This checklist identifies some of the most important factors an applicant should consider when deciding whether to seek judicial review in the Ontario Divisional Court.
Judicial review is the process by which a claimant challenges a state action made by a court or other government actor in court. In Ontario, judicial review is governed by the Judicial Review Procedure Act,RSO 1990, c. J.1 (the “JRPA”).
Under the JRPA, a plaintiff can apply for judicial review to ask the court to:
- annul the administrative decision (certiorari);
- prohibit the decision-maker from taking any further action (prohibition); and or
- compel the decision-maker to do something under its applicable law (mandamus).
For more information on judicial review, seeJudicial Review (Ont.) andJudicial review: standard of review, Checklist of Appeals and Judicial Review Pitfalls, Checklist of Common Errors in Judicial Review Applications (ON) and Considerations before challenging a court decision.
1. Will the matter be referred to court?
The success of judicial review can be a mixed blessing.
The reversal of a decision by the Divisional Court generally means that the case will be returned to the court or to the decision-maker for reconsideration, in accordance with the decision of the Divisional Court.
In the 2019 Supreme Court of Canada decision, Canada (Minister of Citizenship and Immigration) v. Vavilov,  SCJ #65 (“Vavilov“), the majority held that, when the court finds an administrative decision to be unreasonable, it “will most often be expedient to refer the matter back to the decision-maker to reconsider the decision, this time with the benefit of the reasons of the court” There are “limited scenarios” where returning a case to the original decision maker would be inappropriate, including when it becomes apparent to the court that returning the case “would serve no purpose”.
The court will consider factors such as:
- fairness to the parties;
- the urgency of finding a solution to the dispute;
- the nature of the special plan;
- whether the decision-maker had a real opportunity to speak out on the issues;
- party fees; and
- efficient use of public resources.
2. Will the administrative decision be reversed?
Most administrative decisions are subject to “substantive review”.
This means that the court will analyze the merits of the decision and either defer to it, applying what is known as the “reasonableness review”, or show little deference to the decision, applying what is known as “correctness review”.
Vavilov creates a presumption of reasonableness in all cases. That being said, the presumption of reasonableness review can be rebutted when:
- Parliament has indicated that it intended to apply a different standard of review, that’s to saya statute expressly prescribes the standard of review, there is a legal right to appeal the decision, or the case raises a question of law such as statutory interpretation or the scope of the decision-maker’s authority.
- The rule of law requires that the less deferential standard of “correctness” apply, that’s to say, because certain legal questions, such as constitutional questions, are at issue, or because there are general questions of law of central importance to the entire legal system. Courts may also apply a correctness review when two or more courts have assumed jurisdiction over a case, creating an “operational conflict” between the two bodies.
Another ground for court intervention relates to breaches of procedural fairness. This includes situations where the decision-maker may have violated fundamental principles of due process and natural justice, such as where the claimant’s right to be heard, to be informed of the reasons for the decision or the right to a impartial tribunal have been compromised (see generally, Baker v. Canada (Minister of Citizenship and Immigration), SCJ No. 39(CCS)).
3. Is there a right of appeal?
If applicable law requires that the administrative decision at issue be appealed to a court, judicial review as a discretionary remedy under the JRPA is not available.
The appellant is required to challenge the decision through the appeal mechanism provided by law.
In such cases, the ordinary standards of appellate review, that’s to say“palpable and overriding error” and “correction”, apply (Vavilovciting Housen vs Nikolaisen, SCJ No. 31 (CCS)).
A party who ignores the avenue of appeal and pursues an application for judicial review risks having the judicial review quashed on a preliminary motion.
4. Is new evidence needed?
In the interests of fairness, applications for judicial review are almost always decided on the basis of the record as it existed at the court level.
subsectionten of the Ontario JRPA requires the court to submit the record of its proceedings to the Divisional Court “immediately”, upon commencement of an application for judicial review.
The content of the court case file is defined in s.20 from Ontario Statutory Powers Exercise Act,RSO 1990, c. S.22.
There is a general prohibition against introducing “new evidence” in an application for judicial review. However, there are “rare exceptions” where new evidence may be admissible to: establish general context to assist the court; demonstrate procedural defects that are not apparent from the record of the reasons for the decision; and demonstrate the complete absence of evidence to support a material finding of fact.
The claimant must also demonstrate that the new evidence should have been included in the record of the proceedings and that the documents properly constitute “new evidence” on the claim. See, for example, Lovell c. Ontario (Minister of Natural Resources and Forestry), OJ No. 210 (SCJ).
5. Is the application for judicial review late?
subsection 5(1) of the Ontario JRPA requires that an application for judicial review be brought within 30 days of the impugned decision.
A plaintiff who fails to meet this deadline will have to convince the Divisional Court, under s. 5(2), that the time for making the claim should be extended because there are “apparent grounds for relief” and “no substantial harm or prejudice will result to any person affected” by the delay.
The above considerations demonstrate that applications for judicial review are largely creatures in their own right. Lawyers or clients unfamiliar with the mechanics and substance of judicial review should exercise caution.