What Is Judicial review in Canada?
In Canadian judicial review
is the process that allows courts to supervise administrative tribunals’ exercise of their statutory powers.
Judicial review of administrative action is only available for decisions made by a governmental or quasi-governmental authority.
In our highly regulated world, interaction with government bodies and agencies is inevitable. At the municipal, provincial and federal levels, administrative decision-makers have significant power over key approvals, licenses and policies, and their decisions can have a serious impact on businesses and individuals.
However, their powers are not without limits. Judicial review is the process by which affected parties in Canada can turn to the courts to review government action and determine whether it meets legal and constitutional standards.
Although administrative law in Canada is conceptually similar to that in the United States, the source, scope and focus of judicial review in the two countries differ in several important ways.
Canadian judicial review – key differences
- Administrative law in Canada is generally focused on administrative adjudication — challenging the exercise of statutory discretion as applied in a particular case.
This is in contrast to the U.S., where administrative law has largely developed around challenges to rules and regulations adopted by federal agencies.
- Both the provincial and federal courts hear applications for judicial review. The Federal Court hears most applications from decision-makers that get their powers from federal statutes and orders.
In contrast to the U.S. district and circuit court system, the Canadian federal court system has one Federal Court and one Federal Court of Appeal that hears cases on federal matters for all the provinces. The decisions of all other administrative bodies are reviewable in the provincial courts.
- Judicial review in Canada is governed by a common law standard of review analysis that is continually being developed in the courts, unlike in the U.S., where the Administrative Procedure Act governs the scope and standard of federal judicial review.
- There is no Canadian equivalent to the U.S. Administrative Procedures Act, which sets out uniform procedural standards that apply broadly to federal agencies.
When to consider judicial review
Once the proceeding has concluded and a final decision is rendered, it is time to start considering judicial review. In the Federal Court, an application for judicial review must be brought within 30 days. Most provincial courts also have statutory time limits for bringing a judicial review.
In Ontario, British Columbia and Manitoba, which do not have time limits, a judicial review should be brought within a reasonable time, which depends on the circumstances. Missing a time limit or proceeding with undue delay may result in dismissal of the application.
Remedies
If you are thinking about bringing an application for judicial review, first consider what you hope to get out of the proceeding.
The usual remedy on a successful judicial review application is to quash the decision and remit it to the government body to reconsider in accordance with the court’s guidance.
Depending on the circumstances, a party can also seek other types of relief against the government, such as a declaration of their rights or injunction restraining the conduct.
Conclusion
have produced with the Canadian courts typically taking a more deferential approach to the decisions of governmental bodies and agencies.
However, the government is still subject to clear procedural and substantive constraints, and judicial review can be an effective way to overturn problematic decisions and policies. Understanding these administrative law rights and remedies is crucial to effectively navigating the Canadian regulatory landscape.
