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Judicial Review - Prerogative Remedies - Prohibition [JRPA 2(1)1]. Herbert v. Canada (Attorney General)
In Herbert v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered, but denied, an unusual judicial review request for a 'writ of prohibition':[18] Finally, there are no circumstances in the present matter that could justify the issuance of a writ of prohibition. It is trite that writs of prohibition are issued by reviewing courts to direct a lower court or an administrative decision maker not to proceed with a matter that does not fall within its jurisdiction (Guy Régimbald, Canadian Administrative Law, 3rd ed. (Toronto, LexisNexis, 2021) (Régimbald) at 592; D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, 2nd ed. (Toronto: Canvasback Publishing, 2009) (looseleaf updated 2021) at 1:4). This is obviously not the case here as it is well within the Board’s jurisdiction, as a trier of fact, to set its own procedure and determine evidentiary issues (the Act at s. 146(1); Régimbald at 324-325; see also Université du Québec à Trois-Rivières v. Larocque, 1993 CanLII 162 (SCC), [1993] 1 S.C.R. 471, 101 D.L.R. (4th) 494, at 487). This is not disputed.
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