Asking the court to review the tribunal decision
Last updated: February 6, 2024
- Grounds for review
- Standard of review
- Time limit
- Applying for judicial review
- More information
You can file a judicial review application in BC Supreme Court. In judicial review, the Court looks at the Tribunal’s decision or process to decide whether there is a “ground” for review.
Grounds for review
You must show the Court that the Tribunal:
- Made an “error of law”, such as interpreting the Human Rights Code incorrectly.
- Made a finding of fact based on no evidence, or that is otherwise unreasonable, in light of all the evidence.
- Exercised its discretion in a patently unreasonable way, by exercising it arbitrarily, in bad faith, or for an improper purpose, basing the decision entirely or predominantly on irrelevant factors, or by failing to take statutory requirements into account.
- Had an unfair process.
To learn more about the tests that the court applies, see Standard of review
If the Tribunal made any of these errors, the Court will make an order “setting aside” the decision. Usually, the Court will make an order telling the Tribunal to reconsider the matter without making the same error. In some cases, the Court will stop the Tribunal’s process.
Standard of review
The “standard of review” is the test the court applies to decide if it can give a remedy. Usually, the remedy is to set aside a tribunal’s decision.
For the BC Human Rights Tribunal, the tests are set out in section 59 of the Administrative Tribunals Act.
There are four tests. The test depends on the kind of question the tribunal is answering.
- “Correctness”: if the tribunal is answering a question about its powers (called “jurisdiction”) or what the Human Rights Code means, the court can give a remedy if it decides if the tribunal was not correct
- “Unreasonableness”: if the tribunal is finding a fact after a hearing, the court can only give a remedy if there is no evidence to support the finding of fact or if the finding of fact is unreasonable
- “Patent unreasonableness”: if the tribunal is making a “discretionary decision” (described below), the court can only give a remedy if the decision was “patently unreasonable”. Most of the tribunal’s decisions are discretionary.
- “Unfairness”: this applies only to the tribunal’s process. The court can give a remedy if the tribunal’s process was unfair.
Learn more about what kind of question the tribunal decided and what test applies:
- Discretionary decisions
- Findings of fact
- Questions where the tribunal must be correct
- Procedural fairness
Section 57 of the Administrative Tribunals Act says that you must start a judicial review of a final decision within 60 days of the date the decision was issued. The Court may extend the time in limited circumstances.
Applying for judicial review
In BC Supreme Court, judicial review is governed by Supreme Court Rule 16-1. You must follow that rule, including doing the following:
- Prepare a petition that sets out the orders you want the Court to make and the grounds of review.
- Prepare an affidavit and attach the decision you want the Court to review, and any materials that were in front of the Tribunal that you need to show the Court that the Tribunal made an error.
- Pay a fee to file your petition and affidavit in BC Supreme Court.
- Serve a copy of your filed petition and affidavit on the other parties, the Tribunal, the Attorney General of British Columbia, and any person whose interests may be affected by the order you want the Court to make.