Tribunal Practice

a written statement of an adjudicator's disagreement with the decision of the majority of adjudicators on a court or tribunal panel, usually setting out the reasons why the adjudicator would have reached a different decision

a legally enforceable remedial measure issued by a government official, tribunal, or court; sometimes used to refer to the decision of a tribunal

The relief given to an innocent party to enforce a right or compensate for the violation of a right.

of a decision, to hold back a decision following a proceeding to allow for further consideration of the matter by the court or tribunal and the release of the decision at a later time

To ask a higher court to review the decision and determine if justice was done

There is one correct answer to the question. A court will not show any deference to the decision-maker's reasoning but will follow its own analysis.

(n.) courteous yielding to the wishes and ideas of another person; great respect marked by submission, as to a superior

Latin term meaning ''having discharged its duty"

appropriate for examination by a court of justice

an official appointed to investigate individuals' complaints against maladministration, especially that of public authorities.

A defect is so obvious that there is no doubt that the decision was defective

attempts to restrict or prevent review by a court of the actions/decisions of an agency

It is a review by the tribunal itself; also called "rehearing" or "reopening"

Criteria established by the courts for evaluating equal protection of the laws

The tribunal's decision will be accepted if it is based on a reasonable interpretation of the facts or law

To avoid making errors in their decisions, a tribunal may state a case by asking a court to clarify/resolve an important legal question

Right to state the case must be provided for in a tribunal's governing statute

Generally, agencies other than tribunals may not state a case

It is an order issued by a tribunal/court suspending the decision being challenged
In most cases, a challenge does not automatically stay the operation of an order
A tribunal or court will usually stay a decision until the challenge has been decided or abandoned

Test for granting a stay:
The decision-maker must be convinced that:
There is a serious issue to be determined
Irreparable harm will be suffered if a stay is not granted
The balance of convenience favors granting a stay

a judgement issued by a court stating that a government authority is violating the law.

an order issued by a court that restrains a person or business from doing some act or orders the person to do something; may be permanent or temporary

Latin. A writ issued by a higher court to a lower court commanding or mandating that a certain thing be done.

violation of law

An order in an application for judicial review may be called a prohibition

A government body that brings charges against a person accused of breaking the law

Treating the order as an order of the civil court and using civil court procedures to obtain compliance

Treating violation of the order as an offence and prosecuting the violator in a criminal court proceeding

Treating violations as contempt and initiating contempt proceedings in a superior court

Identify the issues to be settled
Obtain relevant information from the person who will be directly affected by the decision
Apply the agency's policies, guidelines, or criteria to the facts
Consult other persons whose interests may be affected by the decision

identifies the issue(s) raised by the parties in the course of the hearing

reviews and weighs the evidence presented at the hearing

reviews the arguments of the parties

makes findings of fact based on the evidence

determines the law/policies/guidelines that apply to the facts

applies the law, policies, and guidelines to the facts

writes the decision and the reasons for the decision

A tribunal may inform the parties of its decision immediately after the hearing or may reserve its decision

The governing statute may require a unanimous decision

The governing statute may provide for a tie-breaking vote

If the first two do not apply, the hearing must be held again

Decision-makers may rely on any relevant information

Decision-makers can only base decisions on evidence obtained during the hearing, excluding:
Facts that are so commonly known that they are not disputed by reasonable people
Facts that can be immediately/accurately demonstrated by reference to readily available/reliable sources

the issue(s) addressed in the case

a summary of the evidence

findings of fact based on the relevant evidence

a statement of the law and any applicable policies
and guidelines

Agency acted outside its jurisdiction
Agency failed to take an action that it was legally obligated to take
Agency improperly delegated a decision
Agency failed to consider options it was obliged to consider in exercising its discretion
Agency misinterpreted the applicable law
Agency acted in bad faith
Agency failed to follow fair procedures

reconsideration, appeal, judicial review, or review by internal/external monitoring official/agency

Time limit is usually specified in rules of procedure

Statutory time limit

Time limits vary from province to province
The Federal Courts Act provides for a 30-day time limit

Parties in a tribunal proceeding can usually apply

Interveners may be permitted to apply at the discretion of the court

For decisions of non-tribunals, the applicant must generally have a direct and substantial interest

Correctness: There is one correct answer to the question

Reasonableness simpliciter: The tribunal's decision will be accepted if it is based on a reasonable interpretation of the facts or law

Patent unreasonableness: A defect is so obvious that there is no doubt that the decision was defective

Reasonableness: Still applies

Correctness: A court will not show any deference to the decision-maker's reasoning but will follow its own analysis

Patent unreasonableness: Only applies when a statute explicitly states that it applies

Statutory right of appeal or privative clause

Expertise of the tribunal

The purpose of the legislation and the specific provision interpreted or applied by the tribunal

The nature of the question (fact, law, mixed fact and law)

Presence or absence of a privative clause

The purpose of the tribunal

The nature of the question at issue

Statute may deem the tribunal's order to be a court order
If not, the injured party or tribunal must apply to a civil court

A statute may provide that failure to obey a tribunal's order is an offence
The party who will benefit from the order, the government or others, may prosecute the violator

Violation of the order as a breach of a civil court order
Statutory provisions stating contempt is an available remedy
The inherent common-law right of superior courts to protect the integrity of tribunal decisions

An injunction is appropriate where the person violating a tribunal order is not a government decision-maker.

If the violator is a government agency, an injunction may be available through judicial review.

An order in an application for judicial review may be called a prohibition or an injunction.

An application for judicial review may result in a mandamus

Where a mandamus is not available, an applicant may request a declaration that a government is violating the order.

Superior courts have inherent authority
Inferior courts must have statutory authorization