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Judicial review in Canada

In Canada, judicial review is the process that allows courts to supervise administrative tribunals'
exercise of their statutory powers.[1] Judicial review of administrative action is only available for
decisions made by a governmental or quasi-governmental authority.[2] The process allows individuals
to challenge state actions, and ensures that decisions made by administrative tribunals follow the
rule of law.[3] The practice is meant to ensure that powers delegated by government to boards and
tribunals are not abused, and offers legal recourse when that power is misused, or the law is
misapplied. Judicial review is meant to be a last resort for those seeking to redress a decision of an
administrative decision maker.

The federal courts have jurisdiction over judicial review with respect to decisions of federal
administrative tribunals and other matters of federal jurisdiction.[12]

A major change to the mechanism of judicial review was the adoption of the Canadian Charter of
Rights and Freedoms in 1982. This firmly entrenched the mechanism of judicial review with the
superior courts.[13] Today, administrative tribunals are subject to the written constitutional guarantees,
and superior courts, while performing judicial review, look to these issues in addition to performing
statutory interpretation and applying common law precedents.

Criteria for Judicial Review

In order for the court to proceed with an application for judicial review, following criteria must be
satisfied:

1. the issue being appealed must be public in nature


2. the party making the claim has standing
3. that the court jurisdiction to hear the application
4. whether the application was made within an appropriate amount of time
5. whether the parties have exhausted all avenues of recourse.
6. Other options that should be considered before judicial review include grievances and
appeals.[16]

An application for judicial review does not automatically stop the administrative proceedings. In order
to halt the proceedings, if they are ongoing, the applicant must also apply for a stay of proceedings.
Grounds

 (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
 (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it
was required by law to observe;
 (c) erred in law in making a decision or an order, whether or not the error appears on the face of
the record;
 (d) based its decision or order on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it;
 (e) acted, or failed to act, by reason of fraud or perjured evidence; or
 (f) acted in any other way that was contrary to law.

Determining the Standard of review


The Supreme Court of Canada has indicated that every judicial review must begin with the
addressing of standard of review.[23] The principle factors considered by the court when deciding the
appropriate standard of review are:

 whether there is a privative clause or right of appeal


 the expertise of the administrative decision maker in the matter being decided
 the purpose of the enabling statute, and the specific provision that is being reviewed
 the nature of the problem being decided - is it a question of fact, law, or mixed fact and law?[22]

Reasonableness[edit]
The standard of reasonableness allows more deference for the administrative decision maker.
Rather than reviewing the decision in its entirety, the court instead looks at whether the decision falls
within a range of acceptable outcomes that are respectful of the facts and the
law.[24] Reasonableness itself is not a spectrum, but a single standard that is coloured by the
context of the issue being decided.[25] Cases that use a standard of reasonableness are:

 Canada (Citizenship and Immigration) v Khosa


 Catalyst Paper Corp v North Cowichan (District) 2012 SCC 2

Correctness[edit]
The correctness standard is applied when the courts give little deference to the administrative
decision maker, and decide to review the decision in its entirety.[26] When applying the correctness
standard, the court carries out its own statutory analysis and arrive at its own understanding of how
the issue should be decided.[26] Some cases where the court uses a standard of correctness are:

 Pushpanathan v Canada (Minister of Citizenship and Immigration)


 Northrop Grumman Overseas Services Corp v Canada (Attorney General) 2009 SCC 50, [2009]
3 SCR 309
 Stewart v Workplace Health, Safety and Compensation Commission, 2008 NBCA 45

REMEDIES AVAILABLE

Statutory Appeals are the preferred method of appeal and are based on remedies set out in
the enabling statues

The remedies available to the courts when they are performing judicial review are all forms of
injunction.
While monetary damages are common in private law, they are not a typical remedy of judicial
review.
None of the prerogative remedies are available to use against the Crown.

The following are the remedies available for judicial review:

 Certiorari is the method by which an administrative decision is brought before the court. It is
also a remedy that the court can order, which sends the administrative decision back to the
tribunal that decided it. Certiorari is often used when tribunals have acted without jurisdiction, or
have made a jurisdictional error.[29] This remedy is not used for preliminary decisions, but for
final decisions.[30] Certiorari is not a remedy used in private law, and is exclusively an
administrative remedy.[30]
 An order for certiorari will automatically stay proceedings (UFCW, Local 1252 v PEI (Labour Relations Board)
(1987)
 An application for JR will not stay proceedings, although the tribunal may do so out of courtesy (Prassad v
Canada (Minister of Employment and Immigration) [1989] 1 SCR)
 S8(3) of the PEI Judicial Review Act explicitly states that launching an application for JR does not
automatically stay proceedings, have to make an application for it
 In RJR Macdonald Ltd v Canada (AG) 1994 – the SCC affirmed the that the above test applies to both private
and public litigant – constitutional violation could result in award of damages for irreparable damage.

 Stays of the Administrative Process


Manitoba (AG) v Metropolitan Stores (MTS) Ltd [1987]
The Usual Conditions for the Granting of a Stay
A stay of proceedings and an interlocutory injunction are remedies of the same nature

 The first test is whether the litigant seeking the interlocutory injunction can make out a prima facie case. The
injunction will be refused unless he can
 The second test is whether the litigant who seeks the interlocutory injunction would, unless the injunction is
granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages
 The third test is, determining the balance of convenience as to which of the two parties will suffer the greater
harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.

 Mandamus is used to force a decision maker to follow its statutory duty.[31] Section 28 of
the Federal Courts Act gives the authority to grant mandamus over specific federal delegates to
the Federal Court of Appeal.[28]
 In the case of Karavos v City of Toronto [1948], the court set out the principal points that
m/b demonstrated before awarding mandamus
 [Mandamus] is appropriate to overcome the inaction or misconduct of persons charged with
the performance of duties of a public nature. Before the remedy can be given, the applicant
for it must show:
 (1) “a clear, legal right to have the thing sought by it done, and done in the manner and by
the person sought to be coerced.”
 (2) “The duty whose performance it is sought to coerce by mandamus m/b actually due and
incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel
the doing of an act which he is not yet under obligation to perform.”
 (3) That duty m/b purely ministerial in nature, “plainly incumbent upon an officer by operation
of law or by virtue of his office, and concerning which he possesses no discretionary
powers.”
 (4) There m/b a demand and refusal to perform the act which it is sought to coerce by legal
remedy

 Prohibition: this remedy prevents the tribunal from deciding a matter that it does not have
jurisdiction over. Because prohibition is designed to prevent the administrative body from
deciding the issue, it is used at the beginnings of the proceedings.[29] Like certiorari, prohibition
is only used within public law.[30]

 Habeas Corpus is an writ that challenges the detention of citizens by the state. Habeas
corpus is generally use in administrative law for issues in immigration matters, prison law, and
the detention of minors.[32]

 Quo Warranto challenges the authority used to make a decision. This remedy is not frequently
applied, as the courts generally prefer to find an equivalent statutory alternative.[18]
Limits[edit]
Judicial review and its corresponding prerogative remedies are all discretionary. The court's
discretion allows it to deny remedies, even when the applicant has made out their case.[33] The
following are common law reasons that the court may refuse relief.

 Mootness: Where remedies would be futile, or incapable of meaningfully being implemented,


the court will not enforce them.[34] Similarly, where the court finds an error in the initial decision,
but the remedy sought would not change the outcome, the remedy may be withheld.[35]

 Delay: The court may refuse relief where the applicant has caused an unreasonable delay in
bringing its application.[36] Whether there has been delay is determined on a case-by-case
basis.[36]

 Waiver: Where a decision is made by a body that does not have jurisdiction, the court may still
deny relief based on the applicants conduct. This does not mean that the decision is validated, it
does mean that the applicant's conduct weighed heavily enough that the court decided to
withhold a remedy.[37] Waiver may also occur when an applicant fails to object to procedural
unfairness and continued to participate in the proceedings.[37]

 Availability of Alternative Remedies: Where an equally effective alternative remedy exists at


the statutory level, the courts may decide to exercise their discretion to refuse a remedy.[35] This
occurred in Harelkin v University of Regina, where the Supreme Court of Canada determined
that precedence should be given to statutory remedies.[38] The Court is reticent to point to other
forms of relief when the remedy sought is habeas corpus.[38][39]

 Conduct of the Applicant: Like waiver and delay, the court may refuse to offer relief because
of the applicant's conduct. Relief may be denied because of bad faith dealings, deceitfulness, or
fraudulent conduct. Where the court finds that the applicant's conduct is improper, they will
refuse relief.[34]

In addition to this list, the court may also use its discretion to refuse remedies based on specific
statutory grounds.[33]