Barrister and Solicitor
Legal Writing and Research
Judicial Review - Prerogative Writs
Strickland v Canada (A-G) (SCC, 2015)
In this case the Supreme Court of Canada discussed the discretionary nature of common law prerogative writs (eg certiorari, mandamus, prohibition, etc) in the context of Federal Court Act proceedings:
 Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief: see, e.g., D. J. Mullan, “The Discretionary Nature of Judicial Review”, in R. J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009 (2010), at p. 421; Harelkin v. University of Regina, 1979 CanLII 18 (SCC),  2 S.C.R. 561, at p. 575; D. P. Jones and A. S. de Villars, Principles of Administrative Law (6th ed. 2014), at pp. 686-87; Brown and Evans, at topic 3:1100. Declarations of right, whether sought in judicial review proceedings or in actions, are similarly a discretionary remedy: “. . . the broadest judicial discretion may be exercised in determining whether a case is one in which declaratory relief ought to be awarded . . .” (Dickson C.J. in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC),  2 S.C.R. 49, at p. 90, citing S. A. de Smith, Judicial Review of Administrative Action (4th ed. 1980), at p. 513).
 The discretionary nature of judicial review and declaratory relief is continued by the judicial review provisions of the Act. This is underlined both by the reference in s. 18 to the traditional prerogative writs and other administrative law remedies which have always been considered discretionary and by the use of permissive rather than mandatory language in relation to when relief may be granted. Section 18.1(3) provides that “[o]n an application for judicial review, the Federal Court may” make certain orders in the nature of those traditional remedies. This statutory language “preserves the traditionally discretionary nature of judicial review. As a result, judges of the Federal Court . . . have discretion in determining whether judicial review should be undertaken”: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC),  1 S.C.R. 3, at para. 31; TeleZone, at para. 56.
 One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative. The leading case is Harelkin, in which a student alleged that a university committee made a decision that violated his procedural rights. There was a right of appeal to the university’s senate, but instead of pursuing it, the student applied for judicial review. This Court held that the judge at first instance had erred in entertaining the judicial review application because he failed to exercise his discretion on relevant grounds: he did not consider whether the internal appeal process was an adequate alternative remedy that was capable of curing the denial of natural justice of which the student complained.
 The Court has applied similar reasoning in a number of cases to dismiss applications for judicial review. For example, in Matsqui, the Court upheld the decision of the Federal Court to decline to hear Canadian Pacific’s application for judicial review because it could have pursued an appeal procedure established by the Matsqui Band. In Canada (Auditor General), the Court refused judicial review to the Auditor General to challenge a denial of access to information because a political remedy — reporting to the House of Commons any refusals to comply with requests for information — was an adequate alternative remedy.
 The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as to justify a discretionary refusal to hear a judicial review application. These considerations include the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 (CanLII),  2 F.C.R. 332, at para. 31; Mullan, at pp. 430-31; Brown and Evans, at topics 3:2110 and 3:2330; Harelkin, at p. 588. In order for an alternative forum or remedy to be adequate, neither the process nor the remedy need be identical to those available on judicial review. As Brown and Evans put it, “in each context the reviewing court applies the same basic test: is the alternative remedy adequate in all the circumstances to address the applicant’s grievance?”: at topic 3:2100 (emphasis added).
 The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case: Matsqui, at paras. 36-37, citing Canada (Auditor General), at p. 96. Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis: Khosa, at para. 36; TeleZone, at para. 56. As Dickson C.J. put it on behalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant . . .” (Canada (Auditor General), at p. 96).
 This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue: see, e.g., Matsqui, at paras. 41-46; Harelkin, at p. 595. David Mullan captured the breadth of the inquiry well:
While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affected individuals against the imperatives of the process under review. In particular, the courts focus on the question of whether the application for relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes provided by that framework and the common law for challenging administrative action. Where the application is unnecessarily disruptive of normal processes . . . the courts will generally deny relief. [Emphasis added; p. 447.] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules. All relevant factors, considered in the context of the particular case, should be taken into account.