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2. JR GROUNDS
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(a) Overview
JRs can be mostly defined as being 'court procedures which review administrative procedures'. So, when I speak of 'JR Grounds' (ie. 'grounds' of proceeding with a JR) the substance of consideration can (usually) equally-well be characterized as the subject of 'administrative procedures'. For instance, take the ubiquitous legal issue of 'notice' (ie. notice to a party). When considered in the purely administrative context 'notice' is clearly an 'administrative procedure' - but it can also, when an issue arises wrt it's adequacy (as it would when an issue of procedural fairness arises), quite fairly be characterized as a 'JR Ground'. The point is that sometimes to same issue can have different roles in different contexts, here firstly the 'administrative' and then the 'judicial review' contexts.
The exceptions to this general rule - ie. where JRs are not about administrative procedures - are (roughly) on issues of constitution, tribunal boundaries, jurisdiction and ultra vires delegated legislation.
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(b) Statutory Powers
General
'Statutory powers' (SPs) - of which the most common form are 'statutory powers of decision' (SPDs) - 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
Statutory Powers - Introduction
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).
JR - 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 it's parent statute). These issues are mostly addressed in the Delegated Legislation topic.
JR - Statutory Powers of Decision (SPD) - Delegated
. you need to clarify the JR of Rules
JR - 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 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 (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 (+)
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(c) Public versus Private
Distinct from the 'statutory powers' grounds of JR (above), it is with the 'prerogative writ' JRs [ie. those under the authority of JRPA s.2(1)1], that the 'public-private' distinction becomes central. Rather than wade it's way through antiquated English common law regarding these old latin doctrine (ie. "mandamus, prohibition or certiorari" and more), the Ontario courts has essentially merged these doctrine into this single 'public-private' dichotomy.
Simply put, 'public' acts or decisions are justiciable by means of JR ('JR-justiciable') - while 'private' ones are not.
Public v Private - Introduction
JR - Public v Private (+)
JR - Public v Private - Exceptions
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(d) Procedural Fairness
The single most-common category of JR grounds (and as well, of administrative appellate grounds) is that of 'procedural fairness'. This doctrine is roughly 50 years old, and was at that time drawn from the common law 'natural justice' doctrine - which reached 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 simply, 'fairness') is concerned essentially with whether the JR applicant:... 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. [Pless v. Canada (Attorney General) (Fed CA, 2026), para 9]
In short, it's all about the fairness of 'hearings', or (absent a 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 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' - a seismic shift in legal terminology.
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(e) 'JR-Justiciability'
Comment
Generally, the term 'justiciability' refers to when an issue can (or can't) be judicially-adjudicated ('taken to 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').
JR law in Ontario is statutorily-governed by the Judicial Review Procedure Act (JRPA). As discussed above, central to Ontario JR are the long-standing JR remedies of "mandamus, prohibition or certiorari" (together, the 'prerogative writs') [JRPA s.2(1)1], and the JRPA-defined "statutory powers" (SPs) - which include the common "statutory powers of decision" (SPDs) [JRPA s.2(1)2].
Most SPDs are subject to statutory appeal rights, and thus - under the doctrine of 'exhaustion' - are either barred (or limited, as in the case where appeals are limited to 'questions of law') from being JR-justiciable. As such, most issues of JR-justiciability (ie. whether the matter can be judicially reviewed or not) 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 JR-justiciable by falling into one of these categories, it can be nonetheless fall into a further 'JR-immunity' (ie. matters that are political, advisory, investigative or policy) - and are sometimes JR-immune (ie. matters that are constitutional and academic). These exception categories are considered by judges in the case links below.
Further, JRs are closely-tied to the remedies that the law offers. The JRPA s.2(1)1 categories of "mandamus, prohibition or certiorari" are inherently remedial doctrines tied to the unique grounds of action that they embody, while JRPA s.2(1)2 'statutory powers' doctrine technically offers the remedies of 'declaration' or 'injunction' (which are remedial forms that also occur in non-JR fields).
However, IMHO 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-Justiciability
JR - Justiciability (+)
JRPA 2(1) Applications for judicial review
Exceptions to JR-Justiciability
These links address the justiciability (or not) of specific types and aspects of administrative activity.
JR - Against Decisions
JR - Not for Advisory Roles (+)
JR - Political Issues
JR - Not Against Reasons
JR - Not Applicable to Superior Court Decisions
JR - Academic
JR - Charter-Constitutional
JR - Policy
JR - Investigation
Privative Clauses
'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.
An example is located in the Labour Relations Act (LRA), where - at s.116 ['Board’s orders not subject to review'] - the court attempts to do precisely that. Yet, OLRB decisions are judicially-reviewed in Ontario Divisional Court in a near-weekly basis. This is because the courts view anti-JR privative clauses as being in violation of the constitution provision that governed the creation of the Superior Courts [Constitution Act, 1867, s.96].
Privative Clauses (+)
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(f) Errors
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 perhaps an over-emphasized consequence 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. This has resulted in unnecessary decentralization in legal review analysis with the same essential legal mistake being located variously as a 'breach of procedural fairness', a (good old) 'error' - or one of the now even-more inaccessible aspects of an 'unreasonable' administrative decision.
To me it's obvious that these confused doctrine 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' ain't going away anytime soon.
....
Anyway, while fairness and reasonableness are dealt with in their own categories elsewhere, I locate what we used to call 'errors' in the natural justice sense, here:
Review - Grounds
JRPA s.2(2) Error of law
JRPA s.2(3) Lack of evidence
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(g) '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].
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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