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Judicial Review - Basics. Liu v. London Police Service
In Liu v. London Police Service (Div Court, 2024) the Divisional Court stated succinctly the role of the court in a JR:[23] An application for judicial review is not a re-hearing of the underlying complaint. It is a review of the decision below, through the lens of reasonableness based on the record below: Rossi v. OIPRD, 2024 ONSC 1310 at para. 6. . Trumble v. Pay Equity Hearings Tribunal
In Trumble v. Pay Equity Hearings Tribunal (Div Court, 2024) the Divisional Court dismisses a JR by the applicant former employer of a Pay Equity Hearings Tribunal that found a municipality's pay equity plan achieved pay equity.
Here the spells out some judicial review (JR) and JR standard of review basics, likely for it's self-presenter applicant audience:What is Judicial Review?
[7] The Pay Equity Act does not allow appeals to the court from decisions of the tribunal. Ms. Trumble is here seeking “judicial review” under s. 1 of the Judicial Review Procedure Act, RSO 1990, c J.1.
[8] An application for judicial review is not a “do-over” of a tribunal hearing. Neither is it an appeal searching for errors of law and palpable and overriding errors of fact (or mixed fact and laws) in the tribunal’s decision.
[9] The court is not the body charged with primary responsibility for determining pay equity issues in Ontario. The Legislature has assigned responsibility for pay equity issues to the tribunal and not to the court. The tribunal is composed of members with expertise and experience in the complex issues surrounding pay equity.
[10] On an application for judicial review, the court’s role is supervisory in nature. Rather than looking to correct substantive pay equity errors on an appeal, the court’s role on judicial review is to ensure that the tribunal performed its statutory assignment properly – both reasonably and fairly.
[11] The Supreme Court of Canada described the purpose of judicial review in its key precedent case called Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 as follows:[12] ... Reasonableness review is methodologically distinct from correctness review. It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. In order to fulfill Dunsmuir’s promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions...
[13] Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. [12] Judicial review starts with a presumption that the reasonableness standard of review applies. Ms. Trumble submitted that an issue that she raises relating to the Township’s claim of lawyer client privilege over some documents requires review on a correctness standard because privilege is a question of central importance to the legal system. See Vavilov, at para. 87. I will deal with the document production issue below. It does not bear on the reasonableness standard of review that applies to the tribunal’s decision generally.
[13] In the case of Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866 (CanLII), under the heading “Standard of review to be applied by the Divisional Court to the Decision” the Court of Appeal gave directions to this court as to how to conduct a reasonableness review under the Vavilov framework. Favreau JA wrote:[91] In Vavilov, at para. 83, the court emphasized that the reasonableness review must focus on the reasons of the administrative decision maker. The reviewing court’s role is not to decide the issue afresh: “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem.” The court further emphasized, at para. 84, that the “reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion”.
[92] The hallmarks of a reasonable decision are justification, transparency and intelligibility: Vavilov, at para. 99.
[93] There are two types of “fundamental flaws” that may make a decision unreasonable: Vavilov, at para. 101. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. As explained in Turkiewicz, at para. 59, the “reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic”: see also Vavilov, at para. 102.
[94] Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101. Again, as described in Turkiewicz, at para. 60, the relevant factual and legal constraints include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact on the individual to whom it applies”: see also Vavilov, at para. 106. [14] The court starts with the tribunal’s reasons to see if it can make sense of the logic of the decision. Then the court can look to see if the tribunal ran afoul of factual or legal constraints on its decision-making process.
[15] It is important to note however, that when looking at factual matters, the court is not to reweigh the evidence before the tribunal. The Supreme Court of Canada wrote the following at para. 125 of Vavilov:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”:... Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: [case references omitted.]
[16] Reasonableness can certainly be jeopardized where a decision maker fundamentally misapprehends or fails to take into account relevant evidence before it. See Vavilov at para. 126. But, that is very different thing than scouring a decision to test every finding of fact against the contested evidence that was presented by the parties. . Yatar v. TD Insurance Meloche Monnex
In Yatar v. TD Insurance Meloche Monnex (SCC, 2024) the Supreme Court of Canada resolved issues regarding joint JR/appeal procedure, which arose where appeals were limited to 'questions of law' but the appellant still sought to challenge issues of fact or mixed fact and law [which a judicial review (JR) could conceivably have jurisdiction over]. In such cases the issue arose as to the role of the court's JR discretion, and - if applied to hear the JR - what standard of review applied.
Here the court emphasizes the role of judicial review in our constitutional system:[46] The importance of judicial review was affirmed by this Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 27:As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. . New Blue Ontario Fund v. Ontario (Chief Electoral Officer)
In New Blue Ontario Fund v. Ontario (Chief Electoral Officer) (Div Court, 2024) the Divisional Court illustrates some Election Finances Act procedures, here were a political party felt they were entitled to greater allowance subsidies.
Here, the court contrasts the duty to give reasons of an adjudicator (typically, a tribunal) with those of a (simpler) administrative decision-maker:[57] In this case the context of the proceeding is not one where the CEO is an adjudicator. He is an officer of Ontario’s Legislative Assembly, with statutory authority to administer the EFA. As such, he was required to explain the reasons for his decision taking into account the arguments that had been put before him, not to consider every aspect of the statutory context that might bear upon his decision.
[58] Thus, we do not accept that the CEO’s decision should be considered unreasonable for failing to explicitly deal with an argument about the statute’s purpose that was not put before him. . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR brought by an employee with autism, here of an ESDC staff investigation. In the quote the court cites the summary nature of judicial reviews:[45] Mr. Haynes also submits that the Attorney General should have brought a formal motion in advance of the hearing to deal with the documents issue. However, applications for judicial review are intended to be summary proceedings, and preliminary motions of this sort add greatly to the cost and time required to deal with such matters and are therefore to be discouraged: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 at page 600 (F.C.A.); Rosianu v. Western Logistics Inc., 2021 FCA 241 at paras. 23, 27-30. . Toronto District School Board v. Canadian Union of Public Employees [see full case for numbered case cites]
In Toronto District School Board v. Canadian Union of Public Employees (Div Court, 2023) the Divisional Court considers Vavilov factors to apply in a JR, here of a labour arbitrator's award:[22] The Parties agree that Vavilov[2] applies. Principles from Vavilov applicable to this case include:a. “The burden is on the party challenging the decision to show that it is unreasonable.” (para. 110);
b. Although reasonableness review remains a “robust form of review”, “courts intervene in administrative matters only when it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.” (para. 13);
c. “[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.” (para. 85);
d. “[T]he reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.” (para. 99);
e. The reviewing court must be satisfied there is a “line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” (para. 102, citing Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 55);
f. “[T]he reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency…. [T]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.” (para. 100); and
g. “In conducting reasonableness review, judges should be attentive to the application by decision-makers of specialized knowledge, as demonstrated by their reasons.” (para. 93). . Bell Technical Solutions Inc. v. Workplace Safety and Insurance Appeals Tribunal
In Bell Technical Solutions Inc. v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2022) the Divisional Court set out a (new?) two-step analysis for judicial reviews:[20] On a judicial review application, the reviewing court engages in a two-step analysis. First, the Court considers whether the decision under review has the hallmarks of a reasonable decision: justification, transparency and intelligibility. Once those hallmarks are considered, a reviewing Court goes on to consider whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision: See Vavilov, supra para. 99. . Mcmull v. Ministry of Health
In Mcmull v. Ministry of Health (Div Ct, 2021) the Divisional Court felt it necessary to set out basics of judicial review in the face of what they viewed as particularly intransigent self-litigants:[4] An application for judicial review is not a civil action. It is limited in scope and these constraints circumscribe the proper parties to the proceedings and the issues that can be raised. An application for judicial review is limited to a review of the decision made by the decision maker below, which in this case is the Health Professions Appeal and Review Board. The proper record before the Divisional Court on an application for judicial review, with narrow exceptions, is limited to the record that was before the Board. The parties to an application for judicial review are limited to the parties to the original proceeding with the addition of the decision maker – in this case the Board. The relief the Divisional Court can grant is also limited. Typically, if the Court finds that the Board’s decision was unreasonable or procedurally unfair, the Court will send the matter back to the Board to be decided afresh. In unique circumstances, the Court may substitute its decision for the Board’s decision but, in doing so, the Court is limited to the relief that the Board could have granted when it heard the matter. . Bastien v. University of Toronto
In Bastien v. University of Toronto (Div Ct, 2021) the Divisional Court made some basic comments of judicial review:[13] An application for judicial review is not a trial de novo or rehearing of the underlying dispute. It is a review of the decision below, in this case the decision of the AAC, based on the record that was before the AAC.[1] Apart from uncontroversial background evidence, affidavit evidence to supplement the record below is admissible only in exceptional circumstances.[2]
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