CANADIAN

ADMINISTRATIVE LAW
Module 2

Liz Nastasi & Trevor Guy

What’s Next?
CHALLENGING
CHALLENGING ADMIN
ADMIN
ACTION
ACTION DECISION
DECISION

INTERNAL EXTERNAL
EXTERNAL NON
NON COURT
COURT
INTERNAL TRIBUNAL
TRIBUNAL EXTERNAL
EXTERNAL COURT
COURT
MECHANISMS
MECHANISMS MECHANISMS
MECHANISMS
MECHANISMS
MECHANISMS

ENABLING
ENABLING STATUTE:
STATUTE:
RECONSIDER
RECONSIDER ,, RE-
RE- PRIVATE
PRIVATE LAW
LAW //
HEAR,
HEAR, JUDICIAL
JUDICIAL REVIEW
REVIEW CIVIL
CIVIL
APPEAL
APPEAL STATUTORY
STATUTORY
ACTION
ACTION
APPEALS
APPEALS

DISCRETION
DISCRETION TO
TO DENY
DENY
RIGHT,
RIGHT, SCOPE,
SCOPE,
STAYS,
STAYS, REMEDIES
REMEDIES
REMEDIES
REMEDIES
PROCEDURAL
PROCEDURAL
MONEY
MONEY
SUBSTATNIVE
SUBSTATNIVE REVIEW
REVIEW FAIRNESS
FAIRNESS

REMEDIES/WRITS
REMEDIES/WRITS REMEDIES/WRITS
REMEDIES/WRITS
What’s Next?
Using the Courts:
• Statutory appeals
• Judicial review
• Availability of judicial
review
• Discretionary grounds
to deny review
• Remedies in admin law
• Civil action – private
remedies and admin
law
Using the Courts: Statutory Appeals
• When faced with an adverse decision of an ADM, you generally want
to ask the following, which we will discuss in this section:

1. Does the tribunal’s enabling statute provide for a right of appeal?

Is an appeal available as of right or is leave required? If leave is
required, who grants it?

2. What is the scope of appeal?

3. Is a stay automatic or must one apply for it?

4. What remedies are available?

Using the Courts: Statutory Appeals
1. Does the tribunal’s enabling statute provide for a right of
appeal?

• Courts have no inherent appellate jurisdiction over administrative tribunals.

A right to appeal must be provided for in a tribunal’s enabling statute.

• Generally, parties may not appeal interlocutory rulings (for example, on

procedural or evidentiary and disclosure issues, or bias): Roosma v. Ford
Motor Co. of Canada Ltd., (1988), 66 OR (2d) 18.

• To be appealable, the tribunal’s decision must decide the merits of the

matter or be a “final” order.

• If a statute does not provide this right, a dissatisfied party will normally have
to access the courts by way of judicial review.
Using the Courts: Statutory Appeals
1. Does the tribunal’s enabling statute provide for a right of appeal?

• Usually, a tribunal’s enabling statute will also set out the court to which
tribunal orders may be appealed.

• For federal tribunals, appeals are usually taken to the Federal Court or
the Federal Court of Appeal (more on this later).

• Appeals from provincially constituted tribunals may be taken to the

province’s trial court of general jurisdiction, to a divisional court, or to the
court of appeal.

• Rarely, a statute will provide a right (which is seldom exercised) to

appeal a tribunal decision to Cabinet itself.
Using the Courts: Statutory Appeal
1. Is an appeal available as of right, or is leave required? If leave is required,
who may grant it?

• Appeals can be as of right or they can require leave.

• Where leave must be obtained, it can be the leave either of the original decision-maker or, more frequently,
of the appellate body (i.e., the court).

• For example:

• Recall s. 11 of the Licence Appeal Tribunal Act.

• By contrast, a person affected by a decision of the B.C. Securities Commission may appeal to the B.C.
Court of Appeal only with leave of a justice of that court: s. 167 of the Securities Act, RSBC 1996, c. 418.

• Sometimes, additional statutory criteria must also be met before such leave will be granted. For example:

• An appeal to the Federal Court of Appeal from judicial review by the Federal Court on immigration matters
may be made only if the Federal Court judge certifies that “a serious question of general importance” is
involved: see s. 74 of IRPA.
Using the Courts: Statutory Appeals
2. What is the scope of available appeal?

• Just as the enabling statute determines whether a statutory

appeal is available in the first place, the enabling statute
entirely determines its scope.

• That scope varies from tribunal to tribunal. Some statutes

permit complete de novo review of a tribunal’s decision,
though most will be limited to certain issues based entirely on
the existing record.

• Again, look to the terms of the statute. And read the

applicable rule, e.g. Rule 61 of the Rules of Civil Procedure.
Using the Courts: Statutory Appeals
2. What is the scope of appeal?

• The enabling legislation will dictate any limitations. For example, see s. 45 of Ontario’s Arbitration Act, 1991, SO
1991, c 17:

Appeals on question of law

45 (1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award
to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

Idem
(2) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law.

Appeal on question of fact or mixed fact and law

(3) If the arbitration agreement so provides, a party may appeal an award to the court on a question of fact or on
a question of mixed fact and law.

• A court that has been designated to take appeals from a tribunal’s decision must look to the statute to determine
the breadth and scope of its appellate powers.
Using the Courts: Statutory Appeals
2. What is the scope of available appeal?

• Statutes are more likely to provide a right of appeal to the courts

where the tribunal has the power to affect individuals’ common-
law rights. For example:

• Statutes generally provide for a broad power to appeal from certain

professional disciplinary tribunals on questions of fact and law, where
professionals risk losing their ability to practice their profession - Discipline
Committee of the College of Physicians and Surgeons of Ontario.

• In contrast, labour relations and employment-related matters—which have

long been adjudicated by boards with specialized expertise (and involve
claims by organized labour to which courts were historically perceived to be
hostile)—cannot generally be appealed to the courts.
Using the Courts: Statutory Appeals
2. What is the scope of available appeal?

• Even where the appeal rights are broad, courts will show
some deference to a tribunal’s findings of fact on the
assumption that the tribunal had the evidence before it and
was therefore in a better position to make those findings.

• However, courts are not necessarily expected to defer to

tribunals just because a legislature designated them, and
not the courts, as the decision-makers of first instance.
Indeed, under the new Vavilov framework, the standard of
review on appeals for questions of law is now correctness.
Using the Courts: Statutory Appeals
3. Is a stay of proceedings automatic, or must one apply for it?
•What happens to the original ADM decision while it is being challenged?

•Therules governing stays of proceedings vary among jurisdictions and tribunals. Specific enabling statutes may
expressly empower tribunals or the appellate bodies to which they appeal to stay enforcement of the tribunal order
pending appeal.

•For example:

•The Ontario SPPA establishes a default rule that an appeal operates as a stay of a tribunal’s proceedings: see s.
25. However, the act also allows the tribunal to order that its decision not be stayed pending appeal.

•The B.C. Administrative Tribunals Act, by contrast, provides that “the commencement of an appeal does not
operate as a stay or suspend the operation of the decision being appealed unless the tribunal orders otherwise”:
see s. 25.

•Inthe Federal Court, as well, stays of proceedings are usually discretionary: see. s. 50 of the Federal Courts Act.
However, note that this discretion is governed by the three-part for injunctions (i.e., serious issue, irreparable
harm, balance of convenience).

•Unless a statute specifically excludes it, as B.C.’s Administrative Tribunals Act does, the superior court that is the
tribunal’s designated appellate court has the inherent authority to grant a stay.
Using the Courts: Statutory Appeals
4. Remedies on Statutory Appeals

• You also want to consider the issue of remedies on

statutory appeals.

• We know that a right to appeal must be provided for in a

tribunal’s enabling statute.

• Naturally, remedies may also be outlined in the scope of

the appeal dictated by the enabling statute.
Using the Courts: Judicial Review
Statutory Appeals vs. Judicial Review

• If a statute does not provide for a right to appeal, a dissatisfied

party will have to access the courts by way of judicial review.

• Relative to judicial review, it is easier to predict the availability of an

appeal. After all, the enabling statute provides for its availability
and scope.

• By contrast, judicial review is the product of decades of court

battles, modified from time-to-time by statute struggling with the
tension between “legal” values of justice (the ‘rule of law’) versus
“democratic” values (legislative intent), and “bureaucratic” values
(efficiency and expertise).
Using the Courts: Judicial Review
Statutory Appeals vs. Judicial Review

• In judicial review, the court is restricted exclusively (with limited

exceptions) to the evidentiary record that was before the original
decision-maker, unlike some appeals. (See, e.g., Re Keeprite
Workers' Independent Union et al. and Keeprite Products Ltd.,
1980 CanLII 1877)

• Both appeals and JRs involve a “review” on a standard of review

that is issue-dependent. We will discuss in more detail later.

• It practice, both may appear the same or even indistinguishable.

However, there are important differences that come with judicial
review.
Using the Courts: Judicial Review
Statutory Appeals vs. Judicial Review

• Appeal mechanisms, either to internal administrative

appellate bodies or to courts, are the norm. They are
straightforward in that they are paths paved by the legislature.
Judicial review is the exception.

• Judicial review is different from an appeal because, at its root,

it relies on the inherent jurisdiction of courts to oversee and
check administrative or executive action in the interest of the
rule of law. In this sense, unlike appeals, which are created
statutorily, judicial review is the constitutional safeguard
against illegal executive or admin action.
Using the Courts: Judicial Review
Statutory Appeals vs. Judicial Review

• A court’s decision whether to grant judicial review is intimately bound

up with the core tension that underlies all of administrative law, what
the Supreme Court called in Dunsmuir:

“an underlying tension between the rule of law and the foundational democratic
principle, which finds an expression in the initiatives of Parliament and legislatures
to create various administrative bodies and endow them with broad powers.”

• Courts are the indispensable guardians of the rule of law, but they still
need to operate within their sphere of authority, which means
respecting the fact that, through enabling statutes, legislatures grant
authority over certain things to administrative tribunals, and not to the
courts themselves.
Using the Courts: Judicial Review
Statutory Appeals vs. Judicial Review

• Judicial review may not be available. It is dependent on the decision having been made by a “public body.”
Whether something is a public body may be difficult to determine.

• Judicial review is discretionary in a way that appeals are not. Court have the discretion to refuse to grant a remedy
even where one seems clearly warranted (e.g., delay, prematurity, mootness, bad faith, where an adequate
alternative remedy exists, where the balance of convenience to the parties suggests non-intervention). This also
applies to remedies. Faced with a “wrong,” courts may still view it inappropriate to grant the requested remedy.

• Judicial review may also raise concerns about “standing” in a way that appeals do not. The concern here is whether
the person applying may actually do so.

• Where judicial review is concerned, the choice of court is less obvious. One has to know the “background
legislation,” the Judicial Review Procedure Act. The same apples to deadlines for filing, which may also be less
obvious or even absent.

• Unlike an appeal, in which the appellate files the record, a judicial review requires the decision-maker to file the
record: see s. 10 of the JRPA.

• Let’s look at some of these issues in more detail.

Is Judicial Review Available?: Overview
• In review, whether a judicial review will be available, let alone
successful, will depend on a number of considerations:

• Whether the ADM is a “public body”

• Whether there are discretionary grounds to deny the judicial

review

• Whether one has standing

• Which court one should apply to, and what’s the process

• The available remedies

Is Judicial Review Available?: What is a public body?
•Asmentioned earlier, not every decision or action is subject to judicial review. Judicial review is
available to check administrative or executive action, so only public bodies can be subject to judicial
review. (See the history related to prerogative writs.)

•This is codified in s. 2 of the Judicial Review Procedure Act:

Applications for judicial review

2 (1) On an application by way of originating notice, which may be styled “Notice of Application for
Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant
would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or
proposed or purported exercise of a statutory power. 

•Thus,one of the key threshold questions is whether the ADM whose decision or action are being
challenged is a public body and, therefore, subject to judicial review.

•Sometimes this is difficult to determine because organizations exercise a “public” function yet
operate at a distance from government, while others seem “private” but are connected significantly to
public authority.
Is Judicial Review Available?: What is a public body?
• It’s not always clear if the ADM is a sufficiently “public body.”

• We know that private actions, such as a private corporation’s decision to terminate an

employee, can be the subject of a lawsuit but cannot be judicially reviewed.

• Sometimes, the line between public and private is blurry:

• Stock exchanges regulate the conduct of their members and issue and revoke licences, and
their operations clearly go to the protection of the public. However, their authority to act as
they do derives from a compact with their members rather than from any statutory grant of
authority. Same with voluntary associations.

• What about government action with a private contracting party? As a general matter, a
private party will have difficulty seeking judicial review of a government board’s decision not
to award it a particular contract. Instead, it may pursue the government through the courts
by way of a civil action.

• So how do tell the difference between a public and private entity for the purposes of judicial
review?
Is Judicial Review Available?: What is a public body?
Air Canada v. Toronto Port Authority et al., 2011 FCA 347

• Facts:

• Air Canada brought the two applications for judicial review in response to two bulletins issued by the Toronto Port Authority
(“TPA”) concerning the Billy Bishop Toronto City Airport (the “City Airport”).

• The TPA, which was created under the Canada Marine Act, manages and operates the City Airport in accordance with a
Tripartite Agreement also executed by the City and the federal Minister of Transport.

• After Air Canada ceased operations at the City Airport, Porter moved in, invested, and occupied most of the takeoff and
landing slots. Air Canada wanted back in.

• Air Canada took issue with two bulletins issued by the TPA concerning the allocation of slots. However, its real issue was
with TPA’s pre-existing allocation of slots to Porter, along with the fact that the TPA had recently entered into a contract that
grandfathered Porter’s previous slots.

• The FCA held that the bulletins were not “decisions” or “orders” amendable to review since Air Canada was taking issue
with the other conduct mentioned above. However, the court also asked whether the TPA was acting as a “federal board,
commission or other tribunal” over which the court has jurisdiction.

• Issue: whether the TPA is a “federal board, commission or other tribunal” subject to judicial review?
Is Judicial Review Available?: What is a public body?
Air Canada v. Toronto Port Authority et al., 2011 FCA 347

• Decision:

• “Every significant federal tribunal has public powers of decision-making. But alongside
these are express or implied powers to act in certain private ways, such as renting and
managing premises, hiring support staff, and so on. In a technical sense, each of these
powers finds its ultimate source in a federal statute. But…many exercises of those
powers cannot be reviewable. For example, suppose that a well-known federal tribunal
terminates its contract with a company to supply janitorial services for its premises. In
doing so, it is not exercising a power central to the administrative mandate given to it by
Parliament. Rather, it is acting like any other business. The tribunal’s power in that case
is best characterized as a private power, not a public power. Absent some exceptional
circumstance, the janitorial company’s recourse lies in an action for breach of contract,
not an application for judicial review of the tribunal’s decision to terminate the contract.”

• How do you work out the public-private distinction?

Is Judicial Review Available?: What is a public body?
• There are a number of factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it
within the purview of public law:

• The character of the matter for which review is sought. Is it a private, commercial matter, or is it of broader import to members of the public?

• The nature of the decision-maker and its responsibilities. Is the decision-maker public in nature, such as a Crown agent or a statutorily-
recognized administrative body, and charged with public responsibilities? Is the matter under review closely related to those responsibilities?

• The extent to which a decision is founded in and shaped by law as opposed to private discretion. If the particular decision is authorized by or
emanates directly from a public source of law such as statute, regulation or order, a court will be more willing to find that the matter is public.

• The body’s relationship to other statutory schemes or other parts of government. If the body is woven into the network of government and is
exercising a power as part of that network, its actions are more likely to be seen as a public matter.

• The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity. For
example, private persons retained by government to conduct an investigation into whether a public official misconducted himself may be
regarded as exercising an authority that is public in nature.

• The suitability of public law remedies. If the nature of the matter is such that public law remedies would be useful, courts are more inclined to
regard it as public in nature.

• The existence of compulsory power. The existence of compulsory power over the public at large or over a defined group, such as a
profession, may be an indicator that the decision is public in nature.

• An “exceptional” category of cases where the conduct has attained a serious public dimension. Where a matter has a very serious,
exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable.
Is Judicial Review Available?: What is a public body?
• The court held that the matters discussed in the bulletins were private, not public:

• The character of the matter for which review is sought. Under its letters patent, the TPA is not a Crown agent when managing
the City Airport.

• The nature of the decision-maker and its responsibilities. The TPA is private in nature. Sure it’s creature of statute, but it’s
obligated to remain financially self-sufficient and may pursue private ends.

• The extent to which a decision is founded in and shaped by law as opposed to private discretion. N.A.

• The body’s relationship to other statutory schemes or other parts of government. The TPA is “in no way” woven into the network
of government or exercising a power as part of that network. The Canada Marine Act established the opposite.

• The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public
entity. The discretions exercised by the TPA evidenced in the bulletins were not founded upon or shaped by law, but rather by
the TPA’s private views about how it is best to proceed.

• The suitability of public law remedies. N.A.

• The existence of compulsory power. No evidence that the Toronto Port Authority is instructed, directed, controlled, or
significantly influenced by government or another public entity

• An “exceptional” category of cases where the conduct has attained a serious public dimension. No evidence of this.
Is Judicial Review Available?: What is a public body?
Setia v. Appleby College, 2013 ONCA 753

• Facts:

• Appleby College, an exclusive private school in Oakville, suspended Setia after he

admitted to smoking pot, which violated the school’s Code of Conduct.

• The Divisional Court held unanimously that the decision to expel Setia concerned
“administration and discipline” as referred to in s. 11 of the Appleby Act and was,
therefore, a statutory power of decision for the purposes of the JRPA.

• The Divisional Court found that Appleby came to its decision without giving the Setia an
adequate opportunity to be heard and consequently ordered that the decision must be
quashed.

• Issue: whether the Divisional Court was correct in finding that it had the jurisdiction under
the JRPA to make an order for judicial review quashing the decision to expel Setia?
Is Judicial Review Available?: What is a public body?
• Decision: No. Appleby was a private entity in expelling Setia.

• The CA outline the purpose of the JRPA:

• “The prerogative remedies brought together by the JRPA (mandamus, prohibition and certiorari) constitute the
mechanisms that have been used by the courts to ensure that public decision makers observe the principles
and rules of public or administrative law by which they must function.  While the notion of public law defies full
and precise definition, the courts use the prerogative remedies to supervise persons and bodies that derive
their powers from statute in their performance of functions of a public or governmental nature.”

• The CA held that the Div. Ct. was wrong to focus solely on the definition of “statutory power of
decision”:

• “In my view the jurisdiction to make an order for judicial review quashing the expulsion decision does not
depend on whether the decision is the exercise of a statutory power of decision.  Rather, the jurisdiction
provided by s. 2(1)1 of the JRPA turns on whether the expulsion decision is the kind of decision that is reached
by public law and therefore a decision to which a public law remedy can be applied.  This reflects the purpose
of the JRPA, namely to provide a simplified process to obtain public law remedies in those circumstances
where public law applies.” 

• The CA adopted Air Canada v. Toronto Port Authority, then applied to the factors to the facts.
Is Judicial Review Available?: What is a public body?
• The factors as applied:

• The nature of the decision-maker and its responsibilities. Although Appleby was created
by statute, which points strongly toward the availability of JR, the Appleby Act is a
private statute with no wide public effect. Appelby’s decisions concern private matters.

• The decision-maker’s relationship to other parts of government or other statutory

schemes. Appleby is a private school whose only interaction with government is its
modest relationship to the Ministry of Education.

• The character of the matter for which review is sought. That matter is the expulsion
decision concerning an individual student at Appleby, a private school.  It is the kind of
decision that could affect only the students who choose to attend Appleby.  It is not of
broader import to members of the public

• The extent to which the expulsion decision is shaped by private law rather than public
law. The criteria upon which the expulsion decision is made are provided by the private
law of the contract between Appleby and Setia’s parents.
Is Judicial Review Available?: What is a public body?
Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26

• Facts:

• The Highwood Congregation of Jehovah’s Witnesses is a religious volunteer association of about 100 members and
no statutory underpinning. It is not incorporated, has no articles of association or by-laws, and does not own property.

• It’s judicial committee disfellowshipped Mr. Wall after he admitted that he had engaged in sinful behaviour and was
considered to be insufficiently repentant. The Judicial Committee’s decision was confirmed by an Appeal Committee.
Mr. Wall applied for judicial review of the decision to disfellowship him, alleging a breach of procedural fairness.

• Issue: whether the Congregation’s decision to disfellowship Mr. Wall is amenable to judicial review?

• Decision: no.

• “The purpose of judicial review is to ensure the legality of state decision making. Judicial review is a public law
concept that allows s. 96 courts to “engage in surveillance of lower tribunals” in order to ensure that these tribunals
respect the rule of law. The state’s decisions can be reviewed on the basis of procedural fairness or on their
substance. The parties in this appeal appropriately conceded that judicial review primarily concerns the relationship
between the administrative state and the courts. Private parties cannot seek judicial review to solve disputes that may
arise between them; rather, their claims must be founded on a valid cause of action, for example, contract, tort or
restitution.”
Is Judicial Review Available?: What is a public body?

• “Not all decisions are amenable to judicial review under a superior court’s supervisory jurisdiction.
Judicial review is only available where there is an exercise of state authority and where that exercise
is of a sufficiently public character. Even public bodies make some decisions that are private in nature
— such as renting premises and hiring staff — and such decisions are not subject to judicial review:
Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605. In making these contractual
decisions, the public body is not exercising “a power central to the administrative mandate given to it
by Parliament”, but is rather exercising a private power (ibid.).  Such decisions do not involve
concerns about the rule of law insofar as this refers to the exercise of delegated authority.”

• “In my view, a decision will be considered to be public where it involves questions about the rule of law
and the limits of an administrative decision maker’s exercise of power. Simply because a decision
impacts a broad segment of the public does not mean that it is public in the administrative law sense
of the term. Again, judicial review is about the legality of state decision making.”

• “What Air Canada actually dealt with was the question of whether certain public entities were acting as
a federal board, commission or tribunal such that the judicial review jurisdiction of the Federal Court
was engaged. The proposition that private decisions of a public body will not be subject to judicial
review does not make the inverse true. Thus it does not follow that “public” decisions of a private body
— in the sense that they have some broad import — will be reviewable. The relevant inquiry is
whether the legality of state decision making is at issue.”
Is Judicial Review Available?: What is a public body?
Other examples:

Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335 (Div Ct)
•The Divisional Court held a hospital policy to restrict visitors during the COVID-19 pandemic did not involve the exercise of a statutory
authority nor is it of a sufficiently “public” character to meet the test for judicial review.

People for the Ethical Treatment of Animals, Inc. v. City of Toronto, 2020 ONSC 2356 (Div Ct)
•The Divisional Court dismissed PETA’s application against Toronto and Astral Media after the later, which contracted with the City to
develop “street furniture,” pulled PETA’s counter-ads against Canada Goose from Toronto bus shelters. The Court held that Astral’s
decision did not have a sufficiently public character to make it susceptible to judicial review. This was a contractual dispute between
PETA and Astral, a private corporation, which was not acting as part of any government scheme and exercised no compulsory power
over PETA.

Graff v. New Democratic Party, 2017 ONSC 3578 (Div Ct)

•The Divisional Court ruled that the NDP’s decision to deny Graff’s application for leadership of the federal political party is subject to
judicial review. While the NDP is an unincorporated, voluntary association, its activities are “inextricably linked to the public domain”
and political parties receive considerable public funding.

Capelli v Hamilton Wentworth (Catholic School Board), 2017 ONSC 5442 (Div Ct)
•The applicant transferred schools and wished to play basketball in her new school, contrary to a rule prohibiting students from playing
for one year after transferring schools. The school board denied her eligibility to play. Urgent JR heard. The Divisional Court found
that the decision of the school board was sufficiently public in nature to make judicial review available.

Grascan Construction Ltd. v. Metrolinx, 2017 ONSC 6424 (Div Ct)

•Pre-qualification decision for RFP/tendering is not subject to judicial review. No statutory power of decision being exercised and
common law remedy of certiorari is not available because there is no duty of procedural fairness in pre-qualification phase.
Discretionary Grounds to Deny Review
• Importantly, even thought you may have valid grounds for review,
the court may refuse to hear the application. Again, recall that
judicial review is an “extraordinary” and discretionary remedy.

• The Court may refuse to review an action or decision if any of the

following circumstances apply:

1. Availability of alternative remedies

2. Prematurity
3. Delay and Waiver
4. Mootness
5. Misconduct of the applicant
6. A balance of convenience and public interest, or
7. Standing issues
Discretionary Grounds to Deny Review
• The first 5 grounds are the original set of discretionary grounds
for refusing relief derived from common law and equity

• They survived statutory reform of judicial review and are

similar equity-based grounds such as laches.

1. Availability of alternative remedies

2. Prematurity
3. Delay and Waiver
4. Mootness
5. Misconduct of the applicant
6. A balance of convenience and public interest, or
7. Standing issues
Discretionary Grounds to Deny Review
1. Availability of Alternative Remedies

• In most situations, it makes sense to go through all

internal appeal stages and maintain the integrity of the
administrative regime.

• However, at other times, what is required is faster

recourse to the courts— “leapfrogging” the internal
appeals and proceeding directly to the courts.
Discretionary Grounds to Deny Review
1. Availability of Alternative Remedies

• The most important basis for refusing to grant a remedy in

judicial review is that adequate alternative remedies are
available.

• Parties should exhaust all prescribed avenues of appeal before

proceeding to the “last resort” of judicial review (for example,
appeal to court or an appellate tribunal, or reconsideration).

• It is not sufficient to simply assert that there are alternative

remedies available. You need to consider if the appropriate
relief is adequate— are these remedies truly available?
Discretionary Grounds to Deny Review
1. Availability of Alternative (and adequate) Remedies

• In Harelkin v. University of Regina, [1979] 2 SCR 561 the SCC

determined that some factors may render an alternative form of review
inadequate.

• In that case, a student was denied procedural fairness by a university

committee and sought judicial review instead of pursuing an appeal
before the university senate.

• The court reached the conclusion that the student’s right of appeal to
the senate committee provided him with an adequate alternative
remedy. In addition, this remedy was a more convenient remedy for
appellant as well as for the university in terms of costs and
expeditiousness.
Discretionary Grounds to Deny Review
1. Availability of Alternative (and adequate) Remedies

• In Harelkin, the SCC determined the following factors may render an

alternative form of review (appeal mechanisms provided for by statute)
inadequate:

• Where the appellate tribunal lacks statutory authority over, or is not willing to
address, the issues the appellant raises.

• Where the appellate tribunal does not have statutory authority to grant the remedy
the appellant requests.

• Where the appeal must be based on the record before the original tribunal, but that
record does not include evidence relevant to the applicant, or that record includes
evidentiary errors that the appellate tribunal lacks authority to correc.

• Where the alternative procedure is too inefficient or costly.

Discretionary Grounds to Deny Review
1. Availability of Alternative Remedies

Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541

Facts:

• Volochay was a massage therapist and a member of the College of Massage Therapists of Ontario.   In July 2008, a former female
patient complained to the Registrar of the College that she and Volochay had engaged in sexual intercourse while she was a patient –
conduct that is prohibited by the Health Professions Procedural Code and attracts a penalty of loss of certificate to practice for a
minimum of five years.

• The College’s Complaints Committee investigated the complaint.  However, in breach of the requirements of the Code, Volochay was
not given notice or the details of the complaint or an opportunity to make written submissions to the Committee.  

• In April 2009, the Complaints Committee decided to refer the matter to the College’s Executive Committee to consider a full
investigation of Volochay’s practice.  It made its decision without ever telling Volochay the substance of the allegations against him or
giving him a chance to refute the allegations. 

• He appealed to HPARB to review the Complaints Committee’s decision to refer the matter to the Executive Committee. However, he
later withdrew his request.

• In November 2010, 19 months after the decision of the Complaints Committee, its successor body, the Inquiries, Complaints and
Report Committee (ICRC) appointed an investigator to inquire into and examine Volochay’s practice.

• Volochay then sought judicial review of the Complaints Committee’s decision and the ICRC’s decision to investigate.

Issue: is judicial review available?

Discretionary Grounds to Deny Review
1. Availability of Alternative Remedies

Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541

Decision: No. Volochay’s failure to seek a review of the Complaints Committee’s decision before the HPARB ought to have
precluded relief by judicial review.

• Unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its
course.  The principle has particular force where adequate alternative remedies are available under the administrative
scheme.  Ordinarily an affected individual must pursue these remedies before seeking relief from the court. 

• The rationales for this principle are well known.  The principle respects administrative decision-making and the
legislature’s intent that internal review processes be exhausted before the court intervenes.  At the same time, the
principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case
calls for intervention.

• This principle applies even though s. 2(1) of the Judicial Review Procedure Act provides that an application for judicial
review may be brought “despite any right of appeal” to either an administrative tribunal or to the court.  The ability to bring
an application for judicial review does not compel the court to undertake judicial review - exceptional circumstances are
still required to justify early intervention.

• To be an effective or adequate remedy, the defect alleged – here a denial of procedural fairness – must be capable of
being raised before the reviewing body, and the reviewing body must be capable of “curing” the defect.

• Considerations of cost, convenience and timeliness may bear on the adequacy of an alternative remedy.
Discretionary Grounds to Deny Review
1. Availability of Alternative Remedies

Note: exceptional circumstances may still warrant intervention.

However, Volochay is also noteworthy in its affirmation of the recent
summary of this exception in Canada (Border Services Agency) v. C.B.
Powell Limited, 2010 FCA 61, in which the Court observed as follows:

“Concerns about procedural fairness or bias, the presence of an

important legal or constitutional issue, or the fact that all parties have
consented to early recourse to the courts are not exceptional
circumstances allowing parties to bypass an administrative process,
as long as that process allows the issues to be raised and an
effective remedy to be granted…[T]he presence of so-called
jurisdictional issues is not an exceptional circumstance justifying
early recourse to courts.”
Discretionary Grounds to Deny Review
Other examples:

•Becker v. City Park Co-operative Apartments Inc. (2005), 193 O.A.C. 52

(Div. Ct.) (judicial review quashed because there was an adequate
alternative remedy)

•Consumers’
Association of Canada (Manitoba) Inc. v. Manitoba (Public Utilities Board),
2006 MBCA 156 (judicial review quashed because there was an adequate
alternative remedy)

•Ontario Conference of Judges v. Ontario (Chair, Management Board)

(2005), 71 O.R. (3d) 528 (Div. Ct.) (dismissal of judicial review for delay;
dismissal for failure to exhaust internal remedies)
Discretionary Grounds to Deny Review
2. Prematurity

• Judicial review applications that are brought before tribunal proceedings have been
concluded are usually dismissed as being premature, even if the applicant has good cause
for judicial review.

• This includes challenges to the tribunal’s interim procedural and evidentiary rulings.

• Again, see Volochay and its reliance on C.B. Powell:

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative
processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large
costs and delays associated with premature forays to court and avoids the waste associated with hearing an
interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative
process anyway. Further, only at the end of the administrative process will a reviewing court have all of the
administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments
and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial
respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.
Discretionary Grounds to Deny Review
2. Prematurity

• In Air Canada v. Lorenz, [2000] 1 FC 494 (TD) Lorenz made an unjust dismissal
complaint against Air Canada. Five days into the hearing, Air Canada learned that
the arbitrator was acting for an client in an unjust dismissal claim against an
employer. When asked about this, the arbitrator refused to disclose details. Air
Canada asked he recuse himself to eliminate a reasonable apprehension of bias.
The arbitrator declined and Air Canada brought a judicial review.

• The court considered: the hardship to Air Canada in having it proceed with the
hearing without resolving the question of bias, the potential waste of the time and
resources to complete the hearing, causing fragmentation of the hearing, and the
strength of the case.

• Ultimately, the court found that Air Canada had not established a clear and
obvious case of bias, that the judicial review was premature, and the proceeding
should continue until the arbitrator determined the complaint on its merits.
Discretionary Grounds to Deny Review
3. Delay and Waiver

•Failure
to comply with mandatory limitation statutes or provisions will prevent the court from
considering judicial review. Even if there is no limitation period, a court may deny relief on
grounds of undue delay, also sometimes called the doctrine of laches.

•Evenif statutory time limits for filing a judicial review application have been met, parties must be
aware that delay and acquiescence may be grounds for a reviewing court to refuse a remedy.

•Thisalso means that, if a tribunal commits a procedural error or demonstrates an appearance of

bias, the failure of a party to object may result in relief being denied - parties should object
promptly to any perceived impropriety on the part of the tribunal:

•Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 892 at 942

•Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board, (2005) 76 OR (3d) 321 (C.A.)
at paras. 98-99

•Similarly, choosing not to attend a hearing could waive any right to judicial review.
Discretionary Grounds to Deny Review
3. Delay and Waiver

• The general rule: 6 months to start and 12months to perfect (Toronto District School
Board v. Child and Family Services Review Board, 2019 ONSC 7064)

• Also, note that there is a new 30-day new rule potentially coming: see Bill 161, which
would amend the JRPA.

• Laches is an "unreasonable delay pursuing a right or claim...in a way that prejudices the
[opposing] party”. When asserted in litigation, it is an equitable defense, or doctrine.

• The person invoking laches is asserting that an opposing party “has slept on its rights”
and that, as a result of this delay, circumstances have changed such that it is no longer
just to the grant the plaintiff’s original claim.

• Put another way, failure to assert one’s rights in a timely manner can result in a claim
being barred by laches. Laches is a form of estoppel for delay.
Discretionary Grounds to Deny Review
4. Mootness
•Judicial review will not be granted where the issues are moot – that is, when a decision or order will not have the effect of resolving some
controversy affecting or potentially affecting the rights of the parties.

•This may be the case where a dispute is over or has not yet arisen, or if present circumstances make granting a remedy impossible. For
example:

•where a tribunal’s order has expired or no longer affects the applicant, such as where an inmate has been released but filed a judicial review
application prior to his or her release with respect to treatment;

•where an “offending” investigation produces no adverse consequences;

•where the litigant no longer actually wants the remedy that the tribunal might have granted had it not erred.

•Three basic rationales underpin the mootness doctrine:

•that a court's competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued
by parties who have a stake in the outcome;

•the concern for judicial economy and scare resources; and

•the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions
into the role of the legislative branch.
Discretionary Grounds to Deny Review
4. Mootness

• However,
courts have the discretion to hear a moot case. This determination is
made on the basis of the same factors underlying the doctrine:

• Borowskiv. Canada (Attorney General), [1989] 1 SCR 342 (re post-

Morgantaler challenge to the Criminal Code’s prohibition on abortion)

• Trembleyv. Daigle, [1989] 2 SCR 530 (re post-abortion determination of

whether a foetus is a "human being" under the Quebec Charter of Human
Rights and Freedoms and therefore enjoys a "right to life“)
Discretionary Grounds to Deny Review
5. Misconduct of the Applicant

• The court will use its discretion to refuse to grant a remedy on judicial review
where the party making the judicial review application does not come with “clean
hands”.

• This means that the party requesting the review cannot be in the wrong.

• For example: parties may not seek a remedy to facilitate illegal conduct or to
obtain an unfair advantage, or having flouted the law or made misrepresentations.

• In Homex Realty and Development Co. Ltd. v. Wyoming (Village), [1980] 2 SCR
1011. There, SCC found that the applicant had a right to a hearing and did not
receive such an opportunity. However, the court denied the remedy on grounds
that the Applicant was seeking to avoid the cost of services associated with the
subdivision of lands and not really interested in judicial review.
Discretionary Grounds to Deny Review
Discretionary grounds to deny:

6. Balance of Convenience

• In MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2

the Court added this consideration to the original five mentioned above:
the balance of convenience to the parties. In that case, the balance of
convenience justified reducing the impact of the remedy granted, (from
relief in the order of certiorari and mandamus to a declaration).

• The court may refuse relief where there has been denial of procedural
fairness, on the basis that the outcome would have been the same.
(Generally, the court is reluctant to speculate on what the outcome would
be.) See,. e.g., Mobile Oil Canada Ltd. v Canada – Newfoundland
Offshore Petroleum Board. [1994] 1 SCR 202.
Using the Courts: Judicial Review
Which court?

• Both the provincial superior courts and the Federal Courts have
judicial review jurisdiction.

• Although a tribunal’s enabling statute will generally set out which

court has jurisdiction to hear a statutory appeal, this is not the case
for judicial review. (Again, this is an extraordinary remedy that does
not come out of the enabling statute in the first place). See s. 6 of the
JRPA, which tells us that the application shall be made to the Div. Ct.

• Typically, the choice of courts is determined by whether the source of

the impugned authority’s power is provincial or federal, but there are
some exceptions.
Using the Courts: Judicial Review
Which court?

• Provincial superior courts have concurrent or exclusive

jurisdiction over some specific aspects of federal statutory
regimes, as a result of both the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, and the
Federal Courts Act.

• In particular, provincial superior courts have concurrent

jurisdiction where Charter issues are raised in attacks on federal
legislative regimes (Canada (Attorney General) v. McArthur, 2010
SCC 63) and over damages actions in which relief is sought
against the federal Crown: Canada (Attorney General) v.
TeleZone Inc., 2010 SCC 62).
Using the Courts: Judicial Review
Is Judicial Review Available?

Whether there are discretionary grounds to deny the judicial review

•There
are various grounds to deny the judicial review (previously discussed). Another consideration that
comes often arises concerns time limits.

•A party
should ensure they did not delay bringing an application for judicial review, or the court may
exercise its discretionary power not to hear the matter.

•A partyshould also ensure that he or she has not missed any specified deadlines within which a party
must file an application for judicial review.

•Some statutes impose time limits. For example:

•The Federal Courts Act states that a judicial review application from a federal tribunal to the Federal Court must be
made within 30 days of the time the underlying decision or order is first communicated.
•In Alberta, the rules impose a six-month time limit on all applications for judicial review, except habeas corpus
applications.
•Nova Scotia precludes all applications for judicial review after the earlier of six months following the decision, or 25
days after the decision is communicated to the person.
•In British Columbia, the general time limit is 60 days.
Using the Courts: Judicial Review
Is Judicial Review Available?

Discretionary grounds to deny& the power to extend

• But keep in mind the power to extend.

• Courts are often statutorily empowered to extend the time limit for making a judicial
review application.

• For example - courts may extend the time limit:

• where there is a reasonable explanation for the delay
• where no substantial prejudice or hardship would result from such an extension,
or
• where the party can demonstrate prima facie grounds for relief.

• Even where no specific time limit is specified like in the JRPA, parties should not delay in
bringing an application for judicial review.
Using the Courts: Judicial Review
Is Judicial Review Available?

Possible remedies?

• Presuming the party passed the threshold for judicial

review – what remedies are available to a party
challenging an administrative action/decision?
• Prerogative writs
• Private remedies
Using the Courts: Judicial Review

7. Standing

• Who can apply for judicial review?

• Not every citizen is entitled, as of right, to challenge administrative action.

• Judicial review is reserved for those who are found to have a sufficient
legally recognized interest in the matter to justify their application.

• It is said that the test for standing is whether the applicant is a “person
aggrieved” by the administrative decision.

• A person aggrieved is one who will suffer some “peculiar grievance of their own beyond
some grievance suffered by them in common with the rest of the public.”
Using the Courts: Judicial Review
7. Standing

• Determining standing:
• Language of the statute (most common),
• Public interest, or
• Constitutional challenge

• Question: Can a party participate in the case? Is there a criteria?

Using the Courts: Judicial Review
7. Standing

• Whether an individual has standing to bring an application

for judicial review, or an appeal from the decision of a
tribunal, is governed by the language of the particular
statute.

• Some statutes provide for a narrow right of standing while

others provide for a broader right.
Using the Courts: Judicial Review
• For example:

• The Ontario Residential Tenancies Act, 2006, establishing the Landlord

Tenant Board, sets out that:
“[t]he parties to an application are the landlord and any tenants or other
persons directly affected by the application.”

• Ontario’s Statutory Power Procedures Act provides:

The parties to a proceeding shall be the persons specified as parties by or
under the statute under which the proceeding arises or, if not so specified,
persons entitled by law to be parties to the proceeding.

• Section 18(1) of the Federal Court Act provides that an application for
review may be made by:
"anyone directly affected by the matter in respect of which the relief is sought".
Using the Courts: Judicial Review
Public Interest Standing:

• There is another type of standing significant in admin law: public interest standing. May overlap with
constitutional challenges.

• Limitations on standing are necessary in order to ensure that courts do not become hopelessly
overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to
ensure that courts have the benefit of contending points of view of those most directly affected and to
ensure that courts play their proper role within our democratic system of government.

• However, in the Charter era, the traditional rules concerning standing were relaxed to enforce the
principle of legality – that state action should conform to the Constitution. Now. public interest
standing can be used to challenge administrative decisions if the applicant meets the applicable test.

• First set out in Finlay v. Canada (Minister of Finance), [1986] 2 SCR 607. The test includes asking
the following questions:

• Is the matter serious and justiciable?

• Is the party seeking standing genuinely involved in the matter?
• Is there any other reasonable and effective way for the matter to be brought before the court?
Using the Courts: Judicial Review
Public Interest Standing:

• In Finlay, the Court applied this test to grant standing to a

recipient of social benefits to challenge the conduct of the
federal government toward the province of Manitoba
under the then Canada Assistance Plan.

• Finlay turned to the courts to force the government to

address the economically disadvantaged (and his own
situation).
Using the Courts: Judicial Review
Public Interest Standing:

• The Finlay court found: the applicant raised a serious issue with
respect to the legality of the government’s action (or, in this
case, its inaction in failing to penalize a province for breaching
the conditions of the Plan), and, as a recipient of the benefit in
question was clearly genuinely interested, standing was
granted.

• Because neither the federal government nor the provinces had

an interest in compelling a penalty from the federal government,
the Court also concluded that there was no reasonable
alternative by which the challenge would reach court.
Using the Courts: Judicial Review
In 2012, the Supreme Court broadened its public interest standing criteria in Canada (Attorney
General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45.

Facts:

• In 2007, Ms. Kiselbach and SWUAV filed a constitutional challenge to prostitution laws on the
basis that the regulations made sex work dangerous.
• The federal government argued they didn’t have the right to pursue the case, as neither
Kiselbach nor the group was at risk of being charged under the laws in question.
• The case made its way to the SCC, which ruled that Ms. Kiselbach, who now worked with a
violence prevention group, and SWUAV had public interest standing.
• The case involved a constitutional challenge but, as in the past, a change in public interest
standing in constitutional matters will likely spill over to administrative law.

Issue:

• whether the three factors which courts are to consider in deciding the standing issue are to be
treated as a rigid checklist or as considerations to be taken into account and weighed in
exercising judicial discretion in a way that serves the underlying purposes of the law of
standing.
Using the Courts: Judicial Review
Decision:
• Courts should take a flexible approach, and apply the test to strike a balance “between ensuring access to the
courts and preserving judicial resources.

• Whether the case raises a serious justifiable issue. The question raised must be a “substantial constitutional
issue” or an “important one.” The claim must be “far from frivolous,” although courts should not examine the
merits of the case in other than a preliminary manner.

• The applicant must have a genuine or direct interest in the outcome of the litigation. This factor is concerned
with whether the plaintiff has a real stake in the proceedings or is engaged with the issues they raise.

• Whether the case represents a reasonable and effective means to bring the matter to court. Notably, this
does not ask whether there are no other reasonable and effective ways to bring the matter to court. Taking a
purposive approach to the issue, courts should consider whether the proposed action is an economical use
of judicial resources, whether the issues are presented in a context suitable for judicial determination in an
adversarial setting and whether permitting the proposed action to go forward will serve the purpose of
upholding the principle of legality.  A flexible, discretionary approach is called for in assessing the effect of
these considerations on the ultimate decision to grant or to refuse standing.  There is no binary, yes or no,
analysis possible: whether a means of proceeding is reasonable, whether it is effective and whether it will
serve to reinforce the principle of legality are matters of degree and must be considered in light of realistic
alternatives in all of the circumstances.
Using the Courts: Judicial Review
Discretionary grounds to deny:

Public interest standing before admin tribunals

•When should public interest standing be established before an administrative agency?

•Thiswas the question at the heart of the Supreme Court of Canada’s (“SCC”) recent decision in Delta Air
Lines Inc. v Lukács, 2018 SCC 2. where Dr. Gábor Lukács, an “air passenger rights advocate,” filed a
complaint with the Canadian Transportation Agency (“CTA”) alleging that several of Delta Air Lines’s (“Delta”)
practices discriminate against obese people contrary to section 111(2) of the Air Transportation Regulations
, SOR/88-58 (“Regulations”).

•The CTA dismissed Dr. Lukács’ complaint on the basis that he had failed to meet either of the tests for private
or public interest standing developed by courts of civil jurisdiction.
•CTA found that Dr. Lukács had failed to establish a “sufficient interest” in Delta’s policies pertaining to obese
people since “he himself was not obese”
•CTA also found that Dr. Lukács lacked public interest standing since he was not challenging the
constitutionality of legislation or the impermissible exercise of administrative discretion.
Using the Courts: Judicial Review
Discretionary grounds to deny:

Delta Air Lines Inc. v. Gábor Lukács

•TheSCC found that CTA had erroneously proceeded on the assumption that it was
bound by the test for public interest standing developed by and for civil courts.

•The SCC majority’s decision precludes agencies from rigidly applying the standing
tests developed by the civil courts but did not provide a more purposive vision.

•Justice Abella(for the minority) noted that it was not for the Court to second-guess the
CTA’s decision to apply the test developed by the civil courts. “[W]hile the [CTA] is not
required to apply the same standing rules used by the courts”, she emphasized, “nothing in
its governing statute prevents it from doing so”.
Using the Courts: Judicial Review
Discretionary grounds to deny:

• Be aware of the grounds that the court may refuse your

application for judicial review.

• Also keep in mind that recent cases from the Supreme Court
seem to be moving toward affirming the courts’ own power (as
opposed to the power of legislatures) to establish the terms on
which they will grant judicial review.

Resource: Guide to Judicial Review in Divisional Court

• [Link]
[Link]
Using the Courts: Judicial Review
What remedies are available to a party challenging an
administrative action/decision?

• We know that judicial review allows the court to consider the

entire decision-making process, including the process, and the
findings of fact and of law.

• The power of judicial review is found either in the enabling statute

or by virtue of the common law.

• The common law powers are derived from the original prerogative
writs (remedies). Historically - if there was no appropriate remedy,
then the administrative action could not be challenged.
Using the Courts: Judicial Review
Remedies - Prerogative Writs

• Certiorari (to quash or set aside a decision),

• Prohibition (to order a tribunal not to proceed),
• Mandamus (to order the performance of a
public duty)
• Declaration, and
• Habeas corpus (to order the release of the
unlawfully imprisoned
Using the Courts: Judicial Review
Prerogative writs

• Over time, each of these writs came to be characterized by technical complexity

and arcane rules.

• Potentially meritorious applications were dismissed because the applicant had

petitioned for the wrong writ, or because his or her claim was barred by some
technical limitation.

• For example, although court decisions later re-expanded the writ’s scope, a
number of cases in Canada (in the 1960s and 1970s) held that certiorari and
prohibition were only available to address “judicial” or “quasi-judicial” final
decisions that affected the rights of citizens.

• Over the next 30 years, nearly all of the provinces and territories enacted statutes
that replaced the old common-law writs (the remedies) with a single application for
judicial review.
Using the Courts: Judicial Review
Prerogative writs & statutory reform

•The writs were modified by statute to redress problems arising from the writs’ extreme technicality and
unjustified narrowness.
  
•the Judicial Review Procedure Act established rules for courts reviewing errors of both law and fact.
Ontario conferred most judicial review authority onto a three-judge bench of the then Ontario High Court,
the Divisional Court.

•the
Statutory Powers Procedure Act created an additional source of procedural requirements and set
minimum standards for administrative proceedings.

•Thecreation of the Federal Court Act allowed for the almost complete transfer of remedial jurisdiction
over federal statutory decision makers from the provincial superior courts to the newly created Federal
Court of Canada.

•However, still necessary to understand the ancient writs to understand the scope and range of remedies
available through judicial review today.

 
Using the Courts: Judicial Review
Certiorari (to quash or set aside a decision)
 
• Certiorari is the most commonly used prerogative remedy, both historically and today.

• Certiorari (which means “cause to be certified”) is a special proceeding by which a superior court
requires some inferior tribunal, board, or judicial officer to provide it with the record of its proceedings
for review for excess of jurisdiction.

• It was the established method by which the Court of King’s Bench in England, from earliest times,
checked the jurisdiction of inferior courts and maintained the supremacy of the royal courts.
 
• A successful certiorari application results in the “quashing” (effectively, the invalidating) of a tribunal’s
order or decision.
 
• It is an ex post facto remedy which means it happens after the decision and retroactively changes the
legal consequences of the decision.

• Note, however, that generally the court cannot substitute its decision for the decision of a tribunal that
the court finds had erred, because the court has not been granted the statutory decision-making
authority and does not have the expertise that the tribunal has.
Using the Courts: Judicial Review
Certiorari (to quash or set aside a decision)
 
• The reviewing court will only substitute its decision in exceptional circumstances.

• Subsection 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, gives this court
jurisdiction to substitute its own remedy.

• In Stetler v. The Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2009 ONCA 234 (CanLII)
at para. 42, 93 Admin. L.R. (4th) 312 the Court of Appeal states:

• While “[a] court may not substitute its decision for that of an administrative decision-maker
lightly or arbitrarily”, exceptional circumstances may warrant the court rendering a final decision
on the merits.  Such circumstances include situations where remitting the case would be
“pointless”, where the tribunal is no longer “fit to act”, and cases where, “in light of the
circumstances and the evidence in the record, only one interpretation or solution is possible,
that is, where any other interpretation or solution would be unreasonable”: Giguère v. Chambre
des notaires du Québec, 2004 SCC 1 (CanLII), [2004] 1 S.C.R. 3, at para. 66.

• SEE ALSO - Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.), at
paragraphs 60-65, where the Court dismissed a request to make its own order and instead, as is
the usual practice, referred the case back to the Tribunal for its further consideration.
Using the Courts: Judicial Review
Prohibition (to order a tribunal not to proceed)
 
• The related writ of prohibition is another special proceeding, issued by an
appellate court to prevent a lower court from exceeding its jurisdiction, or
to prevent a non-judicial officer or entity from exercising a power.

• Prohibition is a kind of common-law injunction to prevent an unlawful

assumption of jurisdiction.

• Unlike certiorari, which provides relief after a decision is made,

prohibition is used to obtain relief pre-emptively.

• Prohibition stops the proceedings of any tribunal, board, or person

exercising judicial functions in a manner or by means not within its
jurisdiction or discretion.
Using the Courts: Judicial Review
Mandamus (to order the performance of a
public duty)

•Mandamus (meaning, literally, “we command”) is a

writ issued by a superior court to compel a lower
court or a government agency to perform a duty it is
mandated to perform.

•It is often combined with an application for certiorari.

•Certiorari would be used to quash a decision—for
example, for a lack of procedural fairness
•Mandamus would be used to force the tribunal to
reconsider the matter in a procedurally fair manner.

•A variation on mandamus gives the court the ability to

send a matter back to a tribunal for reconsideration,
with directions.
Using the Courts: Judicial Review
Mandamus (to order the performance of a public duty)

•Superior courts have the inherent power to order reconsideration with

directions, and several provincial statutes and rules of court, as well as
the Federal Courts Act, also grant this power.
 
•If the court issues directions, it must clearly state what the original panel is
to do or what it must refrain from doing.
•These directions may only protect against unfair procedures or excess of
power, and cannot tell the tribunal how it must decide.

•The general rule is that mandamus cannot be sought to compel the

exercise of discretion in a particular way, although exercises of
discretion must always conform to the Charter.
Using the Courts: Judicial Review
Declaration

• A declaration is a judgment of a court that determines and states the legal

position of the parties, or the law that applies to them.

• There are two kinds of declarations:

• the public law variety, which is used to declare some government action ultra vires, and
• the private law variety, which is used to clarify the law or declare a party’s rights under statute.

• The public law variety is the main concern of administrative law.

• Declarations are not enforceable, and they cannot require anyone to take or
refrain from taking any action.

• The non-coercive nature of the remedy has not often proven to be a problem,
because court declarations against government bodies in particular tend to be
respected.
Using the Courts: Judicial Review
Habeas corpus (to order the release of the unlawfully imprisoned) and quo
warranto

• These writs are less common today

• Habeas corpus (literally, “produce the body”) is a writ employed to bring a person before a court,
most frequently to ensure that the person’s imprisonment or detention is not illegal.

• Like certiorari, habeas corpus continues to live an active life in the United States, where it is the
primary mechanism for challenging state death penalty sentences in federal court.

• In Canada, habeas corpus applications are rare. Most are brought by prisoners detained in
correctional institutions, and by police, immigration, child welfare, and mental health detainees.

• Quo warranto (“by what warrant?” or “by what authority?”) is a writ used to inquire into what authority
existed to justify acts by or powers claimed by a public office. It is rarely used today, and some
provinces have abolished it by statute.

• Quo warranto is still used in Quebec and New Brunswick to challenge the authority of municipal
councillors on the basis of a prohibited conflict of interest.
Using the Courts: Judicial Review
Statutory Reform
 
• Some provinces enacted statutes governing judicial review
or statutory and civil procedure, while others used their rules
of court to enact changes. (Only Yukon Territory seems to
have left the common law untouched).

• The details vary from one statutory scheme to another, but

key statutes that may apply are:

• the Federal Courts Act

• the Ontario and B.C. Judicial Review Procedure Acts (JRPAs)
• the Ontario Statutory Powers Procedure Act
• the B.C. Administrative Tribunals Act
• the P.E.I. Judicial Review Act
• Quebec’s Code of Civil Procedure, and
• the rules of court in other provinces and territories.
Using the Courts: Judicial Review
Statutory Reform

• These important statutes have sought to clarify procedure surrounding judicial review.
Some have also sought to change the substantive shape of judicial review itself.

• Therefore, parties considering challenging a tribunal order must be aware of the

relevant statutes’ provisions, in addition to the provisions of the tribunal’s own
enabling statute.

• Generally, these statutes may provide for the following:

• Simplified judicial review application procedures

• Simplified remedies
• Greater clarity as to who may be parties to a hearing
• A right of appeal, and
• Judicial review mechanisms to challenge interlocutory orders and to resolve interim
issues.
Using the Courts: Judicial Review
Statutory Reform: simplified application procedures & remedies

• A statute may state that applications for orders “in the nature of” mandamus,
prohibition, or certiorari shall be deemed to be brought by way of an originating notice
or petition.

• The new judicial review application combines, and in the process supersedes, the old
writs of certiorari, prohibition, mandamus, public law declaration, and injunction.

• It is sufficient for a party to set out the grounds on which relief is sought and the
nature of the relief sought, without having to specify under which particular writ he or
she might have proceeded at common law.

• Some statutes also expressly give courts the authority to ignore technical
irregularities or defects in form if the court finds no substantial wrong or miscarriage
of justice has occurred.
Using the Courts: Judicial Review
Statutory Reform: Simplified application procedures & remedies

• With respect to simplified remedies, a statute may include, for example, the power to
set aside a decision or direct the tribunal to reconsider its decision, with or without
directions.

Judicial Review Procedure Act

• Applications for judicial review
• 2 (1) On an application by way of originating notice, which may be styled “Notice of
Application for Judicial Review”, the court may, despite any right of appeal, by order
grant any relief that the applicant would be entitled to in any one or more of the
following:
• 1. Proceedings by way of application for an order in the nature of mandamus,
prohibition or certiorari.
• 2. Proceedings by way of an action for a declaration or for an injunction, or both, in
relation to the exercise, refusal to exercise or proposed or purported exercise of a
statutory power.  R.S.O. 1990, c. J.1, s. 2 (1).
Using the Courts: Judicial Review
Statutory Reform: Greater clarity as to who may be parties to a hearing

• It may specifically set out who the parties may be.

• For example, decision-makers whose exercise of statutory authority is being

questioned.
 
• Generally, judicial review statutes also provide that notice must be given to the
attorney general, who is entitled as of right to be heard on the application.

Statutory Reform: A right of appeal

 
• Judicial review applications are generally made to provincial superior courts,
and the statutes provide for a subsequent right of appeal to the provincial
Court of Appeal.
Using the Courts: Judicial Review
Statutory Reform: Judicial review mechanisms to challenge interlocutory orders
and resolve interim issues

•Lastly, statutory reforms may put in place judicial review mechanisms to challenge interlocutory
orders and to resolve interim issues

•At common law, certiorari was only available with respect to “decisions”— that is, final orders.

•However, the B.C. and Ontario Judicial Review Procedure Acts use the words “exercise of statutory
power” rather than the word “decision,” thereby expanding the range of judicial review to include any
exercise of statutory power.

•Other statutes permit a tribunal itself to refer a “stated case” to the courts for determination of a
question of law, after which the case can go back to the original tribunal for determination of the
ultimate issues.

•For example, B.C. tribunals that do not have jurisdiction over constitutional questions under the
Administrative Tribunals Act can issue a stay and refer a constitutional question to a court of
competent jurisdiction. Enabling statutes must authorize stated cases.
 
Using the Courts: Judicial Review
Statutory Reform: Judicial review mechanisms to challenge
interlocutory orders and resolve interim issues

• An important question arises: as you’re challenging a decision through

judicial review, what happens in the meantime – is the ADM’s decision
stayed until the judicial review is resolved?

• A party contemplating judicial review should be aware that, unlike an

appeal, an application for judicial review usually does not automatically
stay the enforcement of the underlying tribunal order (although the tribunal
or the court or both may have the power to stay the tribunal’s order on
application).

• The legislative decision to make stays automatic for many appeals but not
for judicial review applications is consistent with the “last resort” nature of
judicial review.
Using the Courts: Civil Action-Private Law
• In some circumstances, unhappy
parties may prefer monetary relief to
any remedy they could receive under
judicial review.

• The key issue is that neither the old

prerogative writs nor the new statutory
remedy of judicial review allows a party
to obtain monetary relief through JR.

• However, increasing attempts to obtain

private law remedies from public
bodies have put pressure on judicial
review.
Using the Courts: Civil Action-Private Law
• When we looked at the 3 sources from which the courts get their power to review administrative
decision-making, we started with original jurisdiction.

• Ordinary courts have jurisdiction over the decisions of administrative decision-makers when they are
challenged by way of direct actions by a citizen in contract or tort on the ground that the state has
infringed an individual’s private legal right.

• The Crown and its servants can be liable to private parties for monetary relief, although some
statutes limit individual administrative tribunal members’ liability.

• To seek monetary relief, an aggrieved party must initiate a separate civil action for restitution or
damages alongside, or in lieu of, a judicial review application.

• Although certain government action enjoys immunity from lawsuits depending on justifiable public
policy, government agencies can be sued, for example:

• for breach of contract,

• for the tort of negligence, or
• for the special tort of misfeasance in (or abuse of) public office.

• Here, you need to be familiar with the Crown Liability and Proceedings Act, 2019
Using the Courts: Civil Action-Private Law
Overlap between private rights of action and judicial review

• The precise relationship and potential overlap between private rights of action
and judicial review applications was a cause for concern for a number of years.

• Until 2010, courts upheld the Grenier Principle (Canada v. Grenier, 2006 CA),
which stood for no collateral attack in other forums (like private actions) until
the judicial review is resolved.

• Then, in the 2010 SCC case Canada (Attorney General) v TeleZone Inc.(SCC
62), a case concerning private law claims for breach of contract, negligence,
and unjust enrichment, the Supreme Court of Canada made it clear that:

• parties do not need to seek judicial review before they can bring a private law
action for damages, and the private law action does not violate the rule against
collateral attacks.
Using the Courts: Civil Action-Private Law
• If a party has a fundamentally private law claim arising from an administrative decision, and
primarily wants monetary damages, that party may proceed by way of private action.

• In Telezone, the net of federal government liability was widened by providing litigants with a
choice of procedure to challenge the decision-making of a federal board, commission or other
tribunal).

• The implications of Telezone are that:

• A party can seek monetary damages for suffering caused as a result of a decision or action by an ADM either
through judicial review or through a civil action.

• A party no longer has to bring an application for judicial review or wait for judicial review to conclude in order to
pursue monetary damages

• BUT – the Court still has discretion to stay the claim if it decides the essential character of action
is judicial review, and the prime objective is not compensation for the effect of an unlawful action.

• As Justice Binnie points out - “no amount of artful pleading in a damages case will succeed in setting aside the
order said to have harmed the claimant or enjoin its enforcement. … The claimant must … be content to take its
money (if successful) and walk away leaving the order standing.”
Using the Courts: Civil Action-Private Law
The special tort of misfeasance in (or abuse of) public office

• To succeed in an action for tort of misfeasance in public office, the plaintiff

must establish:

• deliberate and unlawful conduct by someone in public office, and

• the public officer’s subjective knowledge that the conduct was unlawful and likely to harm the
plaintiff.

• Because this tort alleges bad faith on the part of a public official, “clear
proof commensurate with the seriousness of the wrong” is required.

• The underlying purpose of the tort is to protect each citizen’s reasonable

expectation that public officials will not intentionally injure members of the
public through deliberate and unlawful conduct in the exercise of public
functions.
Using the Courts: Civil Action-Private Law
The special tort of misfeasance in (or abuse of) public office

• The leading case on the tort of misfeasance in public office, is Odhavji Estate v.
Woodhouse, 2003 SCC 69.

• Odhavji involved an action for damages against police officers and the chief of the
Metropolitan Toronto Police by the estate of an individual shot by the police.

• The plaintiffs alleged that the police officers involved in the shooting did not promptly
or fully comply with their statutory duty to cooperate with an ensuing investigation,
and that the chief of police did not adequately compel them to cooperate.

• The case made its way to the Supreme Court of Canada on the defendant’s motion
to dismiss the plaintiff’s claim, where the Court determined that the plaintiff had made
out a cause of action and that the matter should be allowed to proceed.

• The Court held that there was such a thing as the tort of misfeasance in public office.
Using the Courts: Civil Action-Private Law
The special tort of misfeasance in (or abuse of) public office

• Since Odhavji, only a few cases have succeeded on a claim of tort of misfeasance in public office.

• In McMaster v. The Queen (2009), F.C. 937, F.C.J. No. 1071 (QL), a prisoner with large feet requested new
pair of properly fitting shoes when his old shoes became worn out.

• A long and apparently intentional delay followed in getting him new shoes and, while waiting, he injured his
knee while exercising in his old shoes.

• Correctional Services of Canada and prison staff were found liable in tort for misfeasance in public office, for
unlawfully delaying Mr. McMaster’s new shoe request when they should have known he was at risk of injury.

• As the previous cases make clear, some torts overlap with a potential judicial review application, while others
do not.

• Judicial review was not a possibility in Odhavji or McMaster, because no administrative decision was being
challenged in those cases. In other cases, a tribunal’s conduct may be precisely what is being challenged.

• Since Telezone, the precise relationship and potential overlap between private rights of action and judicial
review applications is no longer a cause for concern.
Using the Courts: Civil Action-Private Law
Money Damages for Charter Breaches

• When the police or any government actor breaches any of the rights and
freedoms guaranteed by the Charter, s. 24(1) of the Charter empowers courts
to order any remedy that the court considers appropriate and just in the
circumstances.

• Section 24(1) does not appear to limit the court’s choice of remedies. A court
may: dismiss the charge, stay the proceeding, quash a search warrant, or
exclude evidence.
Using the Courts: Civil Action-Private Law
Money Damages for Charter Breaches

• But there has been little authority on monetary damages for Charter breaches, until 2010
and the case of Vancouver (City) v. Ward, 2010 SCC 27. Ward is significant because it
offers guidance on when monetary damages should be awarded for Charter breaches, and
the amount that is appropriate.

• The facts:

• Ward, a Vancouver lawyer, attended a ceremony in Vancouver where Prime Minister

Chrétien was present. The Vancouver Police Department, acting on information that
someone intended to throw a pie at the Prime Minister, mistakenly identified Mr. Ward as
the would-be pie thrower and detained him.
• Ward loudly protested this detention and was arrested for breach of the peace.
• Once he arrived at the police station, Mr. Ward was strip searched and then left in a
small cell where he spent several hours.
• In the meantime, Mr. Ward's car was impounded so that the police could later search it.
• The officers did not charge Mr. Ward, and he was released.
Using the Courts: Civil Action-Private Law
Money Damages in Charter Breaches

• Mr.
Ward brought an action for breach of his Charter rights against the City and others for his arrest, detention, strip search, and car seizure. The trial judge assessed
damages under section 24(1) at $100 for the car seizure and $5,000 for the strip search.

• The Supreme Court found that damages can be an appropriate remedy under section 24(1). Chief Justice McLachlin found that section 24(1) grants courts broad
discretion to award damages.

• Four-part inquiry:

• Has a Charter right been breached?

• Isan award of damages just and appropriate having regard to whether they would serve a useful function or purpose, namely that they fulfil one or more of the following
related functions:

• compensation – that is, is there a personal loss – whether physical, psychological, or pecuniary – being remedied? This could also include intangible interests, such as
as distress, humiliation, embarrassment, and anxiety;

• vindication of the right, which focuses on the harm the Charter breach causes to the state and to society;

• and/or deterrence of future breaches, which seeks to regulate government behaviour, generally, in order to achieve compliance with the Constitution.

• Arethere any countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust.  These include the
existence of alternative remedies that meet the same functional concerns, or good governance.

• What quantum is “appropriate and just”? In short, it depends.

• Based on these principles, the Court allowed damages for the strip search, but not for the car seizure: $5000 in total.

• [Link]
Using the Courts: Civil Action-Private Law
Ernst v. Alberta Energy Regulator, 2017 SCC 1
Facts:

• Ernstalleged that the Alberta Energy Regulator breached her s. 2(b) Charter right when it refused to communicate with her about her concerns about
local hydraulic fracturing. She sought damages. In response, the Board relied on the statutory immunity clause that precluded all claims against it for any
conduct, and moved to strike the claim. Ernst argued that the clause was unconstitutional.

Issue: is the clause unconstitutional?

Decision: no, because it doesn’t bar claims for Charter damages, which can never succeed anyway.

• Four justices rely on the countervailing requirements step of the analysis:

• First,
there is an alternative remedy — judicial review — that substantially addresses the alleged Charter breach. Judicial review is available to vindicate
Charter rights and to clarify the law so as to prevent similar future breaches. Although she couldn’t get damages on a JR, the court could have ordered
corrective action and done it much sooner.

• Second, good governance concerns are also engaged as granting damages undermines the effectiveness of the Board and inhibits effective
governance. Allowing claimants to bring claims for damages against the Board has the potential to deplete the Board’s resources, with respect to both
funds and time. Allowing a claimant to bring a damages claim against the Board may also result in defensive actions by the Board, which would “chill” its
ability to otherwise carry out its statutory duties effectively and in the public interest. Likewise, the Board is required to balance public and private
interests in the execution of its quasi-judicial duties, and this responsibility is inconsistent with being liable to an individual claimant for damages

• Third,
to determine the appropriateness of Charter damages against this type of board on a case-by-case basis in a highly factual and contextual
manner largely undermines the purposes served by an immunity.

• AbellaJ. agreed that this was the likely result, but dismissed the appeal given Ernst’s failure below to challenge the constitutionality of the immunity
clause.