JR practice Flashcards
Who hears applications on JR
FC
SC
SC has inherent jurtisdiciton but this can be rebitted by FC
What statute grants FC jurisdiction and over what
s18(1)
Subject to section 28, the Federal Court has exclusive original jurisdiction:
To issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief against any federal board, commission or other tribunal.
To hear and determine any application or other proceeding for relief like relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
What is a federal board, comission or other tribunal
Section 2(1) of the Federal Courts Act 1985
Any body or person exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made under a prerogative of the Crown
Whats not included
Provincial statutes
S96 courts
Arbitrators
Whatg is ONSC
state case
s 96 court
Crevier: To maintain the RoL, legislation can’t completely remove section 96’s courts’ jurisdiction to review executive action.
what governs ONSC JR
JRPA
says has prower over statutory powers
amnd statutory powers of decision under provence statute
s6 div court hears it but if 6(2) requires it, then SC will hear
Summary of jurisdiction
Federal courts act: Federal courts exercise exclusive jurisdiction over actions taken under federal statutes/prerogatives.
JRPA: ONSC has jurisdiction over statutory powers and statutory powers of decisions taken under provincial law.
Note: In Ontario, The divisional court presumptively hears all applications brought under the JRPA.
Whats standing
Ability to bring the application to court
What are the types of satndnbg for fc
Direct
Public interest stadning
Sirect standing
Section 18(1)(1) of the Federal Courts Act
An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
CanWest MediaWorks Inc. v. Canada (Health), 2007 FC 752 p. 13
Held: For an applicant to be directly affected, the issue must be one which adversely affects their legal rights/ imposes legal obligations on them/ prejudicially affects them directly.
Chinatown & Area Business Association v. Canada (Attorney General) p. 70
Held: A person will not be directly affected if they were not a party to the decision and their interest is purely commercial.
Public interest standing
Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society p. 253
Held: The courts weigh three factors:
Whether the case raises a serious justiciable issue.
Whether the party bringing the action has a real stake/ genuine interest in the outcome.
Whether the proposed suit is a reasonable/effective means to bring the case to court by looking at various factors.
NB: The courts are to exercise this discretion generously.
Standing in ONSC
Private Standing in the ONSC
FRPA does not provide a test for standing.
As a result, it is governed by the common law:
Finlay v (Canada) Minister of Finance
Held: Must have a direct personal interest in the operation or application of a law.
Tribunal standing
General rule: The tribunal cannot actively participate in the review/ appeal proceedings beyond issues about jurisdiction/ an explanatory role.
Recently: Standing to an administrative tribunal to actively participate is now seen as a matter of the court’s discretion depending on the circumstances of the case and the context in which standing is being sought.
Children’s Lawyer for Ontario v. Goodis (2005), 75 O.R. (3d) 309 (Ont. C.A.)
Held: 2 considerations that the court must have under s9(2) of JRPA:
The importance of having a fully informed adjudication of the issues before the court.
The importance of maintaining tribunal impartiality
Because the most common JR decision is to quash and send the decision back to the tribunal, there’s an issue of impartiality as the tribunal has been told that their decision was decided incorrectly and is now being told to consider specific factors when making the decision.
Regulation/policy decision: Just applying policy/ no adversarial outcome.
Decision on an individual: The court may have to exercise discretion, and the tribunal has a limited role in the reconsideration.
Summary of standing
Federal court: The AG and anyone directly affected by a decision has standing.
The decision must affect the applicant’s legal rights/ impose legal obligations/ cause prejudicial effects.
ONSC: The applicant will have private interest standing if they have a direct personal interest in the decision.
Both courts: Can seek public interest standing under the Eastside test.
Whats prematurity
Courts exercise restraint when using oversight on executive power.
They have the discretion to refuse relief on a judicial review on the basis that the application is premature.
CAtegories of prematurity
Lack of ripeness.
Interim/interlocutory decisions.
Lack of ripeness
Situations where there is not a coherent decision to judicially review.
You cannot seek a review of a decision that has not been made.
Rationale
Until an act is taken, it is difficult to determine whether it was ultra vires.
Correspondence with someone from the tribunal does not constitute a decision.
A decision on judicial review should completely dispose of the matter.
Concerns for judicial economy.
Example of lack of ripeness
Challenging statute that has yet to be enacted
Signifant instance of lack of ripeness
If seeking JR on the grounds of PF, unless the procedure inevitably leads to an unfair result, an application will be premature until the actual decision is made.
This is because a tribunal can make a number of unfair decisions throughout the proceedings and still the end decision can be deemed as fair looking at the entirety of the proceedings.
Inetrloc
General rule: The court will only review final decisions.
Justification: Interim/ interlocutory decisions lengthen/complicate/fragment administrative judicial decision-making, ie. Judicial economy considerations.
Considerations
Significant breach of procedural fairness (e.g., inadequate notice, exclusion of relevant evidence at hearing, bias)
The participant must continue the dialogue and bring up concerns with the decision maker to ensure that they are taking particular procedural steps; if not, they will be deemed to have acquiesced.
Will the costs and inconvenience of completing the proceeding outweigh the advantages of waiting for a decision?
Time limit
FCA & JPRA:
30-day limitation period after the date of the decision with leave for the court to grant extensions.
FCA: Section 18(1)(2)
JRPA: Section 5(1)
Other rules
302
Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.
Exception
David Suzuki Foundation v. Canada (Health), 2018 FC 380 p. 173
Held:
The 30-day limitation period in 18(1)(2) does not apply where an applicant is seeking to review a matter which isn’t a decision/ an order.
Matter: Includes a policy/course of conduct
The course of conduct: A general decision/ the implementation of steps/ a combination of both to result in unlawful government action.
It may also include an ongoing practice/consideration if the decisions are closely connected.
Government decisions/actions: Focus on whether there is a closely connected course of allegedly unlawful government action.
Exception to Rule 302: More than one decision may be reviewed in a single application where it is a continuing act/ it was characterised as a continuing course of conduct.
Factors to determine whether there is a continuing act/course of conduct:
Whether the decisions are closely connected.
Whether there are similarities or differences in the fact situations, including, the type of relief sought, the legal issues raised, the basis of the decision and decision-making bodies.
Whether it is difficult to pinpoint a single decision.
Based on the similarities and differences, whether separate reviews would be a waste of time and effort.
New evidence
State cases
Association of Universities and Colleges of Canada v. Access Copyright, 2012 FCA 22 p. 19
Held: Evidence that was not before the administrative decision-maker and that goes to the merits of the matter before the Board is not admissible in an application for judicial review
Gilxsan Treaty Society v Hospital Employees Union 1999 CanLII 7628 FCA 2000 pp.144-145
Held: The essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court.
Exceptions
Namgis First Nation v. Canada (Fisheries and Oceans), 2019 FCA 149
Held:
Affidavits providing general background information.
Affidavits about the absence of evidence in the record.
Evidence provided by one of the parties that has not been mentioned by the decision maker.
Affidavits concerning grounds of review where evidence cannot be found in the record of the administrative decision-maker (i.e. a claim of fraud, or an issue of procedural fairness)
Affidavits relevant to the reviewing court’s remedial discretion
New aeguments
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 p. 24
Held: The reviewing court has discretion whether/not to consider a new argument on judicial review.
There is a general rule against it: If you fail to raise an issue before a judicial decision maker, it’s unlikely for them to allow you to raise it in front of the reviewing court.
Exceptiotn
Where the issue that you are hoping to raise for the first time can be determined without any evidence, ie. A question of policy/law.
When the tribunal doesn’t have jurisdiction to decide on a particular issue.
