Administrative law permeates our daily lives. While many of us may never be litigants in a court case, all of us have been on the receiving end of a decision made by an administrative decision-maker. In many ways, administrative law is people’s law – it touches nearly every aspect of life in modern society.
Many important issues are decided by administrative decision-makers, ranging from whether we qualify for income assistance benefits or legal aid, to whether our injury at work is covered by workers compensation. As society becomes complex, so too are administrative regimes. Many administrators have the power to decide Charter issues – that is, unless that power is expressly removed by law.
What happens when someone who is not represented by a lawyer tries to navigate a complex administrative regime? What about when that self-represented person doesn’t know that their case has anything to do with their Charter rights? Should those litigants be expected to make their Charter claims before the first available decision-maker?
Yesterday, the BC Court of Appeal (BCCA) answered that question. In Denton v Workers Compensation Board, the Court decided that the responsibility is on the litigant wanting to make a Charter claim to have made it where such an argument is first available – with the first decision-maker that touches their case. The Court said that litigants who fail to do so lose the opportunity to make their claims at all.
West Coast LEAF intervened in this case jointly with the Community Legal Assistance Society because we wanted the Court to understand the access to justice implications of the case.
We wanted the Court to appreciate that without a lawyer to help navigate complex legal processes, many people, including many women, will lose the opportunity to bring important rights-based claims forward.
There are circumstances in which it is manifestly unfair to expect the claimant to mount a full-blown constitutional challenge before the first decision-maker with power to hear it, a point at which they are most likely to be without the benefit of legal advice. This is an especially acute issue in the current context of inadequate legal aid in BC, something West Coast LEAF has been working to rectify for many years and is now challenging in court.
The BCCA found that the issue before it was not about access to justice at all, but about ensuring a proper record for courts to review administrative decisions. But, access to justice is much more than just access to an opportunity to advance a legal claim. Access to justice – particularly in vindicating fundamental rights and freedoms – must be meaningful. Otherwise, we risk those rights becoming empty promises.