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Judicial Review- Overview
- Procedural Options
- Main Orders (Remedies)
- Administrative 'Exhaustion' Doctrine
- Standard of Review (SOR)
- Public v. Private
- Procedural Grounds of JR
- Fresh Law
- Evidence on JR
- JR Perfection
- Parties to a JR
- Privative Clauses
- JR Limitations
- Motions on a JR
- Re-opening
- Miscellaneous
1. OVERVIEW
JR - Introduction
JR - Basics
JR - Discretion
JR - No Development of New Law in Judicial Review
2. PROCEDURAL OPTIONS
There are three procedural routes that an 'application for judicial review' may be effectively brought by. 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 can only involve the latter remedy: the 'injunctions and declarations regarding statutory powers' [JRPA 2(1)2].
Over-whelmingly, most JR proceedings are brought as 'applications'. 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.
1. MAIN OPTION [JRPA 2(1)]
2. 'URGENT' OPTION [JRPA 6(2)]
Urgent JR Cases (1)
3. JR-DAMAGE OPTION [JRPA 8]
JR-Damage Cases (1)
Rule 38 - Applications - Jurisdiction and Procedure
Rule 68 - Proceedings for Judicial Review
JRPA 9(1) - Sufficiency of application
SPPA 20 - Record of Proceeding
3. MAIN ORDERS (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 7 - Summary disposition of mandamus, etc.
Statutory Powers - Introduction
Statutory Powers (Declarations and Injunctions) Cases
JR - Statutory Powers - General
JR - Statutory Powers of Decision (+)
JR - Declarations [JRPA 2(1)2]
JRPA 2(4) - Power to Set Aside
JR Justiciability
JR - Justiciability (+)
JR - Against Decisions
JR - Not for Advisory Roles (+)
JR - Against Rules, Not Decisions
JR - Political Issues
JR - Not Against Reasons
JR - Not Applicable to Superior Court Decisions
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
4. 'ADMINISTRATIVE EXHAUSTION' DOCTRINE[Note: This includes: JR 'prematurity', 'adequate alternative remedy' (AAR), 'doctrine against interlocutory admin review' (ie. no interlocutory appeals/JRs), etc.]
Comment
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) (+)
Merger
JR - Administrative Exhaustion - Prematurity-AAR Merger?
Administrative Exhaustion Doctrine and Yatar
JR - Administrative Exhaustion - Yatar
5. STANDARD OF REVIEW (SOR)
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' 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
Justification
VAVILOV - JR - SOR - Reasonableness Review - Justification - GeneralJustification - Impact of the Decision
VAVILOV - JR - SOR - Reasonableness Review - Justification - 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. The only other substituted SOR I have seen is that of 'correctness'.
General
VAVILOV - JR - SOR - Exceptions - General
VAVILOV - JR - SOR - Rule-of-Law Exceptions to ReasonablenessJR - 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 Considered) Exceptions
VAVILOV - JR - SOR - 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
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
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
Other Issues
Remedies
VAVILOV - JR - Remedy - General
VAVILOV - JR - Remedies
Privative Clauses
VAVILOV - JR - Privative Clauses
JR - SOR - Privative Clauses
Expertise
VAVILOV - JR - SOR - Expertise
JR - SOR - Expertise (+)
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
6. PUBLIC v. PRIVATE
Public v Private - Introduction
JR - Public v Private (+)
JR - Public v Private - Exceptions
7. PROCEDURAL GROUNDS OF JR
'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).
Irregularities [JRPA 3]
JRPA 3 Defects in form, technical irregularities
JRPA 2(2) Error of Law
JRPA 2(3) Lack of Evidence
8. FRESH LAW
When a party wants to raise new legal issues at the review (appeal or judicial review) (eg. if they didn't raise them at the trial or first hearing), that is an issue of fresh law [SS: my term].
Review - Fresh Law
9. EVIDENCE ON JR
JR Evidence - Introduction
Record
Administrative - Record [SPPA 20]
JR - Record to be Filed [JRPA 10]
JR - Record - When to Address Motion to Add Material
Keeprite Doctrine
JR - Keeprite Current (+)
JR - Keeprite Exceptions (+)
Fresh Evidence
JR - Fresh Evidence
Practice
JR - Evidence Practice
Other
JR - Non-Hearing Decisions
JR - Federal Cases [*** send to /Federal-Court]
10. JR PERFECTION
JR - Factum
11. PARTIES TO A JR
The issue here is what entities are 'parties' to a JR. Unlike non-JR proceedings, any tribunal (ie. the decision-maker) has the right to be a party, and the Attorney-General has the right to be heard at the JR hearing [JRPA 9(2-4)].
Standing - Tribunal
Standing - Courts
JRPA 9(2-3) 'Exerciser of power may be a party'
JRPA 1 "Definitions" (party)
Standing - Attorney-General
JRPA 9(4) 'Notice to Attorney General'
Standing - Special Interest
Standing - Federal
12. PRIVATIVE CLAUSES
Privative Clauses (+)
13. JR LIMITATIONS
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 a 'laches' (delay) principle. This they generally counted at six months from the '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 JRPA).
These new JR limitation periods are quite politically nasty. Basically, they require the applicant to commence their JR application within 30 days of the events that they hope to JR - that's not 30 days from the applicant 'learning' of the events, it's counted without any concept of 'discoverability' (the standard principle of conventional civil proceeding limitation). If you miss the events by 30 days you have to hope you fall under an extension provision, otherwise you're likely toast.
As well, these 08 July 2020 JRPA limitation amendments have huge other negative impacts of Ontario law (more than the nasty ones intended). The 30-day time limit distorts, without accomodation, the well-established JR law of 'adequate alternative remedy' that motivates a party to use up all other available remedies before they have recourse to JR. Now, with JRPA s.5, parties are motivated to initiate JR immediately - thus violating the AAR rule and as well infringing the prohibition against a 'multiplicity of proceedings' [CJA 138] - here with all of a reconsideration review, an appeal and a judicial review. These problems have become manifest in Shearer v Oz (Div Ct, 2021) and Yatar v. TD Insurance Meloche Monnex (Ont CA, 2022).
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'
Time - 2020 Time Limits Suspension
14. MOTIONS ON A JR
Judicial Review - Motions [R37]
Regardless of the 'procedural option' [see s.2] you use, motions are all governed by Rule 37 - Motions: Jurisdiction and Procedure.
Additionally, JRPA 4: Interim Order provides that "(o)n an application for judicial review, the court may make such interim order as it considers proper pending the final determination of the application".
15. RE-OPENING
A 're-opening' is just that, a re-opening of the case after a final judgment. Motions for re-openings cannot be brought after the order is formalized, but then a R59.06 set-aside may be sought on rare facts.
Re-opening
16. MISCELLANEOUS
Judicial Review - Quashing
Judicial Review - Dismissal for Delay
Judicial Review and the Charter
Judicial Review and Investigation
Judicial Review - Practice
Judicial Review - 'Pleadings'
Judicial Review - Federal versus Provincial Courts
Judicial Review - Leave to Judicial Review
Judicial Review - Stay Pending JR
FLOATERS TO BE ALLOCATED
|||Definitions of the Courts of Justice Act [Courts of Justice Act, s.1 (Ontario)] [#COURTS]
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