Dr. Fred Logue:

If there is a judicial review, it can be at any time. Two things may happen. Within eight weeks, the applicant may contact the board to point out errors in the decision and ask the board to amend the decision. It is unfair to the public, who have eight weeks to prepare for judicial review. They do not know whether the decision is final. In a proposed Bill that is meant to increase legal certainty, this provision sticks out as inconsistent. I heard what the Department said about this. First, it said it is a minor amendment, which is not reflected in the draft Bill. We already have section 146A, which deals with that. It is in a different part, namely, the administrative part. It is definitely there to deal with judicial review. The problem is that the decision is the written decision. It does not matter what the board thought it was deciding. Just like it does not matter what the Legislature thought it was enacting; it is the words on the page that are the decision. The idea that the board took a matter into account but forgot to write it down and will go back and fix that is completely contrary to any concept of good administration. If the board needs eight weeks to check its decision, it should do that before publishing its decision. It should not publish a temporary decision and then try to figure out what is wrong with it. That would be bad administration. It opens it up to the board being asked whether it actually decided a matter or it is just changing the words to get rid of the judicial review. It kind of relegates the decision to a formula of words to avoid judicial review, whereas case law and general legal principles are that the written decision has to record what was decided and the reasons for it. If that is now a fluid concept that can be adjusted when a mistake is spotted or a decision challenged, that completely undermines the administrative system and will give rise to a significant amount of litigation.