In every industry people make mistakes, but there’s only one industry where people sit around and debate whether or not mistakes should be corrected. In the world of courts and administrative tribunals people worry about whether correcting a mistake would undermine the autonomy of the mistake maker or otherwise reflect poorly on the mistake maker’s “expert” status.
If you ask me a mistake is a mistake. If a mistake can be corrected, it should be. A mistake should be considered an even bigger problem if it affects someone’s human rights, livelihood or dignity. Unfortunately, I am but a mere mortal and mere mortal mistakes are treated differently than those of the “experts” at administrative tribunals.
In a 2013 speech to the Council of Canadian Administrative Tribunals, Chief Justice Beverley McLachlin said that when tribunals were set up, it was important to ensure that they stayed within the boundaries of their mandates and held fair hearings. For this reason, the courts were given oversight in the form of “Judicial Review.” However, she recounted that in the early days the system was highly confrontational with courts questioning the interpretation of the statutes and legislators entering privative clauses to prevent courts from overturning tribunal decisions.
McLachlin said there was a correction over time with courts realizing that tribunals were doing important “policy” work.
Over time, she said the courts came up with standards of review, including “correctness” for legal issues which is a lower standard of review and “reasonableness” for other errors, including errors of fact.
To people who rely on the English language to communicate in a normal faction, the word “reasonableness” would seem to mean that any fact reported by a Tribunal that is not true cannot be reasonable and, therefore, one would have to throw out decisions based on those false statements. However, this is not what reasonable means in a court. It actually means a very high standard of deference and so the judge can accept things that aren’t proven by evidence or testimony or even disproved by the evidence.
This seems to me extremely problematic as it seems to suggest that a tribunal can disregard facts in order to write new policy.
And what happens if the policy is cost cutting at the expense of what the legislation was enacted to accomplish?
Cost cutting would seem to be the reason why so few human rights complaints filed with the BC Human Rights Tribunal make it to a hearing. If the policy is that the Tribunal wants to keep costs low, then it makes sense for them to lie about facts, because they know that if it proceeds to a Judicial Review, the judge can very easily throw out a complaint that the Tribunal did not get the facts right.
Therefore, policy can be re-written based on facts that aren’t even true. That’s a very scary thought for anyone who cares about human rights.