A new Supreme Court of Canada decision could have consequences far beyond the federal ethics dispute that brought the case before the Court. In Episode 463 of Driving Law, Kyla Lee and Paul Doroshenko discuss what the ruling says about governments attempting to restrict judicial review of administrative decisions—and why it may eventually matter to drivers dealing with ICBC’s Enhanced Care system.
The case arose from an Ethics Commissioner investigation connected to the WE Charity controversy. The legislation governing the commissioner attempted to limit judicial review to narrow questions of jurisdiction. The Supreme Court of Canada concluded that governments cannot simply legislate away the courts’ constitutional role in supervising administrative decision-makers.
Kyla and Paul explain that governments may still create internal appeal or review systems. Courts may also require a person to use those processes before seeking judicial review. However, an internal process must offer a meaningful remedy. A review that can identify an error but cannot correct the decision does not provide effective oversight.
The decision may have implications for British Columbia’s Civil Resolution Tribunal, which handles disputes arising under ICBC’s Enhanced Care regime. Different provisions of the Civil Resolution Tribunal Act prescribe standards for reviewing tribunal findings and discretionary decisions. Some accident-related provisions go further by limiting when a court may set aside findings of fact or interfere with the tribunal’s discretion.
Kyla argues that these provisions may function like privative clauses dressed up as standards of review. In some circumstances, a claimant may need to show that a decision was arbitrary, made in bad faith, based predominantly on irrelevant considerations, or made without regard to statutory requirements. That creates an extraordinarily high barrier for people already challenging an ICBC or tribunal decision.
The episode also explores the broader “tribunalization” of the justice system. More disputes are being moved away from courts and into government-created administrative systems. While tribunals can resolve matters more efficiently, serious concerns arise when legislation restricts meaningful judicial supervision or makes errors nearly impossible to correct.
The Ridiculous Driver of the Week takes the discussion to Abbotsford International Airport, where a motorhome allegedly crashed through the airport’s perimeter fence and continued onto an active runway. Air traffic controllers instructed approaching aircraft to pull up and go around while police responded. The driver was initially arrested for dangerous operation of a motor vehicle and mischief, although Kyla and Paul discuss several additional Criminal Code and Aeronautics Act offences that could potentially arise from the incident.
