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Strained interpretation – standard of review applicable to the Civil Resolution Tribunal decision when it has “specialized expertise”

March 16, 2021

On judicial review, the court concluded that the standard of correctness applied to decisions of the Civil Resolution Tribunal. It held that “specialized expertise”, as used in the Civil Resolution Tribunal Act, was not tantamount to “exclusive jurisdiction”, as used in section 58 of the Administrative Tribunals Act. On this basis, although the court recognized that the Legislature likely intended a deferential standard to apply to judicial review of CRT’s decisions, when considering section 58 of the ATA and the principles of statutory interpretation, the correctness standard applied.

Administrative law – Decisions reviewed – Civil Resolution Tribunal – Jurisdiction – Judicial review – Compliance with legislation [interpretation] – Privative clauses – Standard of review – Correctness – Condominiums – Strata corporations – By-laws – Freedom of information and protection of privacy – Collection of records – Reasonable purpose

Owners, Strata Plan BCS 435 v. Wong, [2020] B.C.J. No. 2057, 2020 BCSC 1972, British Columbia Supreme Court, December 14, 2020, Lyster J.

Background

The respondents, Peter and Linda Wong (the “Wongs”), challenged a bylaw of the Strata in which they lived that required all overnight guests of the resident to complete a Temporary Resident Information Form (a “TRIF). The TRIF collected certain personal information regarding the guest, and also required the guest to provide a photocopy of their personal identification. The Wongs were fined by the Strata when their guests refused to allow their photo identification to be photocopied as required by the TRIF. The Wongs then filed a complaint with the Civil Resolution Tribunal (the “CRT”), in which they claimed that the bylaw was not enforceable because it contravened the Personal Information Protection Act, SBC 2003, c. 63 (“PIPA”).

The CRT upheld the Wong’s claim, and ordered the Strata to refrain from enforcing the bylaw related to the TRIFs. The CRT found that it had jurisdiction to determine whether the bylaw contravened PIPA. It also found that the collection of personal information, pursuant to the TRIF, was inappropriate and did not achieve the objectives the Strata claimed it was intended to. In doing so, the CRT concluded that the portion of the bylaw which required overnight guests to complete the TRIF, including the provision of photo identification, to be unenforceable.

The Strata sought judicial review of the CRT’s decision. The court’s decision in Wong represents the first judicial review pursuant to the amendments to the Civil Resolution Tribunal Act, SBC 2012, c. 25, which came into force on January 1, 2019.

There were two key issues before the court: (1) which standard of review applied to the decision; and (2) did the CRT err in electing to exercise its discretion and, in turn, concluding that the bylaw contravened PIPA. For the purpose of this case summary, we will focus on the first of these issues.

What is the applicable standard of review?

The Strata argued that the standard of review was correctness. The Wongs argued it was patent unreasonableness. The parties’ differing positions – and ultimately, the court’s analysis – focused on the interpretation of section 56.7 of the CRTA and section 58 of the Administrative Tribunals Act, SBC 2004, c. 45 (the “ATA”).

Section 56.7 of the CRTA sets out the standard of review applicable to CRT decisions, by reference to the ATA. It states, in relevant part, that in relation to an application for judicial review of a final decision of the tribunal or a claim in respect of which the tribunal is to be considered to have “specialized expertise”, section 58(2) and (3) of the ATA apply.

Section 58(2) of the ATA, in turn, states as follows:

(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.

The Strata argued that section 58(2) only applies to matters over which the CRT has “exclusive jurisdiction”. Here, the CRT did not have exclusive jurisdiction over the dispute, only “specialized expertise”, as that language was specifically used in section 56.7 of the CRTA. Both parties agreed on this point. Therefore, according to the Strata, this meant that section 58(c) of the ATA applies (“for all matter other than those identified in paragraphs (a) and (b)…), which, in turn, meant the correctness standard was the appropriate standard for judicial review.

The Wongs, for their part, acknowledged the discord between the two acts (“specialized expertise” vs. “exclusive jurisdiction”), but argued that the standard of patent unreasonableness in section 58(2)(a) of the ATA must apply in order to give effect to the true intent of the standard of review provisions in the CRTA. Put simply, the Wongs argued that “specialized jurisdiction” (used in the CRTA), ought to be read as tantamount to “exclusive jurisdiction” for the purpose of determining the standard of review to CRT’s decisions. At a minimum the term “specialized expertise” ought to be read as being covered by “exclusive jurisdiction”.

The court disagreed with the Wongs. The court’s analysis focused on basic principles of statutory interpretation.

The court accepted that the legislature likely intended for decisions of the CRTA dealing with strata members to be subject to a deferential standard of review. However, despite this starting point, the court concluded that it “would do violence to the language actually chosen by the Legislature” to read exclusive jurisdiction in the ATA as including the term “specialized jurisdiction” in the CRTA (para. 51). The court held that such an interpretation was not one that the words of the statute could reasonably bear.

To further support this position, the court noted that the CRTA itself includes a definition of “exclusive jurisdiction”, which then references certain claims under section 115 of the CRTA. If the Legislature had intended that exclusive jurisdiction be read to include specialized expertise, the court held that it was open to make that clear within the CRTA, which it did not.

Conclusion

In the end, the court concluded that, given exclusive jurisdiction was a term of art, in could not be read, absent explicit language to that effect, to include specialized but non-exclusive jurisdiction. Given this, the court found that it was required to apply all of the provisions of section 58(2) of the ATA, which meant a correctness standard applied since section 58(2)(c) was triggered.

In its decision the court seemed to recognize the potential absurdity of this result, since it meant a non-deferential correctness standard applied. However, at the same time, the court said to treat specialized expertise and exclusive jurisdiction as synonymous would be an even more absurd result and also contrary to the plain meaning of the legislation.

While the court held that the more stringent correctness standard applied, it ultimately concluded that the CRT had jurisdiction to apply PIPA to the parties’ dispute and that it did not err in its decision to exercise that jurisdiction. Further, the court found that the CRT’s decision related to the merits of the enforceability of the bylaw was correct. For these reasons, the Strata’s application for judicial review was ultimately dismissed.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at [email protected].

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Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: March 16, 2021.

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