Oct 1, 2021

Most common judicial review application mistakes

By Marco P. Falco
The Lawyer’s Daily View original

As judicial resources become evermore scarce, governments across the country are relying on administrative tribunals to adjudicate disputes. 

The delegation of decision-making power away from the courts to statutory tribunals involves benefits and burdens. On the one hand, having matters decided by expert tribunals promotes access to justice and efficiency. However, not having issues resolved by the courts has an impact on the evolution of common law. 

To resolve this tension, the judicial review of administrative action has become a key aspect of Canadian jurisprudence. 

In many ways, judicial review is its own creature. Lawyers who have represented clients at the tribunal level may not have the necessary experience to deal with a review of that decision in Divisional Court - after all, there is a fundamental distinction between the presentation of a case at the tribunal level and asking the court to scrutinize the tribunal's decision on the basis of substantive or procedural review. 

Below is a list of some of the most common errors made by counsel when seeking judicial review in Ontario: 

1. Not challenging statutory power of decision

The statute governing judicial review applications in Ontario, the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 (the JRPA), provides the court with the jurisdiction to grant remedies "in the nature of mandamus, prohibition or certiorari," i.e. the old prerogative writs. This allows the court to compel administrative action, prohibit it further or quash it entirely. But to grant such relief, the Divisional Court must be reviewing the decision of an administrative body made pursuant to a "statutory power of decision." 

Broadly speaking, the JRPA defines a statutory power of decision as a power or right conferred by or under a statute to make a decision deciding the legal rights of any person or party and the eligibility of any person to receive or continue a benefit or licence. 

If the decision under review was not made pursuant to a statute, it cannot be challenged by judicial review. If there is an express statutory right of appeal from the decision to a court, then judicial review is also unavailable. 

This may pose a problem for challenging the decisions of bodies that may be quasi-public in nature, such as sport associations or other bodies that may or may not be subject to statutory governance. There is case law governing this issue which should be canvassed carefully before embarking on judicial review. 

2. Failing to commence judicial review application on time

There was a time when judicial review applications in Ontario could be commenced within six months of the tribunal decision at common law: Jeremiah v. Ontario (Human Rights Commission) [2008] O.J. No. 3013. 

However, recent amendments to the JRPA have overtaken this common law "limitation period." The JRPA now provides that judicial review must be commenced within 30 days of the tribunal's decision. A party who misses that deadline has the additional burden of persuading the court to extend the time for the application by showing there are "apparent grounds for relief" and "no substantial prejudice or hardship will result" by the delay. 

The success of a motion to extend the time to perfect a judicial review application will likely depend on the facts, but no counsel wants to find themselves in this unenviable position. 

3. Failing to alert Attorney General of Ontario of the application

Under the JRPA, any notice of an application for judicial review is required to be served on the Attorney General of Ontario, who has a right to be heard in person or by counsel on the application. 

A failure to serve the Attorney General of Ontario with the notice of application will result in further delay and the possible rejection of the application itself by the Divisional Court. 

4. Failing to identify and argue standard of review

The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 sec 65, established that a presumptive deferential standard of review of reasonableness would apply to the judicial review of administrative action in Canada. However, there are a number of exceptions in which the less deferential standard of correctness applies. 

A failure to identify and argue what the applicable standard of review is to your decision may leave the Divisional Court to solve the problem on its own, without the benefit of the parties' submissions. Not only does this add an additional burden to the court's adjudicative task, but it increases the chances of the judicial review decision being subject to further appellate review. 

5. Failing to identify breaches of procedural fairness

Another common error made by unversed counsel is the failure to identify a breach of procedural fairness during the tribunal hearing. Breaches of procedural fairness or natural justice, while less common, constitute a discrete basis for challenging administrative action. 

Unversed counsel tend to focus on substantive review in their applications, i.e. whether the tribunal decision is reasonable or correct. But allegations about the right to be heard or bias can have a significant impact on the court's review of a hearing. Such grounds should not be ignored. Indeed, if there is a legitimate basis for procedural review, courts are generally inclined to grant relief to the applicant. 

Why judicial review requires expertise 

The errors above illustrate that the potential for counsel to make a fatal mistake in the commencement, perfection or argument of a judicial review application is significant. The assumption that the lawyer who argued a case at the tribunal level is equally equipped to do so on judicial review may very well be misplaced. 

Judicial review, by its nature, requires expertise.