ONTARIO BAR

ASSOCIATION: YOUR
FIRST JUDICIAL REVIEW
OVERVIEW OF THE
JUDICIAL REVIEW
PROCESS

May 7, 2013

By: By:
Tiffany Soucy Paul Lomic
Ara Basmadjian, student-at-law John OToole, student-at-law
Dentons Canada LLP Gowling Lafleur Henderson LLP
Contents

PART I What is a Judicial Review and When Should You Bring One? 2
PART II Types of Decisions that Lend Themselves to Judicial Review 5
PART III Conditions That Must be Met Before You Bring a Judicial Review 6
PART IV What Relief is Available on Judicial Review? 10
Conclusion 21
PART I What is a Judicial Review and When
Should You Bring One?

Administrative Bodies

Canada could be said to be an Administrative State.1 A vast number of government-created bodies

provide a wide range of services to Canadians on a daily basis. These public tribunals, boards, officers,

and other public decision-makers exercise a certain amount of decision-making power that the

government has bestowed upon them.2 All administrative bodies are creations of statute and, as such,

derive their jurisdiction from their governing statutes.3 Judicial review is the process by which the courts

oversee administrative decision-makers to ensure that their decisions are legal and are within their

conferred powers. Essentially, the courts may review and grant relief regarding an administrative decision

where the decision-maker exceeded its statutory mandate or breached the principles of procedural

fairness. 4 As such, one should bring an application for judicial review when it appears that an

administrative decision-maker has rendered a decision without observing procedural fairness, or has

rendered a decision that is untenable at law.

Judicial Review vs. Appeal

To understand what judicial review is, it is helpful to understand what it is not. Several aspects of judicial

review make it distinct from an appeal. A litigant is not entitled to appeal a court decision unless there is a

statute which sets out a right of appeal.5 The right to bring a judicial review, on the other hand, is an

equitable right which stems from the superior courts supervisory role over government action. 6 The

federal courts are statutory courts receiving the power to review decisions from legislation.

1
G Van Harten, G Heckman, and DJ Mullan, Administrative Law, Cases, Text, and Materials, 6th ed. (Toronto: Edmond
Montgomery Publications, 2010) [Administrative Law] at p. 4.
2
See Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker].
3
Ibid, at para 53.
4
Administrative Law, supra note 1 at 26-27 and 69. The text discusses four grounds of review which all fall under the duty of
fairness or untenable decisions, i.e., procedural impropriety, illegality, unreasonableness, and unconstitutionality.
5
See for example, Chagnon v Normand, [1889] SCJ No. 35.
6
Administrative Law, supra note 1 at 25.
Grounds of Review

The focus of a judicial review is usually on the procedure followed in reaching the decision being

reviewed. Principles of procedural fairness such as the right to be heard and the right to have the matter

decided by an independent and impartial decision-maker stem from a wide variety of sources. 7 The

enabling statute, which creates the administrative decision-maker, may have specific procedures drafted

into it.8 Further, general procedural statutes, regulations, policies and guidelines, and the common law all

afford certain procedural rights to those facing an administrative body.9

The courts may also review an administrative decision on substantive grounds. Though a more detailed

review is beyond the scope of this paper, the substantive review of an administrative decision centres on

the amount of deference that will be afforded to that decision-maker. The court will analyze the

substantive decision on a standard of reasonableness or correctness, the latter, of course, being the

more stringent.10

Federal vs. Provincial

Depending on the level of the administrative body, judicial review of those decisions will usually proceed

in either the Ontario Divisional Court, the Superior Court of Justice, the Federal Court,11 or the Federal

Court of Appeal. The jurisdiction of these Courts is mutually exclusive, meaning that the Divisional Court

cannot review decisions of Federal administrative bodies, and the Federal Courts cannot review decisions

of Ontario administrative bodies. For Ontario administrative bodies, the decision-making process is

governed by the Statutory Powers Procedure Act 12 and judicial review procedure is governed by the

Judicial Review Procedure Act 13 and the Rules of Civil Procedure. 14 Judicial review of Ontario

7
The procedural protections afforded to those interacting with administrative bodies are collectively referred to as the Duty of
Fairness.
8
See for example, Immigration Act, 1976, 1976-77 (Can.), c. 52, as examined in Singh v Canada (MEI), [1985] 1 SCR 177, and
cited in Administrative Law, supra note 1 at 77.
9
Administrative Law, supra note 1 at 77-107.
10
Dunsmuir v New Brunswick (Board of Management), [2008] 1 SCR 190 [Dunsmuir].
11
There are exceptions: the Superior Court of Justice also has jurisdiction to hear judicial reviews regarding the constitutionality of a
decision (see for example, Courts of Justice Act, RSO 1990, c. C.43 [CJA], s. 11(2)).
12
RSO 1990, c. S.22 [SPPA].
13
RSO 1990, c. J.1 [JRPA].
14
CJA, Reg. 194, R. 38, 68 and CJA, s. 21.
administrative body decisions usually proceeds by way of Notice of Application for Judicial Review15 to

the Divisional Court.16 Conversely, Federal administrative bodies are governed by the Federal Courts

Act17and the Federal Courts Rules.18

15
JRPA, supra note 13, s. 2(1).
16
Ibid, s. 6(1). There are exceptions, found at s. 6(2), and see note 7, above.
17
Federal Courts Act, RSC 1985, c. F-7 [FCA], s. 2(1).
18
Federal Courts Rules, SOR/98-106 [FCR], Part V.
PART II Types of Decisions that Lend Themselves
to Judicial Review
As an Administrative State there are many subjects and topics that are dealt with by way of an

administrative body or officer acting pursuant to statutory authority and, as such, a wide variety of

decisions that lend themselves to judicial review. Broadly speaking, the types of decisions which may

attract judicial review include those dealing with employment and labour matters,19 immigration matters,20

human rights issues, 21 energy 22 and telecommunications 23 matters, and decisions made by the vast

number of self-regulated professions.24

Most applications for judicial review seek to challenge the decision made by the tribunal or decision

maker on the basis that the decision was procedurally unfair or outside the scope of the decision makers

statutory authority.25 Because an administrative tribunal is acting pursuant to statutory power conferred

on it by legislation, there is a tension that is created by the judicial review process; as the Supreme Court

of Canada in Dunsmuir discussed, the tension is between the efficient operation of administrative

tribunals, by giving tribunals decision-making authority, and the preservation of the rule of law, by allowing

courts to oversee the tribunals and ensure that they have exercised their statutory power appropriately.26

Thus, in the process of judicial review, courts must be careful not to unduly interfere with the

administrative tribunals function in respect of matters that have been delegated to it by Parliament and

the legislatures.27

19
See for example, Dunsmuir, supra note 10 at paras 27-28.
20
See for example, Baker, supra note 2.
21
See for example, Bell v Ontario (Human Rights Commission), [1971] SCR 756.
22
See for example, West Coast Energy Inc. v Canada (National Energy Board), [1998] 1 SCR 322.
23
See for example, Capital Cities Communications Inc. v Canada (Radio-Television & Telecommunication Commission), [1978] 2
SCR 141.
24
Administrative Law, supra note 1 at 5-8, see also for example, Ryan v Law Society (New Brunswick), [2003] 1 SCR 247.
25
DP Jones and AS de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) [Principles of Administrative
Law] at p. 150.
26
See for example, Dunsmuir, supra note 10, para 27.
27
Ibid.
PART III Conditions That Must be Met Before You
Bring a Judicial Review
Before bringing an application for judicial review, there are a number of conditions that must be met.

Below is a sample of these considerations.28

Public Administrative Bodies

Only a decision of a public actor can be judicially reviewed.29 As mentioned above, administrative bodies

derive their power from statute. It is the statutory nature of their decision-making that attracts supervision

by the courts. As such, decisions of a private entity, regardless of their impact on your client, cannot be

judicially reviewed. The proper course for private action is a civil lawsuit.

Was there a Decision?

Of course, there must be a decision for the courts to review. This may seem like common-sense, but it

must be remembered that the courts will only review a decision of a public body that is determinative.30

That is, the decision must have an effect on the legal rights, powers, privileges, immunities, duties or

liabilities of a complainant, or their eligibility to receive a benefit or licence.31 Preliminary or interlocutory

decisions of a tribunal or board are usually not considered to have a sufficient level of finality to warrant

judicial review.

Public Action vs. Private Action

While an administrative body may have been created by statute and have been given powers under a

statute, not all decisions of a public body are reviewable. The specific decision which you seek to have

judicially reviewed must have been one which was made in exercise of that bodys public function.32 To

determine whether the decision is reviewable, you should consult the enabling statute of that
28
Consult all applicable legislation to ensure that all conditions have been met.
29
JRPA, supra note 13, s. 1; FCA, supra note 17, s. 2(1).
30
Ibid.
31
JRPA, supra note 13, s. 1.
32
Supra, note 16.
administrative body. If the decision you seek to have reviewed was one which the board or tribunal was

mandated to make, judicial review may be available. If the decision was purely a business decision or

was irrelevant to that administrative bodys public function, the decision is not reviewable.

Is There Another Appeal Route Available?

Courts will often decline to intervene if all avenues of appeal or reconsideration available to the

complainant have not been exercised. 33 You must review the enabling statute as well as any other

applicable statutes to determine if the decision you seek to review could be appealed or reviewed by a

process other than judicial review. Many administrative bodies have internal systems for dealing with

unhappy citizens. Sometimes it can be as easy as asking the person who made the decision to revisit it

or speak with a more senior person in the agency. 34 Further, many administrative bodies have the

statutory power to reconsider their own decisions.35

In fact, the federal courts are prohibited from reviewing a decision where a statutory appeal route remains

unused.36 In contrast, section 2(1) of the Ontario JRPA, operates notwithstanding a right of appeal, i.e.

an applicant need not exhaust all appeal routes before bringing an application for judicial review in

Ontario. However, the case law indicates that the courts are hesitant to grant judicial review in

circumstances where an administrative bodys governing statute provides an appropriate appeal route

which has yet to be exercised.37 For example, in Canadian Pacific Ltd. v Matsqui Indian Band,38 the

Supreme Court of Canada considered the local remedies in the context of an aboriginal bands taxation

assessment regime. Pursuant to section 83 of the Indian Act,39 the Band passed a tax assessment by-

law which established an internal appeal process. On application for judicial review to the Federal Court,

Trial Division, the Trial Judge refused to grant judicial review on the basis that the assessment by-law

33
JRPA, supra note 13, s. 2(1) states that the Divisional Court may review a decision despite any right of appeal, however, courts
often decline to hear a judicial review if there were other statutory options that were not taken advantage of.
34
Administrative Law, supra note 1 at 22.
35
Ibid.
36
FCA, supra note 17, s. 18.5.
37
G Rgimbald, Canadian Administrative Law, 1st ed. (Markham: LexisNexis Canada Inc., 2008). [Canadian Administrative Law] at
p. 468; see for example Woodglen & Co. v North York (City) (1983), 42 OR (2d) 385.
38
[1995] 1 SCR 3 [Matsqui].
39
RSC 1985, c I-5.
provided an adequate alternative remedy. On appeal to the Supreme Court of Canada, Chief Justice

Lamer held as follows:

[A] variety of factors should be considered by courts in determining whether they should
enter into judicial review, or alternatively should require an applicant to proceed through a
statutory appeal procedure. These factors include: the convenience of the alternative
remedy, the nature of the error, and the nature of the appellate body (i.e., its
investigatory, decision-making and remedial capacities). I do not believe that the category
of factors should be closed, as it is for courts in particular circumstances to isolate and
balance the factors which are relevant.40

Timing

If the judicial review lies to the federal court, the application must be made with thirty (30) days after the

decision is communicated to the Deputy Attorney General, or to the party directly affected.41 By contrast,

if you wish to have a decision of an Ontario public body reviewed, there is no specific time limitation to

bring a judicial review.42 However, some enabling statutes may set out a limitation period for the review of

decisions made under their mandate. In either event, the court may extend the period of time for bringing

a judicial review if the circumstances call for it.43 It should be remembered, though, that judicial review is

discretionary in nature, and as is discussed below, an extended delay in bringing an application may

weigh against your client and may be grounds for the court to decline to exercise its discretion and grant

the application.

It is also important to remember that missing a limitation period is one of the leading reasons why

litigation lawyers are sued. It is essential that you specifically turn your mind to the limitation period as

soon as you make first contact with your client. In fact, even if you are not ultimately retained by a

potential client you still may face liability for not providing a referral in a timely manner because you did

not properly consider and advise with respect to the applicable limitation period. As such, you should

40
Matsqui, supra note 38 at para 41.
41
FCA, supra note 17, s. 18.1(2).
42
There are no time limits set out in the JRPA, nor the Rules of Civil Procedure. Section 5 of the JRPA, supra note 13, provides for
extensions of time for bringing an application for judicial review under any Act if the court is satisfied that there are apparent
grounds for relief and no substantial prejudice or hardship will fall on the respondent. Thus, you must look to the enabling statute to
determine if a specific decision must be reviewed within a certain time period.
43
FCA, supra note 17, s. 18.1(2); FCR, supra note 18, R. 8; JRPA, supra note 13, s. 5.
consider all of the legislation and applicable court rules and procedures governing the potential judicial

review so that you can properly advise your client or potential client with respect to limitation periods, and

take the appropriate steps.

PART IV What Relief is Available on Judicial
Review?
When considering the relief a party may seek on an application for judicial review, its important to keep in

mind that the reviewing court will not have any greater power than that of the tribunal whose decision it is

reviewing.44 The relief available on an application for judicial review falls into three main categories: (a)

prerogative remedies; (b) declarations and injunctions; and (c) damages and costs.

Section 2(1) of the JRPA provides as follows:

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.45

Further, pursuant to section 18(1) of the FCA:

Subject to section 28, the Federal Court has exclusive original jurisdiction:

(a) 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; and

(b) to hear and determine any application or other proceeding for relief in the nature
of 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.

44
S Blake, Administrative Law in Canada, 5th ed (Markham: Lexis Nexis Canada Inc., 2011) [Administrative Law in Canada] at p.
227.
45
JRPA, supra note 13.
(a) The Five Prerogative Remedies

Historically, prerogative writs were sought by the Crown as a means of ensuring that local magistrates

and inferior courts were upholding the standards of procedural fairness required by natural justice.46

Thus, prerogative remedies have at least traditionally been brought by the Crown on behalf of individuals

and are only available on an application for judicial review of a decision by a public body performing a

public function.47 Despite their public law origins and character, the prerogative writs are generally not

available against the Crown, the Legislative assemblies, or the superior courts.48 Again, it is important to

keep in mind, and will be discussed below, that prerogative remedies are discretionary in nature and the

court may refuse to grant the relief sought for a variety of reasons.

Certiorari and Prohibition

Certiorari and prohibition have been described as mirror images of one another.49 A writ of certiorari will

quash the order or decision of an administrative tribunal in cases of a jurisdictional error or an error of

law. Certiorari is only available when an administrative proceeding has led to the determination of a legal

right or affects an individuals interests. 50 Further, certiorari is only available in respect of decisions

purporting to exercise judicial or administrative powers of a statutory authority.51

In Martineau v Matsqui Institution (No. 2), 52 Justice Dickson (as he then was) described an order of

certiorari as follows:

Certiorari is available as a general remedy for supervision of the machinery of

government decision-making. The order may go to any public body with power to decide
any matter affecting the rights, interests, property, privileges or liberty of any person. The
basis for the broad reach of this remedy is the general duty of fairness resting on all
public decision-makers.53

46
Canadian Administrative Law, supra note 37 at p. 479.
47
Ibid.
48
Ibid, at pp. 479-480.
49
Principles of Administrative Law, supra note 25, p. 638.
50
DJM Brown & JM Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback Publishing, 2012)
[Judicial Review of Administrative Action in Canada] at 1:2100 and 1:2231.
51
Canadian Administrative Law, supra note 37 at p. 482.
52
[1980] 1 SCR 602 [Martineau].
53
Ibid, at para 73.
On an application for certiorari, if a decision is found to be illegal it will be quashed by the reviewing court,

as if it had never been made and need not be followed. However, the reviewing court may also sever the

order and quash only the offending part of the order, provided the balance of the order can stand on its

own.54 Alternatively, the reviewing court may simply vary the decision of the original tribunal. While an

order of certiorari may prevent the original tribunal from recommencing proceedings, it does not prevent

the original tribunal from continuing proceedings,55 for this reason an order of certiorari and prohibition

may be sought together to quash the decision made and prevent further acts in excess of the tribunals

jurisdiction.56

Whereas certiorari seeks to challenge a decision that has already been made, prohibition prevents an

administrative tribunal from proceeding before an order has been made. However, prohibition can only be

granted when there remains an act to be done or an order to be made; thus the timing of an application

for prohibition is important because the order sought may be moot or jurisdiction may have accrued to the

tribunal by the time of the hearing.57

Prohibition is available to review administrative proceedings on a jurisdictional basis, and it also applies to

applications involving a breach of the duty of fairness.58 Further, as Justice Cromwell (as he was then)

noted on behalf of the Nova Scotia Court of Appeal in Psychologist Y v Nova Scotia (Board of

Examiners in Psychology):59

Prohibition is a drastic remedy. It is to be used only when a tribunal has no authority to

undertake (or to continue with) the matter before it. Unless a lack of jurisdiction or a
denial of natural justice is clear on the record, prohibition is also a discretionary remedy.
As Sara Blake says in her text, Administrative Law in Canada, [citation omitted, supra
note 44], it may be refused if the existence of jurisdiction is debatable or turns on findings
of fact that have yet to be made. It must be clear beyond reasonable doubt she writes,
that the tribunal lacks authority to proceed. 60

54
Administrative Law in Canada, supra note 44 at p. 228.
55
Canadian Administrative Law, supra note 37 at p. 483.
56
Ibid, at p. 487.
57
Ibid, at p. 486.
58
Judicial Review of Administrative Action in Canada, supra note 50 at 1:2100.
59
[2005] NSCA 116, see for example Nagalingam v Canada (Minister of Public Safety & Emergency Preparedness), [2012] FC 362.
60
Ibid, at para. 21.
The Court in Psychologist Y went on to quote Administrative Law61 as follows:

540. Even in the domain of jurisdictional error and procedural fairness obligations, there
is now a strong tendency to allow a statutory decision-maker the opportunity to make a
preliminary assessment of the issues. If the decision-maker has the legal capacity to
consider a challenge to its jurisdiction or to determine the extent of procedural
entitlements, the courts generally refrain from entertaining an application for prohibition
until the tribunal either declines to consider the matter or actually deals with it. Until then
the application is premature.62 [Emphasis in original citation]

Mandamus

The writ of mandamus compels the performance of a public duty.63 Mandamus is not available to enforce

policy objectives or contractual rights64 and, generally, mandamus is not available when the performance

sought is within the discretionary power of the administrative tribunal. As such, since most administrative

tribunals have empowering legislation that affords the tribunal some exercise of discretion, mandamus is

rarely available.65

One of the leading decisions on mandamus is the decision of the Ontario Court of Appeal in Karavos v

Toronto (City),66 where the Court said that before mandamus can be granted:

1. The applicant must demonstrate a clear, legal right to have the thing sought by it
done, and done in the manner and by the person sought to be coerced;

2. The duty owed to the applicant must be due and incumbent upon the officer at the time
of seeking the relief;

3. The duty must be purely ministerial in nature, i.e. plainly incumbent upon an officer by
operation of law or by virtue of his office, and concerning which he possesses no
discretionary powers; and

4. There must be a demand and refusal to perform the act which the applicant seeks to
have ordered.67

61
Supra, note 1.
62
Supra note 60 at para. 23.
63
Dolan v Ontario (Civilian Commission on Police Services), 2011 ONSC 1376 [Dolan] at para 71.
64
Administrative Law in Canada, supra note 44 at p. 232.
65
Canadian Administrative Law, supra note 37 at p. 484.
66
[1948] 3 D.L.R. 294 (Ont. C.A.).
As noted above, mandamus is generally not available when the order sought is within the discretion of the

tribunal. In this regard, the Federal Court in Apotex Inc. v Merck & Co., 68 articulated the considerations

on an application for mandamus in discretionary circumstances as follows:

1. in exercising discretion, the decision maker must not act in a manner which can be
characterized as unfair, oppressive, or demonstrate flagrant impropriety or bad
faith;

2. mandamus is unavailable if the decision makers discretion is characterized as being

unqualified, absolute, permissive or unfettered;

3. in the exercise of a fettered discretion, the decision maker must act upon relevant,
rather than irrelevant considerations;

4. mandamus is available to compel the exercise of a fettered discretion in a particular

way; and

5. mandamus is only available when the decision makers discretion is spent, i.e. the
applicant has a vested right to the performance of the duty.69

Finally, the writ of mandamus is not available as an interim remedy, and the courts have granted

mandamus cautiously due to its coercive nature.70

Habeas Corpus

Perhaps the most famous prerogative remedy is habeas corpus, which challenges the detention of an

individual. 71 Traditionally a writ that was largely applied in criminal law, the growth of the scope of

administrative proceedings has increased the possibility of the writ of habeas corpus being sought in

other areas, particularly immigration and detention, prisons and parole, child welfare, and mental health

matters. 72 Habeas corpus is also available in Ontario, Prince Edward Island and New Brunswick

67
Ibid, at para 1. See also Dolan, supra note 62 at para 72.
68
[1993] CanLII 3004 (FCA).
69
Ibid, at para 45.
70
Judicial Review of Administrative Action in Canada, supra note 50 at 1:3100, see also for example, Great Lakes United v Canada
(Minister of the Environment), [2010] 2 FCR 515.
71
Principles of Administrative Law, supra note 25 at p. 596.
72
Canadian Administrative Law, supra note 37 at p. 487.
pursuant to the local Habeas Corpus Act,73 and has been incorporated into sections 9 and 10(c) of the

Canadian Charter of Rights and Freedoms74 as follows:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention:

...

to have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.

An application for habeas corpus may only be brought when a person is actually detained, although their

authority for bringing the application may not be required.75 Once the application is commenced, the

burden is on the authority or party responsible for the detention, to establish that the detention was

lawful.76

An application for habeas corpus is often accompanied by an application for certiorari, to invite the

reviewing court to examine both the basis for the detention and the statutory authority for the order. As

the Supreme Court of Canada noted in R. v Miller, certiorari is important, if not essential, to the

effectiveness of habeas corpus.77

Quo Warranto

Finally, the remedy of quo warranto challenges the authority or right of a person who occupies a public

office. The remedy is rarely used, likely because of other remedies available. The leading case

regarding quo warranto is Jock v Canada (Minister of Indian and Northern Affairs),78 where the Federal

Court articulated the factors the court should consider when granting quo warranto as follows:

1. The office in question must be a public office;

73
RSO 1990, c. H.1.; RSPEI, 1988, c. H-1; and RSNB 1973, c.H-1, respectively.
74
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK),
1982, c 11 [Charter].
75
Canadian Administrative Law, supra note 37 at p. 487.
76
Ibid.
77
[1985] S.C.J. No. 79 at para 14.
78
Jock v Canada, [1991] 2 FC 355.
 2. The person challenged must have already taken office, a mere claim to the office is
not enough;

3. The office in question must have been created by the Crown, a Royal Charter, or by
an act of Parliament;

4. The office cannot be that of a deputy or servant, who can be terminated at will;

5. An applicant will be denied a remedy if they have acquiesced respecting the

[individuals] taking of office or otherwise delayed in bringing the application;

6. The applicant must have a genuine interest in the proceedings;

7. The standing of the applicant;

8. The reasonableness of the length of time elapsed since the election;

9. The appropriateness of requiring the applicant to exhaust all internal relief avenues;

10. Whether the onus should be on the applicant or respondent to prove his or her case;
and

11. Whether the remedy may be granted independent of any other remedy.79

(b) Declaration and Injunction

As noted above, the JRPA also provides traditional private law remedies by way of declaratory or

injunctive relief. A declaration is a flexible remedy that serves to clarify the interpretation of a legal power,

right, or obligation prescribed by statute.80 Declaration may be sought when other relief is unavailable in

the circumstances.81 The Supreme Court of Canada has stated in Solosky v R82 that:

11. Declaratory relief is a remedy neither constrained by form nor bounded by

substantive content, which avails persons sharing a legal relationship, in respect of which
a real issue concerning the relative interests of each has been raised and falls to be
determined.

12. The principles which guide the court in exercising jurisdiction to grant declarations
have been stated time and again:

79
Ibid, at para 49.
80
Canadian Administrative Law, supra note 37 at 236.
81
Administrative Law in Canada, supra note 44 at p. 236.
82
[1980] 1 SCR 821 [Solosky].
 The question must be a real and not a theoretical question; the person raising it
must have a real interest to raise it; he must be able to secure a proper
contradictor, that is to say, someone presently existing who has a true interest to
oppose the declaration sought.83

Declaratory relief may be granted alone or in combination with other remedies, including damages or an

injunction. However, in order to preserve judicial resources, the courts will not grant a declaration where it

will serve little or no practical purpose or raise a matter of only hypothetical interest.84 Accordingly, a

declaratory order is final in nature and will not be made on an interlocutory application.85

An injunction is similar to the prerogative writs of mandamus and prohibition insofar as it is an order of the

court requiring a person to do or abstain from doing something.86 The court may award an injunction on a

final or an interlocutory basis. A final injunction is issued to protect an established legal right.87 To obtain

an injunction, the applicant must meet the three-part test as set out by the Supreme Court of Canada in

the well-established decision RJR MacDonald Inc. v Canada (Attorney General),88 specifically:

1. the application must disclose a prima facie case, i.e. show that there is a serious
question to be tried;

2. the application must show that the moving party will suffer irreparable harm if the
injunction is not granted; and

3. the balance of convenience favours granting the injunction.89

As a general principle, and except in respect of matters under the Charter, an injunction will not be

granted against the Crown.90 However, the scope of the Crowns immunity and its application to Crown

agents is unclear.91

83
Ibid, at paras 11-12.
84
Cheslatta Carrier Nation v British Columbia, 2000 BCCA 539, at para. 13.
85
Administrative Law in Canada, supra note 44 at p. 237.
86
Judicial Review of Administrative Action in Canada, supra note 48 at 1:8100.
87
Ibid, at 1:8200.
88
[1994] 1 SCR 311.
89
Ibid, at para 40. See also W. (W.) v Lakefield College School, 2012 ONSC 577 at para. 51.
90
Administrative Law in Canada, supra note 44 at p. 200, note 170.
91
Judicial Review of Administrative Action in Canada, supra note 50 at 1:8500.
(c) Damages and Costs

There are certain administrative actions that may give rise to what would traditionally be a private law

cause of action for which damages could be sought including on the basis that the administrative action in

question lacked specific statutory authority.

While a tribunal may not be liable for libel or slander in respect of comments or findings made in its

reasons, 92 possible claims include the tort of misfeasance of public office; 93 damages for negligent

performance of operational duties of servants;94 if the tribunal or entity has the power to contract, it may

be liable for damages for breach of contract;95 and claims for losses associated with the order, such as

lost wages or benefits.96 In Cooper v Wandsworth Board of Works, a claim was brought for damages

when a partially built house was torn down pursuant to statutory authority, which was challenged on the

basis that the decision failed to comply with the principles of natural justice.97

Further, the legal costs associated with an application for judicial review can be significant. In general in

Ontario, the successful party is entitled to an award of costs, which includes legal fees and

disbursements, on a partial indemnity basis. Whether or not an administrative tribunal is able to award

costs depends on the language of its enabling statute. In many cases, the tribunal may award costs,

including the costs of investigating and prosecuting the matter.98

On judicial review, a reviewing court may award the successful party its costs of the court proceeding, but

not the administrative proceeding below. 99 Generally, the court has discretion to award costs on a

solicitor-client or substantial indemnity scale in circumstances where there has been reprehensible or

92
Administrative Law in Canada, supra note 44 at p. 237-238, and see for example, Morier v Rivard, [1985] S.C.J. No. 81; Stark v
Auerbach, [1979] B.C.J.
93
See for example, Odhavji Estate v Woodhouse, [2003] S.C.J. No 74; Roncarelli v Duplessis, [1959] S.C.J. No 1.
94
See for example, Ingles v Tutkaluk Construction, [2000] S.C.J. No. 13; and Fullowka v Pinkertons of Canada Ltd. [2010] S.C.J.
No. 5.
95
See for example, B.G. Ranches v Manitoba (Agricultural Lands Protection Board), [1983] M.J. No 72.
96
Canadian Administrative Law, supra note 37 at p. 484; see also Knight v Indian Head, [1990] S.C.J. No 36; Brown v Waterloo
(Region) Commission of Police, [1983] O.J. No. 315 (Ont. CA).
97
Principles of Administrative Law, supra note 25 at p. 596, citing (1863) 14 CBNS 180 (Eng. C.P.).
98
See for example, s. 29(1) of the Chartered Accountants Act 2010, S.O. 2010 c.6, Schedule C which reads:
In addition to the fine or any other penalty imposed on conviction for an offence under section 28, the court may order that the
convicted person pay to the Institute some or all of the costs reasonably incurred by it in prosecuting the offence and in undertaking
any investigation related to the subject matter of the prosecution.
99
Administrative Law in Canada, supra note 44 at p. 206.
egregious conduct by one of the parties.100 Yet, the court is unlikely to make an order of costs when the

application raises novel legal questions or the issues are of substantial importance to the administration

of justice.101

Generally, a court will only award costs against a tribunal in exceptional circumstances where the

decision is quashed on judicial review,102 or where there is evidence of reprehensible, scandalous or

outrageous conduct by a party or flagrant violations of procedural fairness. 103 In York Advertising Ltd. v

Ontario (Human Rights Commission)104 the Divisional Court found that the tribunal made errors in excess

of its jurisdiction and, in awarding costs against the tribunal, it noted as follows:

We recognize that it is only in very rare circumstances that this Court should award costs
against a statutory tribunal. It is not sufficient, to justify making such an award, that the
tribunal be found only to have acted in error or beyond its jurisdiction. Rather, there must
be some unusual quality about the conduct of the tribunal that requires us to invoke our
jurisdiction to make such an award in order to achieve a result that is just.105

In Grochowski v Association of Architects (Alberta),106 the Alberta Court of Appeal awarded costs of the

appeal against the Council of the Association of Architects, on a solicitor-client scale, after the tribunal

made findings which the Court of Appeal found were clearly outside the tribunals statutory authority and

in respect of one matter with which the appellant was not even charged. In reaching its decision on costs,

the Court said the findings of the tribunal fly in the face of the whole idea of procedural fairness.107

The Role of Discretion

A final point to consider is that the relief sought on an application for judicial review is often discretionary.

Section 2(5) of the JRPA stipulates that the court has the discretion to refuse to grant any relief sought on

100
Baker, supra note 2 at para 77.
101
Doern v British Columbia (Police Complaint Commissioner), 2001 BCCA 446 [Doern] at para. 69. But note the Court in Doern
ordered costs of an intervener against the Attorney General, not because the Attorney General did anything warranting an order of
costs against it, but because it had access to public finds for the purpose of paying these costs at paras 69-75. See also Greater
Niagara Transit Commission v A.T.U., Local 1582 (1987), 61 OR (2d) 565 at para 71.
102
See for example, Business Watch International Inc. v Alberta (Information & Privacy Commissioner), 2009 ABQB 79, at paras 12-
17.
103
Administrative Law in Canada, supra note 44 at p. 206; see also, Baker, supra note 2 at para 77.
104
(2005), 204 OAC 297.
105
Ibid, at para 2.
106
38 Admin LR (2d) 132.
107
Ibid, at para 9-10.
an application for judicial review.108 In that regard, there are five common grounds on which a court may

exercise its discretion in refusing an application for judicial review, they are as follows:

1. the application for judicial review is premature and/or commenced before the tribunals
proceedings have concluded;109

2. the applicant has not exhausted other remedies available, such as rights of appeal,
except in applications for a writ of habeas corpus;110

3. the remedy sought would have no practical effect, i.e. the issue is moot;111

4. the applicant has delayed, without explanation, the bringing of the application for
judicial review;112 and

5. the applicant does not come to court with clean hands. 113

108
JPRA, supra, note 13, s. 5(2).
109
Administrative Law in Canada, supra note 44 at p. 239.
110
Ibid, at p. 242.
111
Ibid, see also Principles of Administrative Law, supra note 25 at p. 596.
112
Ibid, and see for example, Dolan, supra note 62, where the Court discussed the Divisional Courts finding in O.P.S.E.U. v Ontario
(Ministry of Labour), [2001] O.L.R.B. Rep. 549 that a delay of six months or more in commencement of the application could warrant
dismissal of the application for judicial review, at para 48.
113
Administrative Law in Canada, supra note 44 at p. 244 and Principles of Administrative Law, supra note 25 at p. 596.
Conclusion
Applications for judicial review are substantively complex proceedings. But that is only part of the story.

A major challenge with applications for judicial review, as with all litigation, is managing the expectations

of and communicating with the client. This may include discussing whether a decision of an

administrative body warrants an application for judicial review, and, if so, what the basis for the

application would be and what relief would be sought. In addition, counsel should also consider what, if

any, possible grounds could trigger the exercise of the courts discretion to refuse the relief sought. This

involves taking a critical look at the nature of the previous proceedings and the conduct of ones client or

potential client. Finally, the client must be advised of the potential costs exposure he or she faces in

bringing the application.

LawPro provides excellent resources for lawyers to assist them with client management. LawPros

Communication Tips for Litigators114 highlights facts to provide a client to manage client expectations

including: that litigation is slow, expensive and that one could lose no matter how strong the case appears

at the outset.

LawPros tips also point out some of the communication based claims that lawyers face including:115

failure to warn a client that they may lose a judicial review or other proceeding, failure to warn clients that

they could face cost orders if they lose and the failure to seek and/or follow instructions provided by the

client. Good practice management not only prevents claims but develops the client trust and

communication that is important to achieving substantive results.

114
www.practicepro.ca/LawPromag/Communication_tips_for_litigators.pdf
115
www.practicepro.ca/LawPromag/Communication_tips_for_litigators.pdf