessary to resort to the ability of courts to oversee government decisions, known as “judicial review.”

·          If the government decision actually violates the Canadian Charter of Rights and Freedoms, or other requirements of the Constitution Acts, it may be possible to bring a petition to the Court challenging the government decision.  This is called a “Charter” or “Constitutional” Challenge.

Statutory Appeals

Exactly how a statutory appeal works will depend on the specific statute that creates the appeal rights.  Sometimes they will allow the appeal court or tribunal to hear any and all new evidence, and will not give the original decision any special status.  In other statutes the appeal court or tribunal will be limited to hearing evidence that was before the original decision-maker, and will be limited to sending an incorrect decision back to the original decision-maker for reconsideration.  In all cases there will likely be strict time-lines about when an appeal can be brought.

Consequently it is difficult to say much about statutory rights of appeal here.  Many are discussed in more detail in the pages discussing individual statutes. 

However, a watershed protection advocate should be aware that if he or she has a right of appeal under a statute, then that right must generally be pursued before “judicial review” (see below) becomes an option.  It is only if the watershed protection advocate has no effective right of appeal that a judicial review becomes possible. 

Judicial Review

Courts have always maintained that they have an “inherent jurisdiction” – or the ability simply because they are courts – to oversee government action.  In a judicial review, the Courts cannot interfere with a government decision just because they disagree with it or feel that a different decision should have been made.  However, the Courts can intervene when a government decision is:

·          Made for a purpose, or in a manner, which is contrary to the Legislation authorizing the government decision;

·          Contrary to “procedural fairness” and the Act does not remove the requirement of procedural fairness.  Procedural fairness is based on the understanding that even if Legislation does not explicitly require a decision-maker to hear and fairly consider the rights of affected parties, the Legislature/Parliament must have implicitly intended such a requirement.  Procedural fairness generally involves a requirement to hear from those directly affected by a decision and to make an unbiased decision, although its content varies depending on the type of decision being made.

Because of the focus on compliance with Legislation and on procedures, successful challenges to government decisions often do not focus on the right decision for the watershed, but only on compliance with legal requirements.  Consequently, in many cases the government will be able to remedy the error that occurred simply by repeating the process again, correctly.  Except in those rare cases where there is no legal power to do what the government decision-maker wants, or where the action itself is contrary to the Constitution, the final resolution will need to be political – not legal.  Having said that, the delay brought on by a challenge to a government decision can be useful, if the political landscape changes in the meantime. 

Judges will usually not substitute their own assessment of the situation for that of a decision-maker, and will rely upon the decision-maker’s findings even when some might question whether the Legislation was intended to create that result.  Judges are especially reluctant to interfere with decisions made by specialized decision-makers, or where a Statute specifically instructs the courts not to interfere (the Courts will still interfere if the decision complained of is totally outside the authorizing Statute, but will be more reluctant to do so).  The exact likelihood of a positive decision will depend on many factors, and it will probably be necessary to hire a lawyer to look at the merits of a particular judicial review. 

The Judicial Review Procedure Act governs challenges to provincial decisions, which are brought before the B.C. Supreme Court.  The Federal Court Act governs challenges to federal decisions, which are heard by the Federal Court (Trial Division). 

Constitutional Challenge

Section 52 of the Constitution Act, 1982 provides that any law that is contrary to the Canadian Constitution is of no force and effect.  This means that laws can be challenged if the rights of Canadians as guaranteed under the Canadian Charter of Rights and Freedoms, or if the federal government tries to regulate in an area that the Constitution Act, 1867 gives to provincial governments, or if there is some other violation of the Constitution. 

Constitutional Challenges should be initiated by people directly affected by the law or decision that is challenged.  However, in cases where no-one is directly affected (or where everyone is equally affected) the courts may allow a Constitutional Challenge on the basis of “public interest standing”, where that is the only realistic way to get the issue before the courts. 

For more information on Challenging Government Decisions:

·          “Reviewing Original Decisions” – a Discussion Paper (in pdf format) released B.C.’s Administrative Justice Project.  Although aimed more at how to draft legislation then how to challenge decisions, it provides some background on both statutory appeals and judicial review. 

·          The Administrative Justice Project has been set up by the B.C. Government to assess ways to improve how government decisions are made and how they can be challenged.

·          An article on judicial review in the United Kingdom entitled “What is a Judicial Review” by Belinda Schwehr (1997) provides some context for understanding judicial reviews.  However, it is NOT entirely consistent with Canadian case law (for example, the reference to a 3 month time-limit is inaccurate in the Canadian context).

·          “Judicial Review Sub-Index” of the Canadian Administrative Law Digest website – This index lists technical concepts of relevance to judicial review, and links to excerpts from relevant court decisions.   It is very technical and not for the weak of heart.

·          Constitution Acts – the written documents that are the source of Constitutional Challenges.