Administrative Tribunals Act
[SBC 2004] CHAPTER 45 |
29 Disclosure Protection
31 Summary Dismissal
34 Power to compel witnesses and order disclosure
36 Form of hearing of application
38 Examination of witnesses
44 Tribunal without jurisdiction over constitutional questions
45 Tribunal without jurisdiction over Canadian Charter of Rights and Freedoms issues
58 Standard of review if tribunal’s enabling Act has privative clause
61 Application of Freedom of Information and Protection of Privacy Act |
Disclosure protection |
| 29 |
(1) |
In a proceeding, other than a criminal proceeding, unless the parties to an application consent, a person must not disclose or be compelled to disclose |
| |
|
(a) |
a document or other record created by a party specifically for the purposes of achieving a settlement of one or more issues through a dispute resolution process, or |
| |
|
(b) |
a statement made by a party in a dispute resolution process specifically for the purpose of achieving a settlement of one or more issues in dispute. |
| |
(2) |
Subsection (1) does not apply to a settlement agreement. |
| Top |
|
Summary dismissal |
| 31 |
(1) |
At any time after an application is filed, the tribunal may dismiss all or part of it if the tribunal determines that any of the following apply: |
| |
|
(a) |
the application is not within the jurisdiction of the tribunal; |
| |
|
(b) |
the application was not filed within the applicable time limit; |
| |
|
(c) |
the application is frivolous, vexatious or trivial or gives rise to an abuse of process; |
| |
|
(d) |
the application was made in bad faith or filed for an improper purpose or motive; |
| |
|
(e) |
the applicant failed to diligently pursue the application or failed to comply with an order of the tribunal; |
| |
|
(f) |
there is no reasonable prospect the application will succeed; |
| |
|
(g) |
the substance of the application has been appropriately dealt with in another proceeding. |
| |
(2) |
Before dismissing all or part of an application under subsection (1), the tribunal must give the applicant an opportunity to make written submissions or otherwise be heard. |
| |
(3) |
If the tribunal dismisses all or part of an application under subsection (1), the tribunal must inform the parties and any interveners of its decision in writing and give reasons for that decision. |
| Top |
|
Power to compel witnesses and order disclosure |
| 34 |
(1) |
A party to an application may prepare and serve a summons in the form established by the tribunal, requiring a person |
| |
|
(a) |
to attend an oral or electronic hearing to give evidence on oath or affirmation or in any other manner that is admissible and relevant to an issue in the application, or |
| |
|
(b) |
to produce for the tribunal, that party or another party a document or other thing in the person's possession or control that is admissible and relevant to an issue in the application. |
| |
(2) |
A party to an application may apply to the court for an order |
| |
|
(a) |
directing a person to comply with a summons served by a party under subsection (1), or |
| |
|
(b) |
directing any directors and officers of a person to cause the person to comply with a summons served by a party under subsection (1). |
| |
(3) |
Subject to section 29, at any time before or during a hearing, but before its decision, the tribunal may make an order requiring a person |
| |
|
(a) |
to attend an oral or electronic hearing to give evidence on oath or affirmation or in any other manner that is admissible and relevant to an issue in an application, or |
| |
|
(b) |
to produce for the tribunal or a party a document or other thing in the person's possession or control, as specified by the tribunal, that is admissible and relevant to an issue in an application. |
| |
(4) |
The tribunal may apply to the court for an order |
| |
|
(a) |
directing a person to comply with an order made by the tribunal under subsection (3), or |
| |
|
(b) |
directing any directors and officers of a person to cause the person to comply with an order made by the tribunal under subsection (3). |
| Top |
|
| Form of hearing of application |
| 36 |
In an application or an interim or preliminary matter, the tribunal may hold any combination of written, electronic and oral hearings. |
|
Examination of witnesses |
| 38 |
(1) |
Subject to subsection (2), in an oral or electronic hearing a party to an application may call and examine witnesses, present evidence and submissions and conduct cross examination of witnesses as reasonably required by the tribunal for a full and fair disclosure of all matters relevant to the issues in the application. |
| |
(2) |
The tribunal may reasonably limit further examination or cross examination of a witness if it is satisfied that the examination or cross examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the application. |
| |
(3) |
The tribunal may question any witness who gives oral evidence in an oral or electronic hearing. |
|
| Tribunal without jurisdiction over constitutional questions |
| 44 |
(1) |
The tribunal does not have jurisdiction over constitutional questions. |
| |
(2) |
Subsection (1) applies to all applications made before, on or after the date that the subsection applies to a tribunal. |
| Top |
|
Tribunal without jurisdiction over Canadian Charter of Rights and Freedoms issues |
| 45 |
(1) |
The tribunal does not have jurisdiction over constitutional questions relating to the Canadian Charter of Rights and Freedoms. |
| |
|
(1.1) |
Subsection (1) applies to all applications made before, on or after the date that the subsection applies to a tribunal. |
| |
(2) |
If a constitutional question, other than one relating to the Canadian Charter of Rights and Freedoms, is raised by a party in a tribunal proceeding |
| |
|
(a) |
on the request of a party or on its own initiative, at any stage of an application the tribunal may refer that question to the court in the form of a stated case, or |
| |
|
(b) |
on the request of the Attorney General, the tribunal must refer that question to the court in the form of a stated case. |
| |
(3) |
The stated case must |
| |
|
(a) |
be prepared by the tribunal, |
| |
|
(b) |
be in writing, |
| |
|
(c) |
be filed with the court registry, and |
| |
|
(d) |
include a statement of the facts and relevant evidence. |
| |
(4) |
Subject to the direction of the court, the tribunal must |
| |
|
(a) |
to the extent that it is practicable in light of the stated case, proceed to hear and decide all questions except the questions raised in the stated case, |
| |
|
(b) |
suspend the application as it relates to the stated case and reserve its decision until the opinion of the court has been given, and |
| |
|
(c) |
decide the application in accordance with the opinion. |
| |
(5) |
A stated case must be brought on for hearing as soon as practicable. |
| |
(6) |
Subject to subsection (7), the court must hear and determine the stated case and give its decision as soon as practicable. |
| |
(7) |
The court may refer the stated case back to the tribunal for amendment or clarification, and the tribunal must promptly amend and return the stated case for the opinion of the court. |
| Top |
|
| Standard of review if tribunal's enabling Act has privative clause |
| 58 |
(1) |
If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction. |
| |
(2) |
In a judicial review proceeding relating to expert tribunals under subsection (1) |
| |
|
(a) |
a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable, |
| |
|
(b) |
questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and |
| |
|
(c) |
for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness. |
| |
(3) |
For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion |
| |
|
(a) |
is exercised arbitrarily or in bad faith, |
| |
|
(b) |
is exercised for an improper purpose, |
| |
|
(c) |
is based entirely or predominantly on irrelevant factors, or |
| |
|
(d) |
fails to take statutory requirements into account. |
| Top |
|
| Application of Freedom of Information and Protection of Privacy Act |
| 61 |
(1) |
In this section, "decision maker" includes a tribunal member, adjudicator, registrar or other officer who makes a decision in an application or an interim or preliminary matter, or a person who conducts a dispute resolution process. |
| |
(2) |
The Freedom of Information and Protection of Privacy Act, other than section 44 (2), (2.1) and (3), does not apply to any of the following: |
| |
|
(a) |
a personal note, communication or draft decision of a decision maker; |
| |
|
(b) |
notes or records kept by a person appointed by the tribunal to conduct a dispute resolution process in relation to an application; |
| |
|
(c) |
any information received by the tribunal in a hearing or part of a hearing from which the public, a party or an intervener was excluded; |
| |
|
(d) |
a transcription or tape recording of a tribunal proceeding; |
| |
|
(e) |
a document submitted in a hearing for which public access is provided by the tribunal; |
| |
|
(f) |
a decision of the tribunal for which public access is provided by the tribunal. |
| |
(3) |
Subsection (2) does not apply to personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years or to other information that has been in existence for 50 or more years. |
