Judicial review in Canada

Defining Judicial Review

Judicial review refers to the authority of courts to evaluate the lawfulness of decisions made by government entities. Originating in the common law tradition, judicial review is embedded in the legal framework of Canada, allowing courts to intervene when governmental powers are exercised improperly or outside the bounds of legal authority. This process is a crucial mechanism for enforcing the rule of law, ensuring that government actions do not infringe on individual rights and freedoms.

Who Can Apply for Judicial Review?

In Canada, any individual or entity that is directly affected by a decision made by a governmental body—such as a regulatory agency, an administrative tribunal, or even another court—has the standing to apply for judicial review. This can include:

• Individuals who have been adversely impacted by a government decision (e.g., denied a permit or benefit).
• Organizations challenging regulatory decisions that affect their operations or interests.
• Businesses contesting government actions that impact their economic activities.

The threshold for standing is generally not high, as the courts aim to provide access to justice and allow affected parties to seek remedy for potential wrongs.

Grounds for Judicial Review

The court’s review typically examines three main grounds regarding the legitimacy of the contested decision:

1. Legality: The decision in question must be rooted in law and within the jurisdiction of the body that issued it. This means that the decision-maker must have the legal authority to make the decision and that the decision conforms to relevant legislation and legal principles.
2. Fairness: This ground assesses whether the decision-making process was conducted fairly. This may involve ensuring that all parties had an opportunity to present their case and that the decision-maker did not act in a biased or prejudicial manner.
3. Reasonableness: Courts assess whether the outcome of the decision is reasonable in light of the evidence presented. A decision should not be arbitrary; it must be based on a logical and rational basis. Courts exercise a standard of “reasonableness” in their review, meaning they respect nuanced administrative decisions unless they are patently unreasonable.

The Judicial Review Process

The judicial review process in Canada proceeds through several key stages:

1. Filing the Application: Affected parties must file a notice of application for judicial review, outlining the grounds on which they seek to challenge the decision. This application is typically made to the Federal Court or a provincial superior court, depending on the jurisdiction of the decision in question.
2. Preparation of Documentary Record: The applicant must compile and submit a comprehensive record of the proceedings from the decision-making body. This includes transcripts, documents, and any other relevant evidence that reflects the decision-making process.
3. Respondent’s Opposition: The government agency or body whose decision is being challenged is given an opportunity to respond to the application. They may file their own affidavits and legal submissions defending the legality and reasonableness of the decision.
4. Hearing: A hearing takes place before a judge or panel of judges, during which both parties present their arguments. The court reviews the evidence, assesses the legal arguments, and may call for additional information if necessary.
5. Court Decision: After evaluating the arguments and evidence, the court issues its decision, which may involve either upholding the original decision, quashing it, or remanding it for further consideration by the original decision-making body.

Possible Outcomes of Judicial Review

The court’s judgment in judicial review cases can lead to several potential outcomes:

• Rejection of the Request: If the court concludes that the decision was made in accordance with legal requirements, followed fair procedures, and was reasonable, the application for judicial review may be dismissed.
• Cancellation of the Decision: Should the court find that the decision violated principles of legality, fairness, or reasonableness, it may annul the decision, effectively rendering it void.
• Reconsideration: In cases where the court believes that a decision needs further deliberation or procedural adherence, it may send the matter back to the original decision-making body for reconsideration, providing directions on how to proceed appropriately.