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(Ontario)

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TOPICS

Judicial Review (Ontario) Legal Guide

Legislative Currency

    Starting a Judicial Review

  1. Overview
  2. Procedural Options
  3. Main Orders (Remedies)
  4. Adequate Alternative Remedy (Prematurity)

    Substantive JR Law

  5. Standard of Review (SOR)
  6. Public v. Private
  7. Common Grounds of JR
  8. Procedural Fairness
  9. Fresh Law
  10. Evidence on JR
  11. Parties to a JR
  12. Privative Clauses

    Procedural JR Law

  13. JR Limitations
  14. Motions on a JR

    Other Issues

  15. Miscellaneous




Starting a Judicial Review




1. OVERVIEW

Introduction


JR Basics
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
JRPA 9(1) - Sufficiency of application
SPPA 20 - Record of Proceeding



3. MAIN ORDERS (REMEDIES)

Remedies - Introduction [JRPA 2(1)]

Remedies Cases
Remedies Generally
'Remit/Decide' Choice on Grant

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]

JRPA 7 - Summary disposition of mandamus, etc.

Statutory Powers - Introduction

Statutory Powers (Declarations and Injunctions) Cases
Statutory Powers - General
Statutory Powers of Decision (1)

Declarations [JRPA 2(1)2]

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.

Declarations
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.

In 2022 a separate lines of AAR cases came into prominence, where a JR was sought after statutorily-limited appeal was either pursued in parallel with the JR, or was
factually unavailable (these were normally cases where appeal was limited to 'questions of law'). The leading case was Yatar, and it held that JR may still be available but the court could decline to hear the case under it's JR discretion [JRPA 2(1) and 2(5)] to refuse to hear it.

Judicial Review - Prematurity | Part 2 | Part 3

Judicial Review - Adequate Alternative Remedy (Strickland) | Part 2 | Part 3

Judicial Review - Where Limited Appeal (Yatar)




Substantive JR Law




5. STANDARD OF REVIEW (SOR)

JR - SOR - INTRODUCTION

Pre-Vavilov Cases
Pre-Vavilov Cases (1)

'Reasonableness'
JR - SOR - 'Reasonableness' in a Nutshell
JR - SOR - The 'Reasonableness' Test (1) | Part 2 | Part 3
JR - SOR - 'Reasonableness' and 'Reasons for Decision'
JR - SOR - 'Reasonableness' - Examining Legal Precedents

'Reasonableness' Exceptions
JR - SOR - 'Reasonableness' Exceptions - General
JR - SOR - 'Reasonableness' Exception - 'Central Importance to the Legal System'
JR - SOR - 'Reasonableness' Exception - 'Jurisdictional Lines'
JR - SOR - 'Reasonableness' Exception - Concurrency
JR - SOR - 'Reasonableness' Exception - Indigenous

Other Issues
JR - SOR - The Role of Errors in 'Reasonableness'
JR - SOR - Reconsideration
JR - SOR - No Reasons
JR - SOR - Privative Clauses
JR - SOR - 'Patent Unreasonableness'
JR - SOR - Expertise (1)
Administrative Stare Decisis

Vavilov Critique
JR - SOR - 'Reasonableness' and Stratas JA
JR - SOR - 'Reasonableness' and Other Critique



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)
Public v Private (6)

Public v Private - Exceptions



7. COMMON GROUNDS OF JR

These are grounds applicable to both judicial review and appeals.

Misapprehension of Evidence

Discretion

Inadequate Reasons

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]

CJA 96 - Rules of Law and Equity



8. PROCEDURAL FAIRNESS

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.

Fresh Law



10. EVIDENCE ON JR

JR Evidence - Introduction

Evidence Practice
Record to be Filed in Court [JRPA 10]
Hearing Record [SPPA 20]

Keeprite Exceptions
Keeprite Exceptions (2)
Keeprite Current
Non-Hearing Decisions

Federal JR Cases



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
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 (1)




Procedural JR Law




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

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".




Other Issues




15. 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



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