As judicial resources become scarce, provincial governments are looking evermore to administrative tribunals to adjudicate disputes.
The delegation of decision-making power away from the Courts comes with benefits and burdens. On the one hand, having matters decided by expert tribunals promotes the efficient resolution of matters, as well as access to justice. On the other hand, not having matters decided by the Courts has an impact on substantive justice and the rule of law. As a result, the judicial review of administrative action has become a key aspect of Canadian jurisprudence.
In many ways, judicial review is very much its own creature. Those litigators who have represented clients at the tribunal level may not have the necessary experience to deal with a review of that decision in Divisional Court.
Below is a list of some of the most common errors made by counsel when seeking judicial review in Ontario:
1. Failing to Challenge a Statutory Power of Decision
The statute governing judicial review applications in Ontario, the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 (the “JRPA”), provides the Court with the jurisdiction to grant remedies “in the nature of mandamus, prohibition or certiorari”, i.e. the old prerogative writs. But the Divisional Court can only grant such relief where the administrative body in question is exercising a “statutory power of decision”.
The JRPA defines a statutory power of decision as a power or right conferred by or under a statute to make a decision deciding the legal rights of any person or party and the eligibility of any person to receive or continue a benefit or license. The definition is necessarily broad.
That being said, if the decision under review was not made under a statute, it cannot be challenged by judicial review. This may pose a problem for challenging the decisions of bodies that may be quasi-public in nature, such as sport associations or other bodies that may or may not be subject to statutory governance.
2. Failing to Meet the “Limitation Period” for Judicial Review
There was once a time when judicial review applications in Ontario could be commenced within six months of the tribunal decision: Jeremiah v. Ontario (Human Rights Commission),  O.J. No. 3013 (Div. Ct.).
However, recent amendments to the JRPA have made it clear that an application for judicial review must be commenced within 30 days of the decision.
A party who misses that deadline must now face the additional hurdle of persuading the Court to extend the time for the application by showing there are “apparent grounds for relief” and “no substantial prejudice or hardship will result” by the delay.
3. Failing to Serve the Attorney General of Ontario
Any notice of an application for judicial review is required to be served on the Attorney General of Ontario under the JRPA. This is because the Attorney General has a right to be heard in person or by counsel on the application.
A failure to serve the Attorney General of Ontario with the Notice of Application will result in further delay and the possible rejection of the application itself by the Divisional Court.
4. Failing to Identify and Argue the Standard of Review
In 2019, the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, established that a presumptive deferential standard of review of reasonableness would apply to the judicial review of administrative action in Canada. However, there are a number of exceptions to this rule in which the less deferential standard of correctness applies.
A failure to identify and argue what the applicable standard of review is to your decision leaves the Divisional Court to solve the problem on its own, without the benefit of the parties' submissions. This is not a situation in which counsel wants to find themselves.
5. Failing to Identify Breaches of Natural Justice / Procedural Fairness
Another common error made by unversed counsel is the failure to identify a breach of procedural fairness during the tribunal hearing.
Breaches of procedural fairness or natural justice, while less common, constitute a discrete basis for challenging administrative action. They can frequently constitute a client's best argument.
Unversed counsel tend to focus on substantive review in their applications, i.e. whether the tribunal decision is reasonable or correct.
But allegations about the right to be heard or bias can have a significant impact on the Court's review of a hearing. Such grounds should not be ignored.
How We Can Help You with Your Judicial Review Application
The errors above illustrate that the potential for counsel to make a fatal mistake in the commencement, perfection or argument of a judicial review application is significant.
Our appellate litigation team at Torkin Manes offers assistance to litigators with respect to any and all aspects of an application for judicial review, including:
- A preliminary assessment of the merits of the application, including opinions and legal research;
- Drafting Notices of Application for Judicial Review;
- Drafting materials for the perfection of the application, including facta; and
- Written and oral advocacy for judicial review hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.