Jun 14, 2018

AREAS OF LAW: Administrative decisions; Safety Standards Act; Judicial review; Question of jurisdiction

International Brotherhood of Electrical Workers, 2017 BCCA 313 (CanLII)

Only in exceptional circumstances will a tribunal, reviewing its own statute, raise a question of true jurisdiction.~

BACKGROUND: A Provincial Electrical Safety Manager is an administrative decision-maker authorized to certify, license, or permit individuals to do certain kinds of electrical work. One such Safety Manager decided that in most cases the Appellant, the British Columbia Safety Authority (the “Authority”), would recognize Electrical Work Practitioner certificates issued by the Appellant Applied Science Technologists and Technicians of British Columbia (the “Association”), as part of its evaluation of whether an applicant was qualified to do electrical work under the Safety Standards Act. The Safety Manager indicated that he was giving the Association permission to operate a recognized training program. The Respondent International Brotherhood of Electrical Workers applied for judicial review on the basis that the Safety Manager lacked jurisdiction to recognize these certificates. The Respondent argued that doing so fettered his discretion to issue certificates under his enabling statute. The chambers judge considered the standard of review to be one of correctness. He considered the Safety Manager’s decision to be on a point of true jurisdiction, being whether the Safety Manager has jurisdiction to recognize a program of training that is beyond the authority of the Association under its enabling statute. The judge held that the Association’s objects and concomitant powers under the legislation do not extend to developing new programs of training that may be recognized by others, such as a Safety Manager. He found that a Safety Manager cannot recognize a program of training to be developed or operated by a person without the necessary legal authority. He then went on to find that even on a reasonableness standard of review, it was not reasonable for the Safety Manager to recognize a program not properly authorized under the statute under which it was developed, because it could never be reasonable to recognize a program of training not authorized by law.

APPELLATE DECISION: The appeal was allowed. The Association argued that the Respondent did not have public interest standing to challenge the Safety Manager’s decision, because it did not raise a justifiable issue and had not real stake or genuine interest in the approval of the program. Further, the Association argued that it was an error to suggest the case involved a jurisdictional question. Only in exceptional circumstances will a tribunal, reviewing its own statute, raise a question of true jurisdiction. Questions of qualification and certification to engage in restricted work fit squarely within the Safety Manager’s authority and expertise. The Safety Manager has a statutory mandate to assess a program of training as defined in the Safety Standards Act. Further, the program was established by a valid resolution of the council that governs the Association. Such resolutions are passed pursuant to the enabling legislation, and the Association submitted that as such they should be presumed to be valid. The Association argued that it was operating within its statutory objective and that the Safety Manager had statutory discretion to recognize training programs and to grant permission to individuals or groups to conduct training. Similarly, the Authority argued that the decision to recognize a training program, as opposed to issuing a license or certificate, is not properly the subject of an appeal or judicial review. The Court of Appeal considered the standing issue to be moot. The Court saw nothing in the Safety Manager’s decision that warranted a correctness standard of review, finding that whether the Safety Manager erred in giving limited recognition to certificates issued by the Association was far from a true question of jurisdiction. It was not the Safety Manager’s role to grant permission to operate training programs generally, but the substance of the decision was to recognize certificates issued by the Association. That was the decision that was at issue on judicial review. Whether the Association was “authorized by law” to establish a training program was not a question that was properly before the Safety Manager, nor was it open for consideration on judicial review. The Safety Manager was entitled to presume the Association was acting within its statutory authority. There was no basis on which to challenge the reasonableness of the Safety Manager’s decision to recognize, in a limited manner, certificates issued by the Association.