Judicial Review (Ontario) Legal Guide
(01 November 2021)
Starting a Judicial Review
- Procedural Options
- Main Orders (Remedies)
- Adequate Alternative Remedy (Prematurity)
Substantive JR Law
- Standard of Review (SOR)
- Public v. Private
- Common Grounds of JR
- Procedural Fairness
- Fresh Law
- Evidence on JR
- Parties to a JR
- Privative Clauses
Procedural JR Law
- JR Limitations
- Motions on a JR
Starting a Judicial Review
Discretionary to the Court
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
Judicial Review Procedures Act
3. MAIN ORDERS (REMEDIES)
Remedies - Introduction [JRPA 2(1)]
Prerogative Writs Cases
Prerogative Writs - Generally [JRPA 2(1)1]
Certiorari [JRPA 2(1)1]
Mandamus [JRPA 2(1)1]
Prohibition [JRPA 2(1)1]
Statutory Powers - Introduction
Statutory Powers (Declarations and Injunctions) Cases
Statutory Powers - General
Statutory Powers of Decision (1)
Declarations [JRPA 2(1)2]
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.
Injunctions and Stays
4. ADEQUATE ALTERNATIVE REMEDY (PREMATURITY)
The courts view judicial review as a last resort. That is, if there are any other anticipated legal remedies or stages available, the courts will normally require the applicant to use them first before they apply for judicial review [a leading case is Volochay v. College of Massage Therapists of Ontario (Ont CA, 2012)]. This 'prematurity' can take several forms, including the general prohibition against judicially-reviewing or appealing administrative interlocutory orders (on the theory that you might win regardless), or avoiding administrative regimes entirely out of a party's preference.
The courts locate their jurisdiction for this 'prematurity' doctrine on the discretionary nature of judicial review, which in Ontario they find in Ontario's Judicial Review Procedure Act (JRPA) [see JRPA 2(1) "may", and JRPA 2(5)] - but it exists in the common law as well.
Prior to the case of Strickland v. Canada (Attorney General) (SCC, 2015) [linked at the first AAR case-extract file], the courts generally referred to this doctrine as 'prematurity' [see those cases below], but since Strickland they tend to use the term 'adequate alternative remedy' [AAR] [see those cases below].
The court in Strickland makes it clear that deciding a '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 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.
Judicial Review - Prematurity | Part 2 | Part 3
Judicial Review - Adequate Alternative Remedy (Strickland) | Part 2 | Part 3
Substantive JR Law
5. STANDARD OF REVIEW (SOR)
JR - SOR - INTRODUCTION
Pre-Vavilov Cases (1)
JR - SOR - 'Reasonableness' in a Nutshell
JR - SOR - 'Reasonableness' Characterized (1) | Part 2
JR - SOR - 'Reasonableness' Exceptions - General
JR - SOR - 'Reasonableness' Exception - 'Central Importance to the Legal System'
JR - SOR - 'Reasonableness' Exception - Concurrency
JR - SOR - Reconsideration
JR - SOR - Privative Clauses
JR - SOR - 'Patent Unreasonableness'
JR - SOR - Expertise (1)
JR - SOR - 'Reasonableness' and Stratas JA
6. PUBLIC v. PRIVATE
Public v Private - Introduction
Public v Private (Paine, Setia)
Public v Private (2)
Public v Private (3) (Highwood)
Public v Private (4) (Federal)
Public v Private (5)
7. COMMON GROUNDS OF JR
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These are grounds applicable to both judicial review and appeals.
Misapprehension of Evidence
Other Common Grounds for Review
These are grounds set out in the JRPA as applicable to judicial reviews.
JRPA 2(2) Error of Law
JRPA 2(3) Lack of Evidence
JRPA 3 Defects in form, technical irregularities
Irregularities [JRPA 3]
8. PROCEDURAL FAIRNESS
9. 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 hearing), this is an issue of fresh law.
10. EVIDENCE ON JR
JR Evidence - Introduction
Record to be Filed in Court [JRPA 10]
Hearing Record [SPPA 20]
Keeprite Exceptions (2)
11. PARTIES TO A JR
Standing - Tribunal
JRPA 9(2-3) 'Exerciser of power may be a party'
Standing - Attorney-General
JRPA 9(4) 'Notice to Attorney General'
Standing - Special Interest
Standing - Federal
12. PRIVATIVE CLAUSES
Privative Clauses (1)
Procedural JR Law
13. JR LIMITATIONS
The law of judicial review (JR) limitations underwent major charges at 08 July 2020. Prior to that date there was no general statutory limitation, so 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 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 08 July 2020 JRPA limitation amendments seem to me to have huge negative impacts of Ontario law, and not only ones that are 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 infringing the prohibition against a 'multiplicity of proceedings' [CJA 138] with all of a 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
Regardless of the procedural option [see s.4] 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".
Judicial Review - Quashing
Judicial Review - Dismissal for Delay
Judicial Review and the Charter
Judicial Review and Investigation
Judicial Review - Practice
Judicial Review - Federal versus Provincial Courts