November 13, 2021
An administrative decision maker must form a reasonable opinion, but that opinion must also answer the correct question under the governing statute and regulations.
A court conducting judicial review will not decide the question fresh and substitute its own view as to what is the correct answer. That is part of the “reasonableness” standard of review.
But if the wrong question is answered, the decision cannot be reasonable.
Laforme v. The Corporation of the Town of Bruce Peninsula demonstrates what happens on judicial review where the wrong question is answered.
How did the tribunal get it so wrong?
In this case, the decision was that of a conservation authority granting a permit to the Town to build a retaining wall next to a road that runs along Sauble Beach. The digging required would encroach onto the beach up to five to six feet.
The governing regulation under the Conservation Authorities Act required the authority to decide whether or not the project would affect the beach. The regulation prohibits all development on hazardous lands unless, in the opinion of the authority, among other items, “dynamic beaches… will not be affected by the development.”
Sauble Beach fits the definition of a dynamic beach.
In reaching its decision to issue the permit, the authority considered the needs of the Town for improved parking and pedestrian access to the beach, rather than the effect on the beach. In the meeting where the decision was made, there was only one question about the effect on the beach.
The Divisional Court upon reviewing all the evidence determined that it appears that: “there seemed to be recognition that there would be a negative impact, but the Authority deferred to the Town’s need to protect the parking area.”
As a result, the permit was quashed, and the issue sent back to the authority to answer the correct question.
Although the decision might end up being the same, the Town may have lost its window of opportunity to complete the work prior to tourist season.
If you are administrative decision maker, make sure to answer the correct question. This may require legal advice as to what that question is under the relevant legislation and regulations.
If you are a municipal official seeking a permit, you should assist the decision maker by trying to make sure that the request for the permit frames the correct question.