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3. JR PROCEDURES
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(a) Overview
JRs can be mostly defined as being 'court procedures which review administrative procedures'. So - in this area of law where administrative procedures mostly comprise the content of the 'grounds of JR' -
when I speak of 'JR Procedures' (ie. the procedures of conducting a JR) these are separate and distinct from administrative procedures.
Thus, this sub-topic of 'JR Procedures' addresses:
. the 'exhaustion' doctrine [whereby, if another procedure still remains to challenge the matter (classically an appeal),
. it will normally exclude JR], court 'JR routes' (which address the three different court routes by which a JR may be advanced), and
. the prescribed court 'JR rules' (R37-39 and 68 of the Rules of Civil Procedure).
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(b) 'Exhaustion' Doctrine
Judicial review (JR) is a discretionary procedure [see 'Overview - JRs are Discretionary' (above)], almost one of 'last resort'. Since JR is essentially an administrative law remedy, this dictates the presumption that all purely administrative remedies should be 'exhausted' before an applicant can seek a JR (ie. court) remedy - including any 'reconsiderations' (aka 'reviews') promulgated under SPPA s.21.2 ['Power to review'].
We can find 'administrative exhaustion' cases spread throughout CANLII under the ostensibly separate doctrines of: 'prematurity', 'adequate alternative remedy' (AAR), 'no interlocutory appeals/JR' and more. For 'prematurity' the leading case is Volochay v. College of Massage Therapists of Ontario (Ont CA, 2012)], and for AAR it's Strickland v. Canada (Attorney General) (SCC, 2015). The court in Strickland makes it clear that deciding what might be an 'adequate alternative remedy' case is not a task for using 'checklists' [para 43], but a truly discretionary matter of assessing the 'adequacy' (including the appropriateness) of the potential alternative administrative remedy.
So while a party can - and almost certainly will - cite similar case law, the related fact and practical situation will weigh very significantly in the decision. Case law on such Judicial Review - Prematurity Exceptions exists, though IMHO it has not adequately embraced the burden that this doctrine often places on many litigants (especially self-presenters and the non-rich) - this burden being in the form of significant financial, knowledge and stress difficulties that this places on them.
Relevant (but generally considered separate) from this exhaustion doctrinal 'merger' is a line of cases (Yatar) which came into prominence in 2022 [ultimately resulting in Yatar (SCC, 2024)], where judicial review could be sought in conjunction (ie. jointly) with a statutorily-limited appeal (typically, where appellate jurisdiction is limited to 'questions of law' only, eg. RTA s.210). Yatar - like 'administrative exhaustion' - turned largely on JR being remedially-discretionary, under JRPA s.2(1 and 5).
Prematurity
JR - Prematurity (+)
JR - Prematurity Exceptions (+)
Adequate Alternative Remedy (AAR)
JR - Adequate Alternative Remedy (Strickland) (+)
Exhaustion Doctrine Merger?
Judicial Review - 'Exhaustion': A Prematurity-AAR Merger?
Administrative Exhaustion Doctrine and Yatar
JR - Administrative Exhaustion - Yatar
SPPA s.21.2(1) Power to review
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(c) Court JR Routes
Comment
There are three procedural forums (or routes) that a 'judicial review' may be effectively brought in. The first two - the primary s.6(1) JRPA Divisional Court route (the 'main option', under RCP 68), and the less-used s.6(2) JRPA Superior Court (the 'urgent option', under RCP 38) - are, procedurally, 'applications' under the Rules of Civil Procedure (RCP). The term 'application' has a specific procedural meaning in the RCP, in contrast to what are called 'actions'. Actions are what you likely know as 'lawsuits', the most common civil proceedings - typically a lawsuit for damages in contract or tort.
A third option is the very little-used, and [until the recent Skof v Bordeleau (Ont CA, 2020)] almost forgotten, s.8 JRPA Superior Court 'damages' route (the 'JR-damage option'), which is commenced by a Superior Court 'action' - although it may be converted to an application later.
An additional distinction to assist in clarifying these three forum options is that the first two options (which again are 'applications') all share the same JR-defining remedies, which are listed in JRPA 2(1)1 and 2]. These are the 'prerogative writs' [JRPA 2(1)1], and 'injunctions and declarations regarding statutory powers' [JRPA 2(1)2]. On the other hand, the JR-Damage option need only involve the latter remedy: the 'injunctions and declarations regarding statutory powers' [JRPA 2(1)2] and - of course, can claim damages.
Over-whelmingly, most JR proceedings are brought as non-urgent 'applications' [under JRPA s.6(1)]. The availability of the unusual s.8 'action' may come as a surprise to many readers - but it's a worthwhile discovery as it allows the combination of damage claims (indeed, all action remedies) with some JR remedies.
Main Option
Divisional Court 'Main' Application Option [JRPA 6(1)]
JRPA s.6(1) Application to Divisional Court
'Urgent' Option
Superior Court 'Urgent' Application Option [JRPA 6(2)]
'Urgent' Option JR Cases
JRPA s.6(2) Application to judge of Superior Court of Justice
JRPA s.6(3) Transfer to Divisional Court
Damages Action Option
Superior Court Action Damage Option [JRPA 8]
JR-Damage Cases
JRPA s.8 Summary disposition of actions
JRPA s.6(3) Transfer to Divisional Court
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(d) Court JR Rules
Comment
This subject addresses the applicable Rules of Civil Procedure application provisions [ie. R38 and 68] (but not the JRPA s.8 regular action damages forum provisions), which - as they are intermingled both between the court routes (ie. forums) options [see R68.02(2)], and themselves [see the immediately following 'Legal Application of R38(2) and R68' section] - can be confusing.
Explaining this with any clarity is not helped by the fact that the term "application" is used for two essential purposes - the first wrt to the 'application' procedure [distinct from an 'action' (aka a lawsuit), herein referred to as an 'application procedure'] - and the second wrt to which laws 'apply' to a matter (herein referred to as 'legal application').
Legal Application of R38(2) and R68
RCP - R38.01(2) Legal Application of R38
RCP - R68.02(1-2) Applicable Application Procedure
Commencement of JR
Notice of Application
JR - Notice of Application
JR - 'Pleadings'
RCP - R68.01(1) How JR Application Commenced
RCP - R38.04 Content of Notice
RCP - R38.05 Issuing of Notice (Prior Issuance)
RCP - R38.06 Service of Notice
JRPA 9(1) - Sufficiency of application
Place of Hearing
RCP - R38.03(1-1.1,) Place of Hearing
RCP - R68.01(2) Venue Transfer Where Not Filed at Regional Centre
Date of Hearing
RCP - R38.03(2-4) Date of Hearing
RCP - R68.03 Hearing Date in Divisional Court
Notice of Appearance
RCP - R38.07 Notice of Appearance
Abandoned Applications
RCP - R38.08 Abandoned Applications
Form
Form 68A
Stays Pending JR
Judicial Review - Stay Pending JR
SPPA s.25(1-2) Appeal operates as stay, exception
Summary Dismissal of JR
Quashing
JR - Quashing
Dismissal for Delay
JR - Dismissal for Delay
RCP - R68.06 Dismissal of JR for Delay
RCP - R68.07 Automatic Dismissal of JR by Registrar for Delay
Vexatious Proceedings
JR - Frivolous and Vexatious [RCP R2.1]
RCP - R38.13 Applications under s. 140 (3), Courts of Justice Act (Vexatious proceedings)
Motions
For the most part (some exceptions are noted), the procedures for motions within a judicial review are the same as for motions in general civil litigation [ie. for actions and (non-JR) applications], which see: Civil Litigation - Motions.
Interim Orders
JR - Motions [R37]
JRPA s.4 Interim order
Striking Documents [under R25.11]
RCP - R38.12 Striking out a Document
Perfection
Filings
JR - Factum
RCP - R68.04 Application Records and Factums
RCP - R68.05 Certificate of Perfection
Confirmation of Application
RCP - R38.09.1 Confirmation of Application
Orders and Judgements
RCP - R38.10 Disposition of Application
RCP - R38.11 Setting aside Judgment on Application Made without Notice
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(e) Court 'Leave to JR' Rules
These Rules legally apply only in rare occasions. These are where a non-JRPA statute sets out both statute-specific 'judicial review' - and 'leave to judicial review' - provisions. Leaves to appeal are much more familiar and common, and are 'built right into' the CJA in several sections. The only occasion I have found of this rare occurence is that of the Construction Act [s.13.18 'Setting aside on judicial review'].
Judicial Review - Leave to Judicial Review
RCP - R68.01(3-6) JR Procedures - Where Leave Required
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