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Under Construction at 01 July 2022

Here's the old Guide version for the time being: Judicial Review.


>>>>> the old judicial-review.xxx /case-extracts are inserted here [at 17 June, 2nd time], but caution to only link NEW to /JR.xxx or /appeal-JR.xxx files, while gradually deleting old /judicial-review.xxx files

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> T of C [drawn from /appeals]

*** this ToC isn't accurate

xxx INTRODUCTION

SUBSTANTIVE JR LAW
xxx Remedies
xxx Statutory Powers (SP)
xxx Common Grounds of Judicial Review
xx Standard of Review [needs a 2nd re-work based in /Vavilov]
xxx Procedural Fairness and Natural Justice
xxx JR Evidence Law
Fresh Law [issues? objections separate?]

PROCEDURAL JR LAW
Standing
Limitations
Commencement, Time Limits, Time Extensions and Amendment
Procedural Application [R38]
Procedure and Perfection
Record
Motions on Appeal [uses the trial level motions?]
Summary Dismissal [canvasss for /appeal commonality]
Main Orders [still needed?]
Costs

MISCELLANEOUS
Stays [under s.106?]
Miscellaneous




1. INTRODUCTION

Introduction



JR Basics
Discretionary to the Court





2. 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)






3. REMEDIES

Remedies - Introduction [JRPA 2(1)]


Remedies Cases
Remedies Generally

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]
Non-JR Remedies
Declarations
Injunctions and Stays


++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++ STANDARD OF REVIEW (SOR) +++++++++++++++++++++
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
XXX


4. STANDARD OF REVIEW

Standard of Review - Introduction


Fairness - SOR (1)

------------------

Judicial Review - Standard of Review

Judicial Review - Consequences of the Reasonableness Standard

Judicial Review - Expertise

Judicial Review Standard of Review (pre-Vavilov)
Vavilov

Judicial Review Standard of Review (post-Vavilov)
Part 2 Part 3
Part 4

Judicial Review - Legal Conflict with Reasonableness Standard of Review





X. COMMON GROUNDS OF JUDICIAL REVIEW

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]





X. PROCEDURAL FAIRNESS

Procedural Fairness (administrative law only)





X. 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
SPD Non-Hearing





X. 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






X. STANDING

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



************* continue here

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
++++++++++++++++++++++++++++++++ LIMITATIONS +++++++++++++++++++++++++++++++
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++


X. LIMITATIONS *NEW*

---------- Limitations
JRPA 5 (1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).

Extension
JRPA 5(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.

Same, other Acts
JRPA 5(3) Subsection (2) applies with respect to any limitation of time for the bringing of an application for judicial review under any other Act, unless that Act expressly provides otherwise.

Transition
JRPA 5(4) Subsection (1) applies with respect to the judicial review of a decision that is made or of a matter that occurs on or after the day section 2 of Schedule 10 to the Smarter and Stronger Justice Act, 2020 comes into force.
------------------------

- split cases to pre and post amendment; make the amendment central

Judicial Review - Limitation


Time - 2020 Time Limits Suspension

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+++++++++++++++++++++++++++++ COMMENCEMENT PLUS +++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++


X. COMMENCEMENT, TIME LIMITS, TIME EXTENSIONS AND AMENDMENT

*** this needs category re-working

---------- Application to Divisional Court [any /appeal-routes issue here - 6(4) seems duplicative with CJA 6(1) ...]
JRPA 6 (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court.

Application to judge of Superior Court of Justice
JRPA 6(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
Transfer to Divisional Court
JRPA 6(3) Where a judge refuses leave for an application under subsection (2), he or she may order that the application be transferred to the Divisional Court.

Appeal to Court of Appeal
JRPA 6(4) An appeal lies to the Court of Appeal, with leave of the Court of Appeal, from a final order of the Superior Court of Justice disposing of an application for judicial review pursuant to leave granted under subsection (2).
-----------------------------

------------------
JRPA 8 Where an action for a declaration or injunction, or both, whether with or without a claim for other relief, is brought and the exercise, refusal to exercise or proposed or purported exercise of a statutory power is an issue in the action, a judge of the Superior Court of Justice may on the application of any party to the action, if he or she considers it appropriate, direct that the action be treated and disposed of summarily, in so far as it relates to the exercise, refusal to exercise or proposed or purported exercise of such power, as if it were an application for judicial review and may order that the hearing on such issue be transferred to the Divisional Court or may grant leave for it to be disposed of in accordance with subsection 6 (2).

---------- pleadings
Sufficiency of application
JRPA 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.

------------------- pleadings
References in other Acts, etc.

JRPA 11 (1) Subject to subsection (2), where reference is made in any other Act or in any regulation, rule or by-law to any of the proceedings enumerated in subsection 2 (1), such reference shall be read and construed to include a reference to an application for judicial review.

Proceedings under Habeas Corpus Act [this already allocated to /main orders (remedies)]

JRPA 11(2) Nothing in this Act affects proceedings under the Habeas Corpus Act or the issue of a writ of certiorari thereunder or proceedings pursuant thereto, but an application for judicial review may be brought in aid of an application for a writ of habeas corpus.
-----------------------

-------------------- pleadings
JRPA 1 In this Act,
“application for judicial review” means an application under subsection 2 (1);

------------- How Commenced

R68.01(1) An application to the Divisional Court or to the Superior Court of Justice for judicial review under the Judicial Review Procedure Act shall be commenced by notice of application, and where the application is to the Divisional Court the notice of application shall be in Form 68A.

--------------- /commencement/venue
R68.01(2) If the application is made to the Divisional Court and is not commenced at a regional centre, the local registrar in the place where it is commenced shall forthwith transfer a copy of the notice of application and of any material filed in support of the application to the court office in the regional centre of the region where the application is to be heard, and all further documents in the application shall be filed there.

----------- Hearing Date in Divisional Court
68.03 A notice of application shall state that the application is to be heard on a date to be fixed by the registrar at the place of hearing.


Time - 2020 Time Limits Suspension

Judicial Review - Delay

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++ APPLICATION PROCEDURES [R38] ++++++++++++++++++++++
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X. APPLICATION PROCEDURES


Rule 68 - Proceedings for Judicial Review


================================ R38.01 Application
Application of the Rule

38.01
x(1) Rules 38.02 to 38.12 apply to all proceedings commenced by a notice of application under rule 14.05, subject to subrules (2) and (3). [n/a]

***(2) Rules 38.02 and 38.09 do not apply to applications to the Divisional Court.

x(3) Rules 38.02 to 38.12 apply to an application made under subsection 140 (3) of the Courts of Justice Act, unless otherwise provided in rule 38.13 and subject to any modifications set out in that rule. [n/a - frivolous R2.1]
==================================


========== Applicable Procedure [from R68]
Divisional Court

68.02(1) Rule 38, except as provided in subrule 38.01 (2), and rules 68.03 to 68.07 apply to applications to the Divisional Court for judicial review.

RULE 38 APPLICATIONS — JURISDICTION AND PROCEDURE
38.01 Application of the Rule [except (2)]
38.02 Applications — To Whom to be Made [n/a, under R38.01(2)]
38.03 Place and Date of Hearing
38.04 Content of Notice
38.05 Issuing of Notice
38.06 Service of Notice
38.07 Notice of Appearance
38.08 Abandoned Applications
38.09 Material for Use on Application [n/a, under R38.01(2)]
38.09.1 Confirmation of Application
38.10 Disposition of Application
38.11 Setting aside Judgment on Application Made without Notice
38.12 Striking out a Document
38.13 Applications under s. 140 (3), Courts of Justice Act
================================

====================================== [JRPA 6(2) SupCt Applications on urgency][application from R68]
Superior Court of Justice
68.02(2) Rule 38 applies to applications to the Superior Court of Justice for judicial review under subsection 6 (2) of the Judicial Review Procedure Act.

RULE 38 APPLICATIONS — JURISDICTION AND PROCEDURE
38.01 Application of the Rule
38.02 Applications — To Whom to be Made
38.03 Place and Date of Hearing
38.04 Content of Notice
38.05 Issuing of Notice
38.06 Service of Notice
38.07 Notice of Appearance
38.08 Abandoned Applications
38.09 Material for Use on Application
38.09.1 Confirmation of Application
38.10 Disposition of Application
38.11 Setting aside Judgment on Application Made without Notice
38.12 Striking out a Document
38.13 Applications under s. 140 (3), Courts of Justice Act
===================================================

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+++++++++++++++++++++++++++ URGENT APPLICATIONS +++++++++++++++++++++++++++
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Urgent Applications [JRPA 6(2)]


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++++++++++++++++++++++++++++ PERFECTION ++++++++++++++++++++++++++++++++++++++
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X. PERFECTION

---------- Record to be filed in court
JRPA 10 When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.

========== Application Records and Factums
Applicant
68.04(1) The applicant shall deliver an application record and a factum,

(a) where the nature of the application requires a record of the proceeding before the court or tribunal whose decision is to be reviewed, within thirty days after the record is filed; or

(b) where the nature of the application does not require such a record, within thirty days after the application is commenced.

68.04(2) The applicant’s application record shall contain, in consecutively numbered pages arranged in the following order,

(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;

(b) a copy of the notice of application;

(b.1) a copy of the reasons of the court or tribunal whose decision is to be reviewed, with a further typed or printed copy if the reasons are handwritten;

(c) a copy of all affidavits and other material served by any party for use on the application;

(d) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and

(e) a copy of any other material in the court file that is necessary for the hearing of the application.

68.04(3) The applicant’s factum shall be signed by the applicant’s lawyer, or on the lawyer’s behalf by someone he or she has specifically authorized, and shall consist of,

(a) Part I, containing a statement identifying the applicant and the court or tribunal whose decision is to be reviewed and stating the result in that court or tribunal;

(b) Part II, containing a concise summary of the facts relevant to the issues on the application, with specific reference to the evidence;

(c) Part III, containing a statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue;

(d) Part IV, containing a statement of the order that the court will be asked to make, including any order for costs;

(d.1) a certificate stating how much time (expressed in hours or fractions of an hour) the lawyer estimates will be required for his or her oral argument, not including reply;

(e) Schedule A, containing a list of the authorities referred to; and

(f) Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws,

in paragraphs numbered consecutively throughout the factum.

Respondent

68.04(4) The respondent shall deliver an application record and a factum within thirty days after service of the applicant’s application record and factum. R.R.O. 1990, Reg. 194, r. 68.04 (4).

68.04(5) The respondent’s application record shall contain, in consecutively numbered pages arranged in the following order,

(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; and

(b) a copy of any material to be used by the respondent on the application and not included in the application record.

68.04(6) The respondent’s factum shall be signed by the respondent’s lawyer, or on the lawyer’s behalf by someone he or she has specifically authorized, and shall consist of,

(a) Part I, containing a statement of the facts in the applicant’s summary of relevant facts that the respondent accepts as correct and those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with specific reference to the evidence;

(b) Part II, containing the position of the respondent with respect to each issue raised by the applicant, immediately followed by a concise statement of the law and the authorities relating to that issue;

(c) Part III, containing a statement of any additional issues raised by the respondent, the statement of each issue to be immediately followed by a concise statement of the law and the authorities relating to that issue;

(d) Part IV, containing a statement of the order that the court will be asked to make, including any order for costs;

(d.1) a certificate stating how much time (expressed in hours or fractions of an hour) the lawyer estimates will be required for his or her oral argument, not including reply;

(e) Schedule A, containing a list of the authorities referred to; and

(f) Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws that are not included in Schedule B to the applicant’s factum,

in paragraphs numbered consecutively throughout the factum.

Copies for Use of the Court

68.04(7) The parties shall file three copies of their application records and factums for the use of the court.

Material may be Filed as Part of Record

68.04(8) Any material served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.

Transcript of Evidence

68.04(9) A party who intends to refer to a transcript of evidence at the hearing shall file three copies of the transcript with the application record and factum, despite subrule 34.18 (2) (time for filing transcript).

========== Certificate of Perfection

68.05(1) The applicant shall file with the application record a certificate of perfection,

(a) stating that all the material required to be filed by the applicant for the hearing of the application has been filed; and

(b) setting out, with respect to every party to the application and any other person entitled by statute or by an order under rule 13.03 (intervention) to be heard on the application,

(i) the name, address and telephone number of the party’s or other person’s lawyer, or

(ii) the name, address for service and telephone number of the party or other person, if acting in person.

68.05(2) When the certificate of perfection has been filed, the registrar shall place the application on a list for hearing and give notice of listing for hearing (Form 68B) by mail to the parties and the other persons named in the certificate of perfection.

-----

Judicial Review - Perfection

Judicial Review - Practice


+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
++++++++++++++++++++++++++++++++ RECORD +++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Record

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++ MOTIONS (interim orders) +++++++++++++++++
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++


X. MOTIONS

---------- Interim order
JRPA 4 On an application for judicial review, the court may make such interim order as it considers proper pending the final determination of the application.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
++++++++++++++++++++++++++++++++++ SUMMARY DISMISSAL ++++++++++++++++++++++ +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++


X. SUMMARY DISMISSAL

Summary Dismissal - Discretionary - Adequate Alternative Remedy (Strickland)


Judicial Review - Prematurity
Part 2
Part 3

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

Judicial Review - Quashing


========== Dismissal for Delay
Motion by Respondent

68.06(1) Where the applicant has not,

(a) delivered an application record and factum within the time prescribed by subrule 68.04 (1); or

(b) filed a certificate of perfection as required by subrule 68.05 (1),

the respondent may make a motion to the registrar at the place of hearing, on ten days notice to the applicant, to have the application dismissed for delay.

Notice by Registrar

68.06(2) Where the applicant has not delivered an application record and factum and filed a certificate of perfection within one year after the application was commenced, the registrar may serve notice on the applicant that the application will be dismissed for delay unless the applicant delivers an application record and factum and files a certificate of perfection within ten days after service of notice.

Registrar to Dismiss where Default not Cured

68.06(3) Where the applicant does not cure the default within ten days after service of a notice under subrule (1) or (2) or such longer period as a judge of the Divisional Court allows, the registrar shall make an order in Form 68C dismissing the application for delay, with costs fixed at $750, despite rule 58.13.

Review of Registrar’s Dismissal

68.06(4) A party affected by an order of the registrar under subrule (3) may make a motion under subrule 61.16 (5) to set aside or vary the order.

========== Automatic Dismissal by Registrar for Delay
68.07(1) Unless the court orders otherwise, the Registrar shall dismiss an application to the Divisional Court for delay if the application is not set down for hearing or terminated by any means before the later of the fifth anniversary of the filing of the notice of .... where's this?


+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
++++++++++++++++++++++++++++++ MISCELLANEOUS ++++++++++++++++++++++++++++++ +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Judicial Review and the Charter
Judicial Review and Investigation

Judicial Review and Damages

Summary Disposition of Action [JRPA s.8]

----------

Judicial Review - Evidence

Judicial Review - Federal versus Provincial Courts

Judicial Review - The Record
Part II

Judicial Review - Privative Clauses

CC0

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