The Court of Appeal held that the proper representative of the Crown in proceedings under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, is the Attorney General (the “AG”), not Her Majesty the Queen in the Right of the Province of British Columbia (“HMTQ”). The Court further determined that the AG can appear in his own right to speak for the public interest and may advocate for the statutory decision maker if the latter has not engaged separate counsel. The AG may be liable in costs if the tribunal does not file an appearance and the AG argues the merits of the tribunal’s decision.

28. June 2005 0

Administrative law – Decisions of administrative tribunals – Judicial review – Ministerial powers – Crown representative – Attorney General – Costs liability for

Lang v. British Columbia (Superintendent of Motor Vehicles), [2005] B.C.J. No. 906, British Columbia Court of Appeal, April 25, 2005, Donald, Newbury and Low JJ.A.

This appeal relates to four distinct cases in which a motorist was pulled over by a police officer while driving, provided the breath sample to the officer and was given a driving prohibition after recording a blood alcohol level above the legal limit. In each case, the motorist then applied to have the driving prohibition reviewed by an adjudicator appointed under the Motor Vehicle Act, R.S.B.C. 1996, c. 318, as the delegate of the Superintendent of Motor Vehicles. In each case, the reviews of the prohibition were dismissed. Each of the motorists then brought on a petition for judicial review of the adjudicator’s decision and all were successful and awarded costs of the judicial review proceedings. The Superintendent of Motor Vehicles and the AG of British Columbia appealed against the costs award.

The Court of Appeal found that the issues in the appeal included:

  1. a determination of the correct parties in a judicial review;
  2. the role of the AG in these proceedings; and
  3. the exposure of the statutory decision maker and the AG to costs.

With respect to the first issue, the Court noted that judicial review under the Judicial Review Procedure Act remains, in substance, the process by which the Sovereign supervises the jurisdiction of a Crown agency. The Court noted that as these proceedings were historically brought in the name of the Sovereign, it would be improper to include HMTQ as both an applicant and a respondent in a proceeding. Therefore, the proper representative of the Crown in proceedings under the Judicial Review Procedure Act is the AG, not HMTQ.

The role of the AG is to appear in his own right to speak for the public interest. However, the Court noted that the AG may advocate for the statutory decision maker or tribunal if the latter has not engaged separate counsel. When the AG presents submissions on public interest, he speaks on behalf of everyone and does not take sides. In that situation, the AG is not susceptible to an award of costs. When the AG defends the tribunal, the Petitioner can look to the tribunal for costs in very limited circumstances. The Court noted, hypothetically, the AG could expose himself to costs if the tribunal did not file a response and the AG purported to appear only in the public interest but in fact argued the tribunal’s case.

The Court noted that the general rule is that an administrative tribunal will neither be entitled to nor ordered to pay costs. However, there are exceptions to this general rule including:

  1. misconduct or perversity in the proceedings before the tribunal; or
  2. the tribunal argues the merits of a judicial review application rather than its own jurisdiction.

In such cases, an award against the administrative tribunal is appropriate.

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