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Judicial Review (JR-2)
2. JR GROUNDS
(a) Overview
A judicial review (JR) 'ground' is simply the basis upon which a JR, when brought, might be successful.
Historically, judicial reviews (JR) could be described as being court challenges to administrative actions (which include inactions) taken by government and it's authorities or agents. That description is still broadly accurate, but is misleading since most JR law is now dominated by two modern realities:- most JRs challenge decisions by administrative tribunals [which are statute-created hearing bodies, akin to courts - ergo JRPA-defined "statutory powers of decision", which are governed by the Statutory Powers Procedure Act (SPPA), see below]; and
- many of these tribunal decisions themselves have distinct statute-created appeal bodies which - in almost all cases - should be pursued before any JR is.
Still important though is that pure administrative 'actions' - which lack any substantial preceding hearing process - may also be JR'd, though again these are numerically in the minority. These, for the most part [excepting rarely-made non-court ex parte 'orders' and delegated rule-making powers (the latter separately dealt with at the Delegated Legislation topic)] comprise the bulk of JRPA-defined "statutory powers".
Further, judicial reviewing 'inactions' (which are even rarer) typically involve a prior practical request by the public to the governme nt entity to 'do' the action, and thus bring the situation closer to that of a 'hearing decision' (ie. a request and a refusal) - although lacking any decision-body or formal rules. You will see this tension arise where the court is faced with deciding whether the 'not-to-act' decision either had a 'hearing', should have had one - or both.
These 'decisions' and 'actions/inactions' (and their propriety) - form the primary potential 'grounds' of judicial review. They can be both 'procedural' (in which case they usually attract the doctrine 'procedural fairness') or 'substantive' (ie. 'rights'-related).
(b) Statutory Powers
General
'Statutory powers' (SPs) - of which the most common form are 'statutory powers of decision' (SPDs) - are a major source of JR grounds which of course draw their necessary public or 'administrative' aspect from statutes (ie. legislation). This makes their determination typically easy - that is, authority for the act or decision will almost always be set out - either directly or indirectly in a statute - somewhere.
But another feature of 'statutory powers' (again, especially SPDs) is that - being created by statute - the legislature will almost always have considered (in the course of legislative drafting) the creation of an 'appeal' right to challenge the act or decision. The JR doctrine of 'exhaustion' [which see below] almost always requires that anyone challenging a statutory power must first 'exhaust' all available appeal rights (and appeals can be both before tribunals, the courts - or both) before the court will consider a JR. And when that is done, the doctrines of stare decisis or issue estoppel will typically render any further JR activity redundant.
While JRPA s.2(1) provides that "the court may, despite any right of appeal, by order grant any relief" (that is, JR relief) the practical reality is that one should almost always pursue available appeals (though the recent Yatar line of cases points out when a JR may be useful, despite the availability of an appeal) [see the sub-topic Review - Appeal-JR Combined (Yatar)].
These above issues are unique to the JR of 'statutory powers' [JRPA s.2(1)1] - and distinct from the JR using it's 'prerogative writ' jurisdiction [JRPA s.2(1)1]. This latter JR authority is addressed in the next-following discussion of the 'public-private' distinction.
Statutory Powers
While the category of 'statutory powers' are technically-larger that the sub-set of 'statutory powers of decision', the latter are numerically predominant - as thus they receive the greater attention. Properly though, the category of "statutory powers", includes 'powers or rights':- to make subordinate (aka delegated) legislation ("regulation, rule, by-law or order");
- to exercise a statutory powers of decision (SPDs) (already mentioned) make a decision respecting:
- "the legal rights, powers, privileges, immunities, duties or liabilities of any person or party", or
- "the eligibility of any person or party to receive ... a benefit or licence"
- to require of anyone "to do or to refrain from doing any act or thing" (mandatory or prohibitory orders);
- to do "any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party" (rights-overriding actions).
Statutory Powers - Introduction
JR Cases - Statutory Powers - General
JRPA s.1 "Definitions" (licence)
JRPA s.1 "Definitions" (statutory power)
JRPA s.1 "Definitions" (statutory power of decision)
Subordinate (Delegated) Legislation
Judicial reviews can apply to issues of subordinate (aka delegated) legislation [commonly whether a Regulation or other statutory instrument (like a rule, by-law or order) is ultra vires (beyond the jurisdiction of) it's parent statute]. These issues are more substantially addressed in the separate Delegated Legislation topic.
JR Cases - Statutory Powers of Decision (SPD) - Delegated
JR Cases - Against Rules
SPPA s.27 Rules, etc., available to public
Statutory Powers of Decision (SPD) and the SPPA
The JRPA [s.1] defines a 'statutory powers of decision' (SPD) as follows:“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not, SPDs are so dominant in JR (and for that matter, in appellate administrative law as well) that they have their own Ontario statute further addressing them - the Statutory Powers Procedure Act (SPPA) - which acts (to some extent) as a sort of 'minimum standards' to ensure that procedural fairness is addressed in SPD proceedings. The SPPA pivots centrally on the near-identical statutory definitions of "statutory power of decision" set out in both Acts [JRPA s.1; SPPA s.1(1)].
In day-to-day legal practice, the majority of JR cases that the courts see involve SPDs ('statutory powers of decision') - which involve various province-wide tribunals (there are about 50 in Ontario), municipalities (about 444 in Ontario) and their 'local boards' [Municipal Affairs Act, s.1 (definitions)], and sundry other bodies or even single-person appointments - all of which involve adjudicative decisions. These administrative SPD proceedings are almost always governed by the SPPA.
Because of this frequency of interaction, below I set out key SPPA provisions for convenient reference.
SPPA s.1 "Definitions" (statutory power of decision)
SPPA s.1 "Definitions" (tribunal)
SPPA s.3(1) Application of Act
SPPA s.3(2) Where Act does not apply
SPPA s.32 Conflict
The Isthatlegal website has it's own Statutory Powers Procedure Act (Ontario) topic, associated with the Administrative topic.
JR - Statutory Powers of Decision (+)
(c) Prerogative Remedies (Public versus Private)
Distinct altogether from the 'statutory powers' grounds of JR (above), are the 'prerogative writ' grounds of JR [ie. those under the authority of JRPA s.2(1)1]. It is with these antiquated English common law 'grounds' - ie. the old latin doctrines of "mandamus, prohibition or certiorari" and more - that the 'public-private' distinction becomes central. IMHO it's arguable that Ontario has essentially merged these several prerogative remedies grounds of JR into this single 'public-private' dichotomy [JRPA s.7 'Summary disposition of mandamus, etc.'].
In my view, the courts have largely let these fine remedial distinctions fall by the wayside, and treat most JR cases under the broad de facto category of 'certiorari' (latin for "to be made more certain"). When an administrative act or decision is breached 'by way of certiorari', this results in the decision being 'quashed' (ie. cancelled) - and then either remitted below for re-hearing (in full or part), or by the court itself substituting it's own decision. One rarely sees any discussion of old prerogative writ remedies, nor of declaratory or injunctive remedies -- it's mostly just 'quash' and then logically sort-out.
JR Cases - Public v Private (+)
JR Cases - Public v Private - Exceptions
(d) Procedural Fairness
Both the above two ground categories of 'statutory powers' [b], and the 'prerogative writs' [c] (ie. the public-private dichotomy), are both anticipated for in JRPA s.2(1). However it is uncommon that a JR does not also include a common law 'procedural fairness' argument, if not several. This doctrine is roughly 50 years old, and at that time was drawn from the common law 'natural justice' doctrine - which reached (and still does) into the very fundamentals of accepted legal process.
Now, with the expansion of widespread litigation into the administrative realm [ie. issues heard by tribunals, and not courts (at least initially)], what is now referred to as 'procedural fairness' (or more commonly, 'fairness') is concerned essentially with whether the JR applicant [Pless v. Canada (Attorney General) (Fed CA, 2026), para 9]:... knew the case he had to meet, had an opportunity to respond and had an impartial decision maker consider his case fully and fairly: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at para. 41. In short, it's all about the fairness of 'hearings', or - absent an acknowledged formal hearing - the processes that preceded and led to the material decision or action - which can be hugely varied.
Since it's origins, 'fairness' has grown inexorably and now forms it's own separate Isthatlegal Procedural Fairness topic. Indeed, I now regularly find - in non-administrative (ie. civil, family, criminal) cases - issues that used to be categorized as ones of 'natural justice' now labelled as issues of 'procedural fairness' - which, given the historical context of the terms, is a seismic shift in legal terminology.
(e) 'JR-Justiciability'
'JR-justiciability' is a term of my own making. The broader term of 'justiciability' refers to when an issue can (or can't) be judicially-adjudicated (ie. 'decided in court'). So this section addresses when an issue can (or can't) be judicially-adjudicated by way of judical review - thus the term 'JR-justiciable'. And of course - if a matter is non-justiciable - it cannot 'ground' a JR.
As an example of 'non-JR-justiciability', recall from the above discussions that many SPDs are subject to statutory appeal rights, and thus - under the doctrine of 'exhaustion' (see Ch.3 'JR Procedures') - are barred (or limited, as in the case where appeals are limited to 'questions of law') from being JR-justiciable.
As such, many instances of 'JR-justiciability' occur in the residual administrative categories of: subordinate legislation, mandatory or prohibitory orders, rights-overriding actions [JRPA s.1 defn of "statutory powers", 2(1)2] - and the prerogative writ remedies (which are mostly governed by the public-private dichotomy) [JRPA s.2(1)1].
But, even if your matter is potentially JR-justiciable by falling into one of these categories (or otherwise), it can be nonetheless fall into a further 'JR-immunity' (eg. matters that are political, advisory, investigative or policy) - and thus being de facto non-JR-justiciable. These JR-immunity (again, my term) categories are considered by judges in the case links below.
JR-Justiciability
Generally
JR Cases - Justiciability (+)
Specific Issues Considered
JR Cases - Decisions
JR Cases - Advisory Roles (+)
JR Cases - Political Issues
JR Cases - Reasons
JR Cases - Superior Court Decisions
JR Cases - Academic
JR Cases - Municipal
JR Cases - Charter-Constitutional
JR Cases - Policy
JR Cases - Investigation
Small Claims Court - Judicial Review
JR Cases - Interlocutory Administrative Orders
JR Cases - Public Procurement
JR Cases - Contracts
JR Cases - Criminal
JR Cases - Complaints
JRPA 2(1) Applications for judicial review
(f) Privative Clauses
Whether a matter is 'justiciable' refers to matters that the courts may adjudicate on, and those that they may not - which of course bears on whether they may act as a ground of JR. 'Privative clauses' are statutory provisions that attempt (but usually fail) to bar JR with respect to specified matters, and thus they are statutory attempts to bar JR-justiciability. This may seem to be a counter-intuitive limit in a democracy, but it clearly exists.
'Privative clauses' are not the only illustration of this oddity of our legal system, but they are the most obvious. Their existence crops up periodically like a chronic sore on an otherwise apparently sound body politic. They are a manifestation of the power struggle between the judiciary and the legislature.
Other related 'justiciability' limits are those of overtly political matters [see JR Cases - Political Issues and Cabinet (Ont) Cases - Justiciability]. 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 weaker '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.
An example of a privative clause 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 OLRB decisions are subject to almost daily judicial reviews with the courts simply ignoring the privative clause.
Privative Clauses (+)
(g) Errors
If there is any obvious grounds of a JR, you would think that it be an 'error of law' - but even that is being challenged in modern JR law. The recent authoritative administrative law case of Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019) has emphasized that the court's role in a JR does not amount to a "line-by-line treasure hunt for error" [para 102]. Indeed 'errors' - as such - play no role on the majority ruling in Vavilov - but they of course are still part of the 'bread and butter' of legal thinking, and of legal culture. Vavilov's diminishment of the role of 'errors' in JRs are plainly an aspect of it's assertion of 'reasonableness' as the standard by which JRs should be adjudicated.
'Reasonableness' results in the quite counter-intuitive doctrine that JR is not about 'fixing it' (ie. 'correctness'). That is, it's not about whether the lower decision-maker 'got it right' - but rather whether it 'did it right'. With Vavilov, the Supreme Court of Canada imposes the (IMHO) anti-rationalist position that the political balancing between the judiciary and the legislature is more important that rationality, despite the latter being the central aspect of integrity of thought - and the former only a transient feature of our particular government system.
This wholesale flight from 'error' analysis has left Canadian JR (and indeed, all 'review') law in a state of cognitive confusion - this where the line between 'errors', 'natural justice', 'procedural fairness' and what's 'unreasonable' (in the Vavilov-JR sense) are hopelessly intermingled.
To me it's obvious that these confused doctrines all center on the adequacy of a 'legal hearing' (with that term being 'writ large' to encompass non-tribunal decision-making), and we could just as well locate them together under the same doctrine. This (hopefully) is happening due to the legal culture's instinctive resort to 'Occam's Razor' thinking, and it's plain that 'procedural fairness' is the new centralizing doctrine.
That said - and despite Vavilov's efforts, 'errors' are still central to Ontario review (including JR) law (see below) and cannot be sensibly divorced from practical legal reasoning. 'Errors' as a ground of JR ain't going away anytime soon.
Review - Errors of Law
JRPA s.2(2) Error of law
JRPA s.2(3) Lack of evidence
(h) 'Irregularities'
While 'irregularities' (aka 'defects') are anticipated in the JRPA [s.3], this is done primarily to require that "if the court finds that no substantial wrong or miscarriage of justice has occurred, the court may refuse relief". Such minor matters are left to the SPPA [at s.28] which tolerates minor or technical errors, or - if that is not adequate - for the involved tribunal to make repairs [SPPA 21.1].
JR Cases - Irregularities [JRPA 3]
JRPA 3 Defects in form, technical irregularities
SPPA s.21.1 Correction of errors
SPPA s.28 Substantial compliance
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