A pensioner (“McLean”) sought judicial review of decisions made by employees of the Ministry of Human Resources (the “Ministry”) regarding McLean’s entitlement to benefits. The application was dismissed as the court found it was brought prematurely, where McLean had failed to pursue the remedies available to him under the legislation at issue.

Administrative law – Judicial review application – Premature – Jurisdiction of court – Compliance with legislation – Remedies – Alternative remedies – Decisions of administrative tribunals – Ministerial orders

McLean v. British Columbia (Minister of Human Resources), [2004] B.C.J. No. 428, British Columbia Supreme Court, March 5, 2004, Gerow J.

McLean submitted to the court that he had been a disability pensioner under the terms of the former Guaranteed Available Income for Need Act, R.S.B.C. 1979, c. 158 and that the Ministry had made orders adversely affecting his entitlement to benefits. The Ministry took the position that McLean’s application was premature as McLean had remedies under the current Act, the Employment and Assistance for Persons with Disabilities Act, S.B.C. 2002, c. 41. The Ministry also took the position that the court did not have jurisdiction to grant a number of the Orders sought by McLean, including his claim for damages.

The court reviewed the facts and noted that McLean had been receiving assistance from the Ministry since 1989. Since that date, three different statutes had governed the provision of social assistance benefits. With respect to McLean’s complaints with his entitlement under the current Act, the court noted that there was no evidence that McLean had pursued any remedies available to him under the legislation to have certain benefits reinstated. The court noted that judicial review was discretionary and that unless there were compelling reasons to the contrary, a court would hesitate to intervene in an administrative process until administrative remedies had been exhausted, citing Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. In this case, the court noted that the legislation contained internal appeal remedies which had been established for the purpose of dealing with questions such as whether the Ministry had erred in refusing to grant certain benefits. Therefore, McLean’s application for judicial review was premature. The court then considered McLean’s claim for compensation in the judicial review proceeding and found that a claim for damages could not be made during such a proceeding, citing Haagsman v. British Columbia (Minister of Forest), [1998] B.C.J. No. 2735 (S.C.). In the result, the petition of McLean was dismissed.

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