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1. OVERVIEW
(a) Introduction
Private and Public Law Contrasted
Judicial reviews (JR) are specific court procedures directed at the determination and assignment of the rights of private parties (ie. private individuals, corporations, and associations) against governments and their sub-entities. As such, JR is a branch of public law.
As private law (which determines and assigns the rights of private parties amongst each other) operates in the substantive categories of contract, tort, restitution and more - judicial review operates in the hugely varied and ever-changing realm of 'statutory powers' (of which 'statutory powers of decision' are numerically predominant), administrative procedural fairness and more.
In some situations where the government is involved in regulating the relationship between private parties [eg. residential tenancies (RTA), auto insurance (SABS) and other statutory regimes (these are usually ones of statutory contractual modification)], JR can still be used to advance as a legal remedy - but this is only because of the involvement of a tribunal [eg. the Landlord and Tenant Board (LTB) for RTA, or the License Appeal Tribunal (LAT) for SABS]. Without this essential public involvement your legal remedies would typically lie in civil proceedings - grounded in such legal doctrines as contract, tort or restitution.
Remedies
While private law tends to operates in property and money remedies - public law (and thus judicial review) has evolved in relation to the growth in sophistication of government, and thus tends to operate in terms of 'rights' (vis-a-vis the larger statutory legal regimes). While these 'rights' often end up being expressed in money terms (eg. the dollar entitlements of an ODSP recipient, or the auto insurance claimant's benefits), they tend - legally - to be initially concerned with statutory status declarations (eg. ODSP's 'person with a disability', or the SABS claimant's categorical entitlements of 'minor injury' or 'catastrophic impairment').
Judicial Reviews and Appeals Contrasted
Judicial reviews and appeals can be quite similar in purpose and procedure. In one sense, the only distinction between the two procedures is that one's procedural entitlement to an appeal must be set out in a statute (all appeals, whether they be in tribunal or court forums, must be established in statute), and that one's procedural entitlement to a JR is generic - sort of a catch-all, default entitlement where no appeal exists.
In terms of practical litigation choices this 'election' between appeals and JRs is governed by the JR doctrine of 'exhaustion' [aka 'prematurity' and 'adequate alternative remedy (AAR)'] - ie. the general rule that the courts will decline to consider a judicial review if there are unused appeals (or for that matter: reconsiderations, or sometimes even parallel but separate forum proceedings) available for the same matter.
The Constitutional Basis of JR
So, while - under the exhaustion doctrine - JRs can be viewed as procedures of 'last resort', they are - as a matter of civil rights generally - essential procedures. Indeed, if the legislature started to abolish appeal rights wholesale (which it could do with it's control over statutes), judicial review (as our American friends are discovering) might be almost all that we would have left to combat the abusive intentions of an authoritarian government.
This privileged status of JRs is due to their constitutional grounding under s.96 of the Constitution Act, 1867 [BizTech v. Accreditation Canada (Div Ct, 2025), para 133]. Section 96 is a simple provision which requires the creation of judges of the Superior Courts (often called 's.96 courts'), but it has been read (thankfully) to justify the entire robust third branch ('judiciary') of our government structure - next to the legislature and the executive (cabinet).
Judicial review is the foundational procedure of the court's power, including it's authority over these other branches. But it has limits 'justiciability' limits), with which I deal next.
Justiciability, Privative Clauses and the 'Political'
Whether a matter is 'justiciable' refers to matters that the courts may adjudicate on - and those that they may not. This may seem to be a counter-intuitive limit in a democracy, but it clearly exists.
'Privative clauses' are the most obvious illustration of this oddity of our legal system, and their existence crops up periodically like a chronic sore on an otherwise apparently sound body politic. They are manifestation of the power struggle between the judiciary and the legislature. An example can be found in the Labour Relations Act, s.116 ['Board’s orders not subject to review'] which attempts (unsuccessfully) to bar JRs wrt OLRB orders ["(n)o decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court"]. Yet the OLRB are subject to almost daily judicial reviews with the courts simply ignoring it.
Privative clauses reflect one of the essential tensions of our democracy, as does the legislature's continued unwillingness to respect the constitutional reality of the court's have an essential role to play (imagine the US in the Trump era without courts!).
Another 'justiciability' limit is overtly political matters [http://www.isthatlegal.ca/index.php?name=cabinet.justiciability and http://www.isthatlegal.ca/index.php?name=JR.political]. The closer that an issue approaches the political realm the more hesitant the courts are to adjudicate it. Indeed, entire thrust of the recent authoritative Vavilov case (SCC, 2019) (with it's assertion of the weakened 'reasonableness' standard of review) is all about the courts respecting (unnecessarily in my view) the ability of the legislature to diminish the historical jurisdiction of the courts - another aspect of justiciability.
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 that law has been recently bolstered with the Yatar line of cases, and the court's institutional-logistical recognition (through express practice directions) to facilitate this 'joint appeal-JR' procedure. This 'refreshed' Yatar right gained particular utility from two other legal changes: the Vavilov case (which re-emphased the 'law/mixed fact and law/fact' standard of review division), and the legislature's too-often practice of limiting appeal rights to 'questions of law'.
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 for 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 '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.
(b) Basics
JR - Basics
JR - Constitutional Basis of JR
(c) Context
JR - Jurisdiction NEEDS REVIEW
JR - No Development of New Law in JR
JR - Criminal
JRPA s.11(1) References in other Acts, etc.
JRPA s.11(2) Proceedings under Habeas Corpus Act
(d) JRs are Discretionary
'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 - Discretion (+)
JRPA s.2(5) Power to refuse relief
(e) Practice
JR - Practice
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