Nov 16, 2021
The Top 5 Tips for Challenging a Tribunal Decision
Judicial review is a discretionary remedy.
Unlike an appeal, in which the Court takes its jurisdiction to review the tribunal’s order pursuant to an express statutory right, judicial review asks the Court for relief by way of what were once known as the “prerogative writs”, which include certiorari, mandamus and prohibition.
Under subsection 2(1)1 of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 (the “JRPA”), the Divisional Court can:
- compel the tribunal or administrative body to perform a statutory duty (mandamus);
- require that the tribunal cease certain action (prohibition); or
- quash the tribunal’s decision for not having been made properly (certiorari).
Given the extraordinary nature of the relief sought, lawyers and parties who have argued a proceeding at the tribunal level should wade carefully into the waters of judicial review. In this case, experience counts - mistakes can be fatal.
Below is a brief summary of the primary considerations any party should contemplate before embarking on judicial review.
1. Is the Application Premature?
Generally, the Divisional Court will discourage parties from fragmenting a tribunal decision mid-course and bringing a premature application for judicial review. However, “exceptional circumstances” may nonetheless justify early intervention.
In a recent decision of the Divisional Court, Bannis v. Ontario College of Pharmacists, 2020 ONSC 6115, the Court tied its reluctance to hear premature judicial review applications to concerns about administrative delay and respect for the delegation of decision-making authority to the tribunal:
…Normally, courts are reluctant to review interlocutory or interim steps in an administrative proceeding, preferring to wait until the proceeding has run its course in order to avoid fragmentation of the administrative process and delay, as well as to respect the legislative decision to confer decision-making authority on the administrative tribunal. Therefore, judicial review will be refused where the application is premature, unless there are exceptional circumstances: see Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 ["Volochay"] at para. 70. [emphasis added]
Accordingly, lawyers who seek a remedy mid-hearing should consider if the threshold of “exceptional circumstances” has been met.
2. Deference or No Deference?
If one of the bases for the judicial review application is substantive review or loss of jurisdiction, the standard of review by which the Court assesses that decision must be identified.
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada established that Canadian Courts should apply the deferential standard of “reasonableness” review in all cases of judicial review.
Courts should only deviate from the presumption of reasonableness review, and apply the less deferential standard of “correctness”, where “required by a clear indication of legislative intent or by the rule of the law”.
Correctness review applies where:
- the governing Act requires the Court to assess the tribunal’s decision on a correctness standard;
- the governing Act creates a statutory right to appeal the tribunal’s decision to the Court (in which case the ordinary appellate standards of review apply, i.e. “palpable and overriding error” or “correctness”);
- constitutional or Charter issues are engaged;
- general questions of law of “central importance to the legal system as a whole” are raised; and
- where there are issues concerning the jurisdictional boundaries between two or more administrative bodies.
Notably, the list of exceptions to reasonableness review is not closed.
3. Was the Tribunal’s Decision Procedurally Unfair?
Administrative bodies throughout Canada have a duty to act fairly in the investigation, prosecution and adjudication of disputes.
This includes obligations such as ensuring that parties subject to the administrative process have the right to be heard (known as the doctrine of audi alteram partem), a legitimate expectation that a particular procedure will be followed, and the right to adjudication free from a reasonable apprehension of bias.
What amounts to procedural unfairness is very much a context-specific exercise.
The Court will take the following factors into account in deciding the scope of the duty of fairness:
- the nature of the decision and the decision process followed;
- the statutory scheme pursuant to which the body operates;
- the importance of the decision to the individual affected;
- the legitimate expectations of the person challenging the decision; and
- the nature of deference accorded to the administrative body.
See generally Baker v. Canada (Minister of Citizenship & Immigration),  2 S.C.R. 817.
4. Is Fresh Evidence Required?
Like an appeal, a judicial review application is decided by the Divisional Court on the basis of the record before the tribunal.
Subsection 10 of the JRPA provides that the tribunal or administrative decision-maker has an express obligation to file the record of proceedings before the tribunal with the Court upon receipt of a notice of application for judicial review.
In rare situations, however, circumstances may have changed since the tribunal decision was made, requiring that the Court have before it “fresh evidence” that was unavailable to the tribunal.
The threshold for seeking to admit fresh evidence on a judicial review application is high. Exceptionally, “affidavit evidence may be admitted to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by reference to the record alone”: Queensway Excavating & Landscaping Ltd. v. Toronto (City), 2019 ONSC 5860 (Div. Ct.) at para. 46, citing Re. Keeprite Workers' Independent Union et al. and Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.).
5. Does the Judicial Review Application Stay the Tribunal’s Order?
The commencement of an application for judicial review may not necessarily stay the underlying tribunal order.
To obtain a stay of administrative proceedings pending the resolution of an application for judicial review under subsection 106 of the Courts of Justice Act, R.S.O. 1990, c.C.43, the moving party has to meet the following threshold:
- There must be a serious issue to be tried;
- The moving party will suffer irreparable harm if interim relief is not granted; and
- The “balance of convenience” favours granting the stay.
See generally RJR MacDonald Inc. v. Canada (Attorney-General),  1 S.C.R. 311.
If an application for judicial review is deemed to be premature, a Court has the discretion to refuse the stay of the tribunal proceeding on the basis that there is no serious issue to be tried: Pan v. College of Physicians and Surgeons of Ontario, 2021 ONSC 5325 (Div. Ct.).
How we can help you with your Judicial Review Application
The considerations above illustrate that parties and lawyers should not embark on judicial review applications lightly.
The level and nature of expertise required for effective advocacy at the tribunal level may not be the same as what is required in the Divisional Court.
Our appellate litigation team at Torkin Manes offers assistance to parties and lawyers with respect to any and all aspects of an application for judicial review, including:
- A preliminary assessment of the merits of the application, including opinions and legal research;
- Drafting Notices of Application for Judicial Review;
- Drafting materials for the perfection of the application, including facta; and
- Written and oral advocacy for judicial review hearing.
Should you require assistance with your judicial review application, contact Marco P. Falco, a Partner in the Litigation Department at Torkin Manes LLP, who focuses on applications for judicial review at email@example.com.