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Judicial Review (JR-3)
3. JR PROCEDURES
(a) Overview
This sub-topic of 'JR Procedures' addresses:. the 'exhaustion' doctrine [whereby, if another procedure still remains to challenge the matter (classically an appeal)] a JR is at least temporarily barred,
. 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).
(b) 'Exhaustion' Doctrine
Judicial review (JR) is a discretionary procedure [see Ch.1(b) 'Overview - JRs are Discretionary' (above)], almost one of 'last resort'. Since JR is essentially an administrative law remedy, this dictates the presumption that all available 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 of whether to dismiss a JR because other suitable proceedings have not yet been 'exhausted'. While principled exceptions to these several 'exhaustion' forms exist, they have IMHO 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 doctrinal 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(1,5) - but this 'new' doctrine simply worsens the strain on litigants as it legitimizes the need to 'double-up' on both appeals and JRs where the litigants feels that they might have all of legal, fact and mixed fact and law grounds to assert on review. From the perspective of the citizen-litigant (and what other perspective should we respect?) this area of law - like so many others - cries out for rational reform - all this while the legislature continues in it's blind disregard for it's negative effect on democracy.
Prematurity
JR Cases - Prematurity (+)
JR Cases - Prematurity Exceptions (+)
Adequate Alternative Remedy (AAR)
JR Cases - Adequate Alternative Remedy (Strickland) (+)
Exhaustion Doctrine Merger?
JR Cases - 'Exhaustion': A Prematurity-AAR Merger?
Administrative Exhaustion Doctrine and Yatar
JR Cases - Administrative Exhaustion - Yatar
SPPA s.21.2(1) Power to review
(c) Court JR Routes
The term 'route' is more commonly used in this legal context when considering an 'appeal route', which - in appeal situations - means the tracing through specific statute provisions (all appeal are statutory) to ensure that the appellant is familiar with all restrictions, time limits, express standards of review and anything else they need to be aware of to conduct their appeal. A similar (though less used) term is addressed here: ie. a "JR route".
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
JR - Divisional Court 'Main' Application Option [JRPA 6(1)]
JRPA s.6(1) Application to Divisional Court
'Urgent' Option
JR - Superior Court 'Urgent' Application Option [JRPA 6(2)]
JR Cases - 'Urgent' Option
JRPA s.6(2) Application to judge of Superior Court of Justice
JRPA s.6(3) Transfer to Divisional Court
Damages Action Option
JR - Superior Court Action Damage Option [JRPA 8]
JR Cases - Damages
JRPA s.8 Summary disposition of actions
JRPA s.6(3) Transfer to Divisional Court
(d) Court JR Rules
This subject addresses the applicable Rules of Civil Procedure JR application provisions [ie. R38 and 68] (but not the JRPA s.8 regular action damages forum provisions). This can be confusing as R38 applies to all applications, while R68 applies to JR applications - and, just to make it more difficult, the two Rules cross-reference each other.
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').
Nonetheless I attempt this task for the specific task of setting out the application procedures for judicial reviews. Procedures applying to JRPA s.8 damage actions are not dealt with in this JR topic, but are generally addressed in the Civil Litigation topic.
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 a JR
Notice of Application
JR Cases - Notice of Application
JR Cases - '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
Form
Form 68A
Subsequent Procedures
Notice of Appearance
RCP - R38.07 Notice of Appearance
Abandoned Applications
RCP - R38.08 Abandoned Applications
Stays Pending JR
JR Cases - Stay Pending JR
SPPA s.25(1-2) Appeal operates as stay, exception
Summary Dismissal of JR
Quashing
JR Cases - Quashing
Dismissal for Delay
JR Cases - 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 Cases - Motions [R37]
JRPA s.4 Interim order
Striking Documents [under R25.11]
RCP - R38.12 Striking out a Document
Perfection
Filings
JR Cases - 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
(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'].
JR Cases - Leave to Judicial Review
RCP - R68.01(3-6) JR Procedures - Where Leave Required
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