BarTalk August 2004
Volume 16, Number 4

Modernizing BC’s administrative justice system

By The Honourable Geoff Plant, QC, Attorney General of British Columbia

The new Administrative Tribunals Act, given Royal Assent on May 20, 2004, is the most recent of the administrative justice reform initiatives introduced to modernize B.C.’s administrative justice system. The new Act reflects the government’s inter-related goals of ensuring independent decision-making and public accountability.

The Act is the product of extensive consultation with tribunals, the legal profession and other stakeholder groups on the widely circulated discussion paper, “Model Statutory Powers Provisions for Administrative Tribunals”, which examined B.C.’s tribunal processes and made recommendations for change.

The Act’s approach is innovative, with a series of general reform provisions comprising a “menu” of options which are then selectively applied to tribunals by consequential amendments to their specific enabling legislation, reflecting each tribunal’s particular mandate and needs. The Act also incorporates the provisions of the Administrative Tribunals Appointment and Administration Act (the ATAA Act). The general reform provisions, together with certain consequential amendments, were proclaimed on June 30, 2004, with proclamation of the balance of the consequential amendments and repeal of the ATAA Act expected later this year.

The general reform provisions include clear authority for various tribunal processes, coupled with enhanced public accessibility. For example, tribunal rule-making authorities are coupled with the requirement to make those rules publicly accessible. Alternative dispute resolution is also now available to many tribunals as a less formal and costly approach.

This legislation also responds to the courts’ invitations to provide clear indication of legislative intent in two often contentious and frequently litigated areas of administrative law: the standard of review and constitutional jurisdiction.

On the first, the standard of review, the Act takes two approaches, depending on whether the tribunal’s expertise is recognized by a statutory privative clause. The clear direction to the courts on the standard to be applied in each case (patent unreasonableness or correctness) is intended to limit uncertainty in judicial review proceedings.

Similarly, regarding constitutional jurisdiction, consequential amendments make either section 43 (full constitutional jurisdiction), 44 (no jurisdiction) or 45 (limited: no Charter jurisdiction) applicable to a particular tribunal. Section 44 (no constitutional jurisdiction) is made applicable to most tribunals, acknowledging that these tribunals have expertise in their core areas of responsibility – medicine, finance or social policy, for example – but recognizing the highly specialized nature of constitutional litigation and the extensive commitment of resources to deal with them in an effective way. The intent is that, for the most part, these issues are to be resolved through the courts, allowing tribunals to focus on the work they do best.

The members of the administrative justice community who offered their ideas and creativity in the consultations on the Act greatly assisted in developing legislation that will serve British Columbians and the administrative justice system with enhanced fairness and efficiency.

This article was published in the August 2004 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2004, all rights reserved.