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Judicial Review (JR)*RE-WRITING at April 2026*
- OVERVIEW
- JUSTICIABILITY
- JR ROUTES
- STANDING
- LIMITATIONS
- PROCEDURES
- COMMON JR ISSUES
- EVIDENCE
- STANDARDS OF REVIEW (SOR)
- REMEDIES
*** consider adding the sub-titles to the main TofC, making it quite similar to a Guide ....
- RE-OPENING
Note: At present, this topic deals primarily with Ontario JR. There are JR provisions for federal law, grounded in the Federal Court Act and the common law (which is usually the same as Ontario JR common law), but for the time being I just allocate federal JR cases to the end of the JR topic. For the time being I do not even strive to any degree of completeness in federal JR.
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============================ 1. OVERVIEW =======================================
1. OVERVIEW
Judicial reviews (JRs) are all about challenging administrative decisions and actions, which means public or government decisions and actions. In some situations where the government is involved in regulating the relationship between private parties [eg. residential tenancies (RTA), auto insurance (SABS) and other situations (usually ones of statutory contractual modification)], JR can still be advanced as a legal remedy - but this is only because of the involvement of a tribunal [eg. the Landlord and Tenant Board (LTB) for RTA, or the License Appeal Tribunal (LAT) for SABS]. Without this essential public or government involvement your legal remedies typically lie in civil proceedings - grounded in such legal doctrines as contract, tort or restitution.
JR - Introduction
Overview
JR - Basics
JR - Constitutional Basis
Context
JR - Jurisdiction NEEDS REVIEW
JR - No Development of New Law in JR
JR - Criminal
Practice
JR - Practice
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============================ 2. JUSTICIABILITY ===================================
2. JUSTICIABILITY
Comment
Generally in law, the term 'justiciability' refers to when an issue can (or can't) be judicially-adjudicated ('taken to court'). So this section addresses when an issue can (or can't) be judicially-adjudicated with a judical review (I may use the term 'JR-justiciable' to refer to this at times).
JR law in Ontario is statutorily-governed by the Judicial Review Procedure Act (JRPA). Central to Ontario JR are the long-standing JR remedies of "mandamus, prohibition or certiorari" (together, the 'prerogative writs') [JRPA s.2(1)1], and the JRPA-defined "statutory powers" (SPs) - which include the common "statutory powers of decision" (SPDs) [JRPA s.2(1)2].
Less well-known in JR law are the technically-larger category of "statutory powers", which include 'powers or rights':- to make subordinate legislation ("regulation, rule, by-law or order");
- to exercise a statutory powers of decision (SPDs) (already mentioned) make a decision respecting:
- "the legal rights, powers, privileges, immunities, duties or liabilities of any person or party", or
- "the eligibility of any person or party to receive ... a benefit or licence"
- to require of anyone "to do or to refrain from doing any act or thing" (mandatory or prohibitory orders);
- to do "any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party" (rights-overriding actions).
In day-to-day practice, the majority of JR cases that the courts see involve SPDs ('statutory powers of decision') - which involve various province-wide tribunals (about 50 in Ontario), municipalities (about 444 in Ontario) and their 'local boards' [Municipal Affairs Act, s.1 (definitions)], and sundry other bodies or even single-person appointments - all of which involve adjudicative decisions.
Generally, any administrative acts or decisions which fall under JRPA s.2(1) [above] are 'JR-justiciable'. But there are exceptions on this, primarily drawn by the line between the 'public' and the 'private' (you will see a lot of cases on this) - where public issues are justiciable and private matters are not. Also, the courts draw a less-recognized, but quite real, justiciability-line against JR-ing 'political' decisions or acts - this being a function of the larger historical three-way distinction between the 'legislative, the executive and the judiciary' (out of a sort of institutional respect).
Further, JRs are closely-tied to the remedies that the law offers. The JRPA s.2(1)1 categories of "mandamus, prohibition or certiorari" are remedial doctrines tied to the unique grounds of action that they embody, while JRPA s.2(1)2 'statutory powers' doctrine technically offers the remedies of 'declaration' or 'injunction' (which are remedial forms also occuring in non-JR fields). However, IMHO the courts have largely let these fine remedial distinctions fall by the wayside, and treat most JR cases under the broad de facto category of 'certiorari' (latin for "to be made more certain"). When an administrative act or decision is breached 'by way of certiorari', this results in the decision being 'quashed' (ie. cancelled) - and then either remitted below for re-hearing (in full or part), or the court itself substituting it's own decision. One rarely sees any discussion of old prerogative writ remedies, nor of declaratory or injunctive remedies -- it's just 'quash' and then logically sort-out.
JR - Justiciability (+) NEEDS REVIEW
JRPA 2(1) Applications for judicial review
Discretion
'Discretion' in any legal context refers to the situation where the adjudicator (in JR it's always a judge) has the choice of whether to consider an issue, or the grant a remedy. The presence of discretion is usually shown by the use of the term 'may', contrasted with the mandatory 'shall'. Discretion is not so much a justiciability feature (because where the court has 'discretion' the matter is also justiciable), but for practical JR applicant purposes the result of the 'discretionary' examination can be to the same effect - so I include it here.
The Isthatlegal website has it's own Discretion topic.
JR - Discretion (+)
JRPA s.2(5) Power to refuse relief
Statutory Powers
General
'Statutory powers' (SPs) - of which the most common form are 'statutory powers of decision' (SPDs) - of course draw their necessary public or 'administrative' aspect from statutes (ie. legislation). This makes their determination typically easy - that is, authority for the act or decision will almost always be set out - either directly or indirectly in a statute - somewhere.
But another feature of 'statutory powers' (again, especially SPDs) is that - being created by statute - the legislature will almost always have considered (in the course of legislative drafting) the creation of an 'appeal' right to challenge the act or decision. Practically, the JR doctrine of 'exhaustion' [which see below] almost always requires that anyone challenging a statutory power must first 'exhaust' all available appeal rights (and appeals can be both before tribunals, the courts - or both) before they consider a JR. And when that is done, the doctrines of stare decisis or issue estoppel will render any further JR activity redundant.
While JRPA s.2(1) provides that "the court may, despite any right of appeal, by order grant any relief" (that is, JR relief) the practical reality is that one should almost always pursue available appeals (though the recent Yatar line of cases points out when a JR may be useful, despite the availability of an appeal) [see the sub-topic Review - Appeal-JR Combined (Yatar)].
These above issues are unique to the JR of 'statutory powers' [JRPA s.2(1)1] - and distinct from the JR using 'prerogative writ' authority [JRPA s.2(1)1]. This latter JR authority is addressed in the next-following discussion of the 'public-private' distinction.
Statutory Powers - Introduction
JR - Statutory Powers - General
JR - Statutory Powers of Decision (+)
JRPA s.1 "Definitions" (licence)
JRPA s.1 "Definitions" (statutory power)
JRPA s.1 "Definitions" (statutory power of decision)
Statutory Powers Procedure Act (SPPA)
'Statutory powers of decision' (SPDs) (mentioned above), are so dominant in JR (and for that matter, in appellate administrative law) that they have their own Ontario statute, the Statutory Powers Procedure Act (SPPA) - which acts as a sort of 'minimum standards' to ensure the procedural fairness is addressed in SPD proceedings. The SPPA pivots centrally on the near-identical statutory definitions of "statutory power of decision" set out in both Acts [JRPA s.1; SPPA s.1(1)].
Because of this frequency of interaction, below I set out key SPPA provisions for convenient reference.
SPPA s.1 "Definitions" (statutory power of decision)
SPPA s.1 "Definitions" (tribunal)
SPPA s.3(1) Application of Act
SPPA s.3(2) Where Act does not apply
SPPA s.32 Conflict
The Isthatlegal website has it's own Statutory Powers Procedure Act (Ontario) topic, associated with the Administrative topic.
Public versus Private
It is with the 'prerogative writ' JRs [ie. those under the authority of JRPA s.2(1)1], that the 'public-private' distinction becomes central. Rather than wade it's way through English common law regarding these old latin doctrine (ie. "mandamus, prohibition or certiorari"), the Ontario courts has essentially merged these doctrine into this single 'public-private' dichotomy.
Simply, 'public' acts or decisions are JR-justiciable - while 'private' ones are not.
Public v Private - Introduction
JR - Public v Private (+)
JR - Public v Private - Exceptions
Justiciability and Specific Aspects of Administrative Activity
**** THESE ALL NEED REVIEW
These links address the justiciability (or not) of specific types and aspects of administrative activity.
JR - Against Decisions
JR - Not for Advisory Roles (+)
JR - Political Issues
JR - Not Against Reasons
JR - Not Applicable to Superior Court Decisions
JR - Academic
JR - Charter-Constitutional
JR - Policy
JR - Investigation
**** do later, consider re-allocation ...
====================== sub-delegation ========================================
**** consider Delegated Legislation
JR - Statutory Powers of Decision (SPD) - Delegated
*** JR of Rules [this stuff is in 'Delegated Legislation']
SPPA s.27 Rules, etc., available to public
. you need to clarify the JR of Rules
JR - Against Rules, Not Decisions
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============================== 3. JR ROUTES ====================================
3. JR ROUTES
Comment
There are three procedural forums or routes that an 'application for judicial review' may be effectively brought in. The first two - the primary s.6(1) JRPA Divisional Court route (the 'main option'), and the less-used s.6(2) JRPA Superior Court (the 'urgent option') - are, procedurally, 'applications' under the Rules of Civil Procedure (RCP). The term 'application' has a specific procedural meaning in the RCP, in contrast to what are called 'actions'. Actions are what you likely know as 'lawsuits', the most common civil proceedings - typically a lawsuit for damages in contract or tort.
A third option is the very little-used s.8 JRPA Superior Court 'damages' route (the 'JR-damage option'), which is commenced by an 'action' - although it may be converted to an application later.
An additional distinction to assist in clarifying this small mess is that the first two options (which are 'applications') all share the same JR-defining remedies, which are set out in the s.3 'Main Orders (Remedies)' portion of the JR Legal Guide [and which are listed in JRPA 2(1)]. These are the 'prerogative writs' [JRPA 2(1)1], and 'injunctions and declarations regarding statutory powers' [JRPA 2(1)2]. On the other hand, the JR-Damage option need only involve the latter remedy: the 'injunctions and declarations regarding statutory powers' [JRPA 2(1)2].
Over-whelmingly, most JR proceedings are brought as non-urgent 'applications' [under JRPA s.6(1)]. The availability of the unusual s.8 'action' may come as a surprise to many readers - but it's a worthwhile discovery as it allow the combination of damage claims (indeed, all action remedies) with some JR remedies.
Main Option
Divisional Court 'Main' Option [JRPA 6(1)]
JRPA s.6(1) Application to Divisional Court
'Urgent' Option
Superior Court 'Urgent' Option[JRPA 6(2)]
'Urgent' Option JR Cases
JRPA s.6(2) Application to judge of Superior Court of Justice
JRPA s.6(3) Transfer to Divisional Court
Damages Action Option
Superior Court Damage Option [JRPA 8]
JR-Damage Cases
JRPA s.8 Summary disposition of actions
JRPA s.6(3) Transfer to Divisional Court
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============================= 4. STANDING =======================================
4. STANDING NEEDS 2nd STAGE REVIEW
In this JR context, 'standing' concerns what entities will be 'parties' to a JR - that is, those entities that have typically-full rights of participation in the proceeding. This sub-topic is separate from the law of , which addressed court-ordered limitations on case participation - under RCP R13.
General
Drawing on generic 'standing' law [linked below], the basic principle is that anyone (or any corporation) that has an 'interest' in the JR, is entitled to be a 'party'.
For example, take a common JR situation - that of an Ontario labour JR. In such a case the parties will normally include the employer and the union (who typically represents the employee/s), who are named from the start when the JR application is filed. But variations can arise when - for instance, in duty of fair representation cases where the employee alleges that the union did not represent them adequately - and their interests diverge. As well, a common standing issue in administrative proceedings is over whether the tribunal itself (for Ontario labour matters, the OLRB) has standing. There can be are more standing variations.
Standing - General NEEDS REVIEW
JRPA 1 "Definitions" (party) [this definition of 'party' ensures that labour and municipal entites may be parties, it is not an exhaustive listing]
Tribunal or Decision-Maker
Any tribunal or other decision-maker has the right to be a party [JRPA 9(2-3)].
Standing - Tribunal
JRPA 9(2-3) 'Exerciser of power may be a party'
Attorney-General
As well, the Attorney-General has the right to receive notice of - and to be heard at - the JR hearing [JRPA 9(4)] - which can make them a de facto party, at their discretion.
Standing - Notice to and Standing of the Attorney-General
JRPA 9(4) 'Notice to Attorney General'
Unincorporated Associations
Standing - Unincorporated Associations
Other Issues
Standing - Public Interest
Standing - Private
Standing - Federal
Standing - Discretion
The Isthatlegal website has it's own Standing topic, which for present JR purposes turns largely on the 'public versus private' dichotomy.
******* NEEDS REVIEW
Standing - Courts
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======================== 5. LIMITATIONS ========================================
5. LIMITATIONS
Comment
The law of judicial review (JR) limitations underwent major charges on 08 July 2020. Prior to that date there was no general statutory limitation on JRs, and the court relied on an equitable 'laches' (delay) principle. This the courts generally counted at six months from the triggering 'events' to the commencement of the JR application (though I have seen some cases requiring actual perfection of the application within six months). Since 08 July 2020 however, the law is much more akin to the standard 30-day appeal timeline, with extensions under the Rules of Civil Procedure (though the JR timeline and extension are located in the Judicial Review Procedure Act (JRPA s.5).
This new JR limitation period is quite nasty. It requires the applicant to commence their JR application within 30 days of the events that they hope to JR. That is, it's not counted 30 days from the applicant 'learning' of the events (which is called 'discoverability', the method used in the main non-JR Limitations Act [s.5(1)]), rather it's counted directly from the triggering decision or event - even if you don't yet know of it. If you miss the events by 30 days you have to both move quickly and hope you fall under an extension provision [JRPA s.5(2-3)], otherwise you're out of time.
As well, these new JRPA limitation changes can have profound additional negative impacts for potential JR applicants. Most would-be JR applicants will run into the well-established JR 'exhaustion' doctrine [see 'Common JR Issues', below] - which has been recognized in several forms: ie. 'prematurity', 'adequate alternative remedy' (AAR) and the doctrine against interlocutory admin appeals (ie. no interlocutory appeals). The 'exhaustion doctrine' will typically bar a JR if any other adequate procedure exists to address the issue - but one doesn't know for sure if this (or these) alternatives will be adequate until those procedures are concluded, which could be a matter of years later. So, in order to be safe, JR litigants will often want to file all potential procedures (including the JR) to 'preserve their rights', logically following them up with a JR 'stay' (suspension) motion while pursuing the non-JR procedures first.
The net effect then of this shortening of the limitation period for JRs is to drastically increase the uncertainty, effort and expense of challenging government administrative actions. Without a firm statutory 'extension' to extend the JR limitation while the applicant is pursuing these legally-required alternatives it puts them at serious risk of forever losing their rights to challenge these decision and actions. This violates quite sensible rules like the prohibition against a 'multiplicity of proceedings' [CJA 138], and drastically increases the already profound logistic burden on the JR applicant.
Cases
Laches/Limitation - Pre-8 July 2020 Amendment
Limitation - Post-8 July 2020 Amendment (+)
Limitations - 'Continuous Course of Conduct'
JRPA 5(1) 'Limitations'
JRPA 5(2) 'Extension'
JRPA 5(3) 'Same, Other Acts'
JRPA 5(4) 'Transition'
COVID
COVID - 2020 Time Limits Suspension Explanation
COVID - 2020 Time Limits Suspension Cases
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============================ 6. PROCEDURES ====================================
6. PROCEDURES
Application of R38(2) and R68
RCP - R38.01(2) Application of R38
RCP - R68.02(1-2) Applicable Procedure
Commencement of JR
Notice of Application
JR - Notice of Application
JR - 'Pleadings'
RCP - R68.01(1) How JR Application Commenced
RCP - R38.04 Content of Notice
RCP - R38.05 Issuing of Notice (Prior Issuance)
RCP - R38.06 Service of Notice
JRPA 9(1) - Sufficiency of application
Place of Hearing
RCP - R38.03(1-1.1,) Place of Hearing
RCP - R68.01(2) Venue Transfer Where Not Filed at Regional Centre
Date of Hearing
RCP - R38.03(2-4) Date of Hearing
RCP - R68.03 Hearing Date in Divisional Court
Notice of Appearance
RCP - R38.07 Notice of Appearance
Abandoned Applications
RCP - R38.08 Abandoned Applications
Form
Form 68A
Stays Pending JR
SPPA s.25(1-2) Appeal operates as stay, exception
Summary Dismissal of JR
Quashing
JR - Quashing
Dismissal for Delay
JR - Dismissal for Delay
RCP - R68.06 Dismissal of JR for Delay
RCP - R68.07 Automatic Dismissal of JR by Registrar for Delay
Vexatious Proceedings
JR - Frivolous and Vexatious [RCP R2.1]
RCP - R38.13 Applications under s. 140 (3), Courts of Justice Act (Vexatious proceedings)
Motions
For the most part, the procedures for motions within a judicial review are the same as for motions in general civil litigation [ie. for actions and (non-JR) applications], which see: Civil Litigation - Motions.
Interim Orders
JR - Motions [R37]
JRPA s.4 Interim order
Striking Documents [under R25.11]
RCP - R38.12 Striking out a Document
Perfection
Filings
JR - Factum
RCP - R68.04 Application Records and Factums
RCP - R68.05 Certificate of Perfection
Confirmation of Application
RCP - R38.09.1 Confirmation of Application
Orders and Judgements
RCP - R38.10 Disposition of Application
RCP - R38.11 Setting aside Judgment on Application Made without Notice
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==================== 7. COMMON JR ISSUES ========================================
7. COMMON JR ISSUES
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Procedural Fairness
The single most-common ground of JR is that of 'procedural fairness'. In it's most basic form it is concerned with whether the JR applicant:
... knew the case he had to meet, had an opportunity to respond and had an impartial decision maker consider his case fully and fairly: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at para. 41. [Pless v. Canada (Attorney General) (Fed CA, 2026), para 9]
This Isthatlegal website has a separate Fairness topic.
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Irregularities
Irregularities [JRPA 3]
JRPA 3 Defects in form, technical irregularities
SPPA s.21.1 Correction of errors
SPPA s.28 Substantial compliance
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Errors
JRPA s.2(2) Error of law
JRPA s.2(3) Lack of evidence
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Administrative 'Exhaustion' Doctrine
[Note: This includes: JR 'prematurity', 'adequate alternative remedy' (AAR), 'doctrine against interlocutory admin review' (ie. no interlocutory appeals/JRs), etc.]
The courts view judicial review (JR) as a discretionary last resort. Since JR is essentially an administrative law remedy, that dictates the logical result that all purely administrative remedies must be 'exhausted' before an applicant can seek a judicial review (ie. court) remedy. IMHO the courts have not grappled simply with this reality [with the exception of these judges (I expect there are more that I haven't found yet): Judicial Review - Prematurity-AAR Merger?]. The result is that we find what can be labelled simply as 'administrative exhaustion' doctrine cases spread throughout CANLII under the ostensibly separate doctrines of: 'prematurity', 'adequate alternative remedy' (AAR), 'no interlocutory appeals/JR' and more.
For 'prematurity' the leading case is Volochay v. College of Massage Therapists of Ontario (Ont CA, 2012)], and for AAR it's Strickland v. Canada (Attorney General) (SCC, 2015). The court in Strickland makes it clear that deciding what might be an 'adequate alternative remedy' case is not a task for using 'checklists' [para 43], but a truly discretionary matter of assessing the 'adequacy' (including the appropriateness) of the potential alternative administrative remedy. So while a party can - and almost certainly will - cite similar case law, the related fact and practical situation will weigh very significantly in the decision.
Relevant (but generally considered separate) to this above 'merger' is a line of cases (Yatar) which came into prominence in 2022 [ultimately resulting in Yatar (SCC, 2024)], where judicial review could be sought in conjunction with statutorily-limited appeal (ie. typically, appellate jurisdiction limited to 'questions of law' only, eg. RTA s.210). Yatar - like 'administrative exhaustion' - turned largely on JR being remedially-discretionary, under JRPA s.2(5).
Prematurity
JR - Prematurity (+)
JR - Prematurity Exceptions (+)
Adequate Alternative Remedy (AAR)
JR - Adequate Alternative Remedy (Strickland) (+)
Exhaustion Doctrine Merger
Judicial Review - 'Exhaustion': A Prematurity-AAR Merger?
Administrative Exhaustion Doctrine and Yatar
JR - Administrative Exhaustion - Yatar
SPPA s.21.2(1) Power to review
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Procedural Grounds of JR [is this the non-admin 'fairness' issue? if so, sort that whole issue too ...]
'Procedural grounds of judicial review (aka hearing 'errors') - in which I include common evidentiary treatment and reasons for decision errors, are - by their nature - common to review grounds in other forms of legal review - such as appeals, administrative reconsiderations, re-openings and others in other procedural regimes. They typically revolve around errors relating to hearing procedure, evidence treatment, or issues that only become apparent after the party reads the 'reasons for decision' (if any). This is because they all use some form of the traditional common law 'hearing' at the heart of their procedure, and consequentially their errors tend to be both predictable and consistent in their nature.
As such, any wholesale listing of 'grounds of review' [ie. including review from whatever procedural regime they occured in] is inevitably a catalog of things that 'went wrong' at hearing/trial. Such a listing will be triply useful as: 1. sources of recognized review grounds, 2. sources of recognized law to address problems in a current hearing (that is, immediately at the hearing level), and 3. cross-applicable to the other review regimes (ie. appeals, JRs, recons etc) for the same purposes as 1 or 2.
Therefore I locate these cases and issues in a combined fashion at this link:Review - Grounds Note importantly that - in practice - many grounds of JR that are advanced are ones drawn from the substantive law that you are dealing with (and not listed there). They are drawn from the more specific 'rights' law that you are engaged with (eg. residential tenancies, contract, tort, and so on).
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Privative Clauses
Privative Clauses (+)
**** this needs a preliminary re-write
============================ 8. EVIDENCE ========================================
8. EVIDENCE
JR Evidence - Introduction
JR Record
Statutes
Administrative - Record [SPPA 20]
JR - Record to be Filed [JRPA 10]
Keeprite Plus Doctrine
JR - Keeprite Current (1980) (+)
JR - Keeprite Exceptions (+)
JR - Record - Payne (2000)
Other
Fresh Evidence
JR - Fresh Evidence
JR - Record - Supplementing Record
Practice
JR - Evidence Practice
Other
JR - Evidence - Summons
JR - Non-Hearing Decisions
JR - Transcript
JRPA s.10 Record to be filed in court
SPPA 20 - Record of Proceeding
SPPA s.15(1) What is admissible in evidence at a hearing
SPPA s.15(2) What is inadmissible in evidence at a hearing
SPPA s.15(3) Conflicts
SPPA s.16 Notice of facts and opinions
SPPA s.29(1-3) Prohibition on photographs, recordings, dissemination; Non-Application; Offence
-------------- blurb -------------------------------------------------------------
Expanding the Case: Fresh Law and Fresh Evidence
This is another very common issue in a JR (and appeals as well). It comes in two forms: ie. 'fresh law' (my term) and 'fresh evidence' (a recognized term). Basically they both amount to expanding either the law argued, or the evidence relied upon (or both) beyond what was advanced at their first oppourtunity to call evidence or to put submissions (typically, the first 'hearing'). With some limited exceptions, courts require all parties to 'advance their best foot forward' from the start - a requirement that I feel is unrealistic (and unfair), especially in this age of widespread self-presentation.
Fresh Law
[link to /review/fresh-law]
Fresh Evidence
[this is the 'JR - Record' issue, you are considering merging it with 'Appeal - Evidence' issue, though the latter does have CJA provisions in aid]
---------------------------------
======================== 9. STANDARD OF REVIEW (SOR) ===========================
9. STANDARDS OF REVIEW (SOR)
If you are unfamiliar with JR law, this next (essential) issue may come as a surprise. JR procedures are - quite counter-intuitively - not about whether the administrative decision-maker 'got it right' - or 'correct', they are about whether it's decision or action was 'reasonable'. 'Reasonableness' is a large (and growing) doctrine of law that examines whether legally-required procedures (which can vary with the nature of each case) were followed in the making of the decision or action. In other words, the central inquiry is not necessarily whether they got it 'right' - just whether they 'did' it right.
This is an aspect of 'deference' to the administrative decision-maker and - more recently - the result of political self-compromise by the Supreme Court, which extends greater respect to administrative actors (mostly tribunals). The thinking is that administrative tribunals and similar are creatures of the legislation (and thus, the argument goes, are more 'democratic') rather than the Superior courts, which are creatures of the constitution [Constitution Act, 1867, s.96] (which is supposedly less democratic).
If you are interested in this oddity of modern Canadian law, you can review some of it in JR - SOR - Tolerated Uncertainty. But if you are seriously exploring conducting a JR you will have to learn how to 'think in' - and to 'speak' the language of - 'reasonableness'.
JR - SOR - Introduction
'Reasonableness'
'Reasonableness' is the presumptive SOR for JRs.
VAVILOV - JR - Vavilov is the Doctrinal Starting Point
JR - SOR - Vavilov is Starting Point
VAVILOV - JR - SOR - Reasonableness - 'A Single Concept'
JR - SOR - 'Reasonableness' in a Nutshell
JR - SOR - 'Patent Unreasonableness'
JR - SOR - Reasonableness - Nature of Error (Law, Fact and Mixed Fact and Law)
JR - SOR - 'Reasonableness' Test Examples (+)
'Reasonableness Review'
'Reasonableness Review' is the multi-factored process of implementing the JR standard of review (SOR).
The Nature of 'Reasonableness Review'
VAVILOV - JR - SOR - Reasonableness Review - The Nature of Reasonableness Review
JR - SOR - Reasonableness Review - The Nature of Reasonableness Review
General
JR - SOR - Reasonableness Review - General
Justification
VAVILOV - JR - SOR - Reasonableness Review - Justification - GeneralJustification - Impact of the Decision
VAVILOV - JR - SOR - Reasonableness Review - Justification - Impact of the Decision
JR - SOR - Reasonableness Review - Impact of the Decision
Justification - Submissions of the Parties
VAVILOV - JR - SOR - Reasonableness Review - Justification - Submissions of the Parties
JR - SOR - Reasonableness Review - Submissions of the Parties
Justification - Evidence
VAVILOV - JR - SOR - Reasonableness Review - Justification - Evidence
JR - SOR - Fact Issues
JR - SOR - 'Reasonableness' - Fact-finding
Justification - Statutory Interpretation
VAVILOV - JR - SOR - Reasonableness Review - Justification - Statutory Interpretation
JR - SOR - Reasonableness Review - Justification - Statutory Interpretation
Justification - Other Statutory or Common Law
VAVILOV - JR - SOR - Reasonableness Review - Justification - Other Statutory or Common Law
JR - SOR - Reasonableness Review - Justification - Other Statutory and Common Law
Justification - Governing Statutory Scheme
VAVILOV - JR - SOR - Reasonableness Review - Justification - Governing Statutory Scheme
JR - SOR - Reasonableness Review - Justification - Governing Statutory Scheme Internal Coherence
VAVILOV - JR - SOR - Reasonableness Review - Internally Coherent
JR - SOR - 'Reasonableness' - Failure of Rationality
JR - SOR - 'Reasonableness' - 'Line-by-line Treasure Hunt'
Use of Pre-Vavilov Precedents
VAVILOV - JR - SOR - Reasonableness Review - Justification - Past Practices
JR - SOR - 'Reasonableness' - Use of Pre-Vavilov Cases
Pre-Vavilov Cases
Use of Post-Vavilov Precedents
JR - SOR - 'Reasonableness' - Examining Legal Precedents
'Reasonableness' Exceptions
'Reasonableness' exceptions are just that - issues where 'reasonableness' is not the applicable SOR. When an exception applies (as below) the SOR is that of 'correctness', more recently re-termed 'appellate SOR' - which is (unsurprisingly) the default SOR for appeals (correctness for legal issues, palpable and overriding error for fact - and mixed error of fact and law).
General
VAVILOV - JR - SOR - Exceptions - General
VAVILOV - JR - SOR - Rule-of-Law Exceptions to Reasonableness
JR - SOR - 'Reasonableness' Exceptions - General
Central Importance to the Legal System
VAVILOV - JR - SOR - Rule of Law Exceptions - Central Importance to the Law
JR - SOR - 'Reasonableness' Exception - 'Central Importance to the Legal System' (+)
Constitutional Questions
VAVILOV - JR - SOR - Rule of Law Exceptions - Constitutional Questions
JR - SOR - 'Reasonableness' Exception - Constitutional Questions (+)
Tribunal Boundaries
VAVILOV - JR - SOR - Rule of Law Exceptions - Tribunal Boundaries
JR - SOR - 'Reasonableness' Exception - Tribunal Boundaries
New (and Failed) Exceptions
VAVILOV - JR - SOR - 'Reasonableness' Exceptions - Future
JR - SOR - 'Reasonableness' Exceptions - Future
>>> JR - SOR - 'Reasonableness' Exception - Human Rights
>>> JR - SOR - 'Reasonableness' Exception - Evidentiary Privilege
>>> JR - SOR - 'Reasonableness' Exception - Concurrency
>>> JR - SOR - 'Reasonableness' Exception - Indigenous
>>> JR - SOR - 'Reasonableness' Exceptions - Where Both JR and Appeal Advanced
>>> JR - SOR - 'Reasonableness' Exceptions - Ultra Vires Delegated Legislation (+)
>>> JR - SOR - 'Reasonableness' Exception - Bias
>>> JR - SOR - 'Reasonableness' Exception - Jurisdiction
>>> JR - SOR - 'Reasonableness' Exception - Persistent Discord [FAILED]
>>> JR - SOR - 'Reasonableness' Exception - Immigration Appeals [FAILED]
>>> JR - SOR - 'Reasonableness' Exception - 'First-Instance Decision-Maker' [NEW]
>>> JR - SOR - 'Reasonableness' Exception - 'Court in same position to decide facts' [UNCERTAIN]
Exceptions to Exceptions
JR - SOR - Exceptions to Exceptions - Fact Issues
Reasons for Decision
'Reasonableness' (unsurprisingly) is largely about any 'reasons for decision' issued by tribunals (and courts later on review).
VAVILOV - JR - SOR - Reasonableness Review - Reasons - When Required
JR - SOR - 'Reasonableness' and 'Reasons for Decision'
JR - SOR - No Reasons
JR - SOR - Reasonableness - Not Own Analysis
Procedural Fairness
VAVILOV - JR - SOR - Reasonableness Review - Fairness
JR - SOR - Fairness
Reasonableness versus Procedural Fairness
'Reasonableness' and Specific Areas of Law
Jurisdiction
VAVILOV - JR - SOR - Non-Exception - Jurisdiction
JR - SOR - Statutory Range of the Decision-Maker
International Law
JR - SOR - International Law
Cabinet Confidentiality
JR - SOR - Cabinet Confidentiality
Charter
JR - SOR - Charter
Policy
JR - SOR - Policy
Other Issues
Remedies
VAVILOV - JR - Remedy - General
VAVILOV - JR - Remedies
JR - SOR - Remedies
Privative Clauses
VAVILOV - JR - Privative Clauses
JR - SOR - Privative Clauses
Expertise
VAVILOV - JR - SOR - Expertise
JR - SOR - Expertise (+)
Statutory Interpretation
JR - SOR - Statutory-Interpretation
The Role of Errors in 'Reasonableness'
JR - SOR - The Role of Errors in 'Reasonableness'
Reconsiderations (Administrative)
JR - SOR - Reconsideration
Finality
JR - SOR - Finality
Vavilov Critique
Tolerated Uncertainty in Law
VAVILOV - JR - SOR - Tolerated Uncertainty in Law
VAVILOV - JR - SOR - Tolerating Uncertainty - Administrative Stare Decisis JR Bump-Up
JR - SOR - Tolerated Uncertainty
Administrative Law as Pseudo-Law
VAVILOV - JR - SOR - Reasonableness Review - Administrative Law as Pseudo-law
Stratas JA
JR - SOR - 'Reasonableness' and Stratas JA
Other
JR - SOR - 'Reasonableness' and Other Critique
**** this needs a preliminary re-write
============================ 10. REMEDIES ========================================
10. REMEDIES
Remedies - Introduction [JRPA 2(1)]
Remedies Cases
JR - Remedies Generally
JR - 'Remit/Decide' Choice on Grant (+)
Prerogative Writs Cases
JR - Prerogative Writs - Generally [JRPA 2(1)1]
JR - Prerogative Writs - Non-Statutory Powers [JRPA 2(1)1]
JR - Certiorari [JRPA 2(1)1]
JR - Mandamus [JRPA 2(1)1] (+)
JR - Prohibition [JRPA 2(1)1]
JR - Quo Warranto
JRPA s.7 Summary disposition of mandamus, etc.
JR - Declarations [JRPA 2(1)2]
JR - Remedies - Set Aside [JRPA 2(4)]
JRPA 2(4) - Power to Set Aside
Non-JR Remedies
Most injunction and declaration legal 'activity' does not involve judicial reviews, but the principles governing them are quite similar. For reference, these are my 'general' injunction and declaration sections.
JR - Declarations
JR - Injunctions and Stays
**** where is R59.06 material? locate it here? at motions? at civlit?
============================ 11. RE-OPENING =======================================
11. RE-OPENING
A 're-opening' is just that, a re-opening of the case after a judgment. Motions for re-openings cannot be brought after the order is formalized (ie. entered as formal orders with the court), but then a R59.06 set-aside motion may be sought on unusual facts - see R59.06 Set-Aside Motions. It is quite rare for either re-openings, or R59.06 set aside motions, to be successful.
Re-opening
**** this needs further sorting
================================= X. OTHER ====================================
Federal
Judicial Review - Federal versus Provincial Courts
Leave to JR
Judicial Review - Leave to Judicial Review
Stay Pendi
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