If you read our post from yesterday, you know about the secret. Essentially, a judge or tribunal can uphold or reject any matter before them by basing their decision on findings of fact. If you’re the judge and you are inclined to a certain decision, all you need to do is make findings of fact that support your view. The court conducting the appeal will defer to those findings.
Every judge and every tribunal member knows this. Thankfully, it is very rare in courts. We can speculate about the reason for this. We think that legal training and experience are very effective in converting lawyers into people who make disinterested judges. But doubtless there are innumerable factors.
Now the Government wants to move trials of all Motor Vehicle Act offences from courts with judges and justices to tribunals in Government offices (see: The End of the Charter of Rights in BC).
Our concern is that the person making the decision may take advantage of the ability to make findings of fact in order to come to a predetermined decision. You can get a sense of this in the Spencer decision.
If you have some time and wish to do some research, go to the FOI Results we discussed at the start of the month and review the decisions where the applicant was rejected based on a finding of fact. You can get a sense of what we’re up against. We know that the tribunal will make findings of fact. As in Spencer, we often expect that the findings of fact will support the Government’s agenda with the legislation.