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Judicial Review - 'Urgent' Procedural Option [JRPA 6(2)]

1. Jurisdiction

While the 'normal' rule is that an 'application for judicial review' is heard by the Divisional Court, "where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice", the application may be brought before a judge of the Superior Court [JRPA 6(2), R38.02] [an 'urgent application'].

A useful explanation of the unique role of JRPA 6(2) applications in COVID times is given in Sobczyk v. Ontario (Div Ct, 2021), para 6-7.

An urgent application requires leave of the judge, "which may be granted at the hearing of the application". "Where a judge refuses leave for an application ... he or she may order that the application be transferred to the Divisional Court" [JRPA 6(2-3)].

An appeal of a final order from an urgent application lies to the Court of Appeal, with leave of that court [JRPA 6(4)].

2. Venue and Dating of Notice of Application

The Notice of Application shall name the place of commencement, which shall be:
. "(i)f a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county, ... a court office in that county", and that county shall be named in the notice of application [R38.03(1), R13.1.01];

. if the application need not be commenced in a particular county, then "the proceeding may be commenced at any court office in any county named in the originating process" [R38.03(2)].
If the application is to be heard in person, it shall be heard where it was commenced, or transferred [under R13.1.02, R38.03(1.1)].

"At any place where no practice direction concerning the scheduling of applications is in effect, an application may be set down for hearing on any day on which a judge is scheduled to hear applications" [R38.03(2)]. "If a lawyer estimates that the hearing of the application will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of application is served [R38.03(3)]. "An urgent application may be set down for hearing on any day on which a judge is scheduled to hear applications, even if a lawyer estimates that the hearing is likely to be more than two hours long" [R38.03(3.1)].

3. Contents of Notice of Application

The Notice of Application [Form 14E)] shall state [R38.04]:
(a) the precise relief sought;
(b) the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and
(c) the documentary evidence to be used at the hearing of the application.
4. Issuance, Service and Filing of the Notice of Application

The notice of application is issued before it is served by "the registrar’s act of dating, signing and sealing it with the seal of the court and assigning to it a court file number" [R38.05. R14.07].

The (now-issued) notice of application "shall be served on all parties" "at least ten days before the date of the hearing of the application, except where the notice is served outside Ontario, in which case it shall be served at least twenty days before the hearing date" [R38.06(1,3)].

"Where it appears to the judge hearing the application that the notice of application ought to have been served on a person who has not been served, the judge may" [R38.06(2)]:
. dismiss the application or dismiss it only against the person who was not served;
. adjourn the application and direct that the notice of application be served on the person; or
. direct that any judgment made on the application be served on the person.
"(W)here there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions" [R38.06(1)].

"The notice of application shall be filed with proof of service at least seven days before the hearing date" [R38.06(4)].

5. Counter-Application

In the case of a counter-application against the applicant and/or another person, the counter-application shall be brought at the same place and time, unless the court orders otherwise [R38.03(4)].

6. Powers of the Court on Application

On hearing the application the judge may [R38.10(1-3)]:
. grant, adjourn or dismiss the application in whole or part, with or without terms; or

. order that the whole application proceed to trial as an action, and give such directions as are just;

. order that any issue proceed to trial, optionally as an action, with necessary adjournment.
7. Other Procedures

Further Rules of Civil Procedure are set out as follows:
. service and filing of the respondent's notice of appearance [R38.07],

. Record [JRPA 10 - Record to be filed in court]

Record

. Abandonment of the application [R38.08],

. Parties' material for use on the application (application record, factum and transcript) [R38.09],

. Pre-hearing confirmation and consultation of application [R38.09.1],

. Set-aside motions for ex parte or non-appearance judgments [R38.11], and

. Striking documents [R38.12, R25.11].


R38 - Applications - Jurisdiction and Procedure
R68 - Proceedings for Judicial Review
Judicial Review Procedure Act


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