Simon's Megalomaniacal Legal Resources

Judicial Review - Remedies Introduction

1. Overview

Aside from it's application to public law, the essence of judicial review as a legal procedure is it's available remedies. 'Remedies' are what the court can order in your favour if you win.

A primary thing that defines these JR remedies is that they are not themselves monetary in nature. There are two categories of JR remedies: the first is 'prerogative writs' - and second, 'injunctions and declaration remedies against statutory powers'.


2. Prerogative Writ Remedies

(a) General

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. [JRPA 2(1)1]

These 'prerogrative writs' [in JRPA law, "mandamus, prohibition or certiorari"] are old legal remedies that the JRPA meant to bring into the 20th (now 21st) century. They are defined fairly here in Wikipedia: prerogative writs.

(b) Mandamus

'Mandamus' is defined in Wikipedia [30 April 2022] as:

Mandamus (/mænˈdeɪməs/; lit. ''we command'') is a judicial remedy in the form of an order from a court[1] to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of public duty, and in certain cases one of a statutory duty.

(c) Prohibition

'Prohibition' is defined in Wikipedia [30 April 2022] as:

... a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction.

(d) Certiorari

Certiorari is the most commonly sought of the prerogative writs. It is defined in Wikipedia [30 April 2022] as follows:

In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review. The term is Latin for "to be made certain", and comes from the opening line of such writs, which traditionally began with the Latin words "Certiorari volumus..." ("We wish to be made certain...").

(e) Modern Informality

In modern Ontario JR law these formal prerogative writs are less mentioned by their old latin names, and informality reigns as a means of furthering legal accessibility. This informality is supported by these JRPA provisions [JRPA 7,9(1)]:

7. An application for an order in the nature of mandamus, prohibition or certiorari shall be deemed to be an application for judicial review and shall be made, treated and disposed of as if it were an application for judicial review.

....

9(1) It is sufficient in an application for judicial review if the applicant sets out in the notice of application the grounds on which the applicant is seeking relief and the nature of the relief.

3. 'Statutory Powers' Injunctions and Declaration Remedies

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[JRPA 2(1)2]

Injunctions and declarations are familiar to most of us, but for the sake of clarity I'll quote these Wikipedia definitions [at 01 May 2022]:

An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts.[1]

A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding order by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal).

However the primary addition of these JRPA 2(1) remedies (a opposed to the prerogative writs provision, s.2 above) is their application only to "statutory powers", which - due to their broad significance in modern judicial review law - are dealt with separately in this section [s.3 "Main Orders (Remedies)"].

In this sense, the prerogative writ remedies seem to have been included in the JRPA out of an abundance of legislative caution - or perhaps out of consideration for legal traditionalists, as the present injunction and declaration statutory power remedies largely render them redundant.

Traditionally in Ontario law, judicial reviews are all about challenging the exercise of government power, and this is reflected in both the 'statutory powers' concept. and in the case law by the distinction between the 'public' and the 'private'. The case law will often use the public-private dichotomy in preference to the 'statutory powers' language.