Simon's Legal Resources

Judicial Review (JR-1)

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1. OVERVIEW

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(a) General

Here I locate some fundamentals of JR law.

JR Cases - Basics
JR Cases - Constitutional Basis of JR
JR Cases - No Development of New Law in JR

JRPA s.11(1) References in other Acts, etc.
JRPA s.11(2) Proceedings under Habeas Corpus Act

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(b) JRs are Discretionary

General

'Discretion' in any legal context refers to the situation where the adjudicator (in JR it's always a judge) has the choice of whether to consider an issue, or to grant a remedy. The presence of discretion in a statute is usually indicated by the use of the term 'may', contrasted with the mandatory 'shall'.

The Isthatlegal website has it's own general Discretion topic.

JR Cases - Discretion (+)
JRPA s.2(5) Power to refuse relief

Yatar: Recent Changes to the Appeal-JR Relationship

For years the JRPA has given judges the discretion to hear JRs despite the existence of parallel appeal rights [JRPA s.2(1): "despite any right of appeal"], but courts have defaulted to denying it under the doctrine of 'exhaustion' [which see at Ch.3(b)].

Recently, with the growth of appeals that are limited to 'questions of law' (where the legislature tries to limit appeal of tribunal rulings) the issue arose of whether JRs could be raised on a default 'reasonableness' standard wrt issues of fact, and issues of mixed fact and law. That was resolved in the Yatar lines of cases.

In Yatar, the courts openly acknowledged - and endorsed as a matter of discretion (with express practice directions) a 'joint appeal-JR' procedure. Perhaps the most common recent use of this Yatar principle (as it was in Yatar) has been in Ontario auto insurance context where Divisional Court Licence Appeal Tribunal Act (LATA) s.11(1,6) appeals from SABS decisions are heard, but only on 'questions of law'. This left potential appellants with no review recourse to contest issues of fact - and mixed fact and law, which - if tolerated - would provide the legislature with another de facto form of privative control. But thankfully the effect of Yatar was to 'regularize' JR in such 'question of law' contexts, albeit in an awkward and cumbersome 'joint procedural' fashion.

Again - the effect of Yatar wasn't so much the making of new law, but the legal-cultural refreshing of something that should have (IMHO) been obvious given the JRPA s.2(1) point made above.

Review - Yatar (Appeal-JR Combined) (scroll down)

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(c) Practice

'Practice' issues tend to be ones that you aren't taught in any law or paralegal course, but that if you don't know can cause you serious grief.

JR Cases - Practice

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