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4. JR STANDING
Comment
In this JR context, 'standing' concerns what entities have the right to bring and respond (ie. to be 'parties' to) a judicial review. That is, those entities that have full rights of participation in the proceeding. This sub-topic is separate from the law of , which addresses the standing-'like' - but court-limited - status of entities under RCP R13 ['Intervention'].
Drawing on generic 'standing' law [linked below], the basic principle is that anyone (or any corporation) that has an 'interest' in the JR, is entitled to be a 'party'.
The Isthatlegal website has it's own Standing topic, which for present JR purposes turns largely on the 'public versus private' dichotomy.
General
Standing - General NEEDS REVIEW
JRPA 1 "Definitions" (party) [this definition of 'party' ensures that labour and municipal entities may be parties, though it is not an exhaustive listing]
Tribunal or Decision-Maker
Any tribunal or other decision-maker has the right to be a party [JRPA 9(2-3)].
Standing - Tribunal
JRPA 9(2-3) 'Exerciser of power may be a party'
Attorney-General
The Attorney-General has the right to receive notice of, and to be heard at, the JR hearing [JRPA 9(4)] - wherein the court has the discretion to make them a de facto party.
Standing - Notice to and Standing of the Attorney-General
JRPA 9(4) 'Notice to Attorney General'
Unincorporated Associations
I find this an interested area of law and have given it it's own Assocations topic. The law of associations is ultimately grounded - quite counter-intuitively - in contract.
Standing - Unincorporated Associations
Other Issues
Standing - Public Interest
Standing - Private
Standing - Federal
Standing - Discretion
Standing - Courts
5. JR LIMITATIONS
Comment
The law of judicial review (JR) limitations underwent major charges on 08 July 2020. Prior to that date there was no general statutory limitation on JRs, and the court relied on an equitable 'laches' (delay) principle. This the courts generally counted at six months from the triggering 'events' to the commencement of the JR application (though I have seen some cases requiring actual perfection of the application within six months). Since 08 July 2020 however, the law is much more akin to the standard 30-day appeal timeline, with extensions under the Rules of Civil Procedure (though the JR timeline and extension are located in the Judicial Review Procedure Act (JRPA s.5).
This new JR limitation period can be quite nasty. It requires the applicant to commence their JR application within 30 days of the events that they hope to judicially review.
That is, it's not counted 30 days from the applicant 'learning' of the events (which is called 'discoverability', and which is the method used in for non-JR claim purposes Limitations Act [s.5(1)]), rather it's counted directly from the triggering decision or event - even if you don't yet know of it. If you miss the events by 30 days you have to both move quickly and hope you fall under an extension provision [JRPA s.5(2-3)], otherwise you're out of time and can't bring the application.
As well, these new JRPA limitation changes can have profound additional negative impacts for potential JR applicants. Most would-be JR applicants will run into the well-established JR 'exhaustion' doctrine [see above in 'JR Procedures - Exhaustion Doctrine'] - which has been recognized in several forms: ie. 'prematurity', 'adequate alternative remedy' (AAR) and the doctrine against interlocutory admin appeals (ie. no interlocutory appeals). The 'exhaustion doctrine' will typically bar a JR if any other adequate procedure exists to address the matter - but one doesn't know for sure if this (or these) alternatives will be adequate until those procedures are concluded, which could be a matter of years later. So, in order to be safe, JR litigants will often be motivated to file all potential procedures (including the JR) to 'preserve their rights', logically following them up with a JR 'stay' (suspension) motion while first pursuing the non-JR procedures.
The net effect then of this shortening of the limitation period for JRs is to drastically increase the uncertainty, effort and expense of challenging government administrative actions. Without a firm and reliable statutory 'extension' to extend the JR limitation while the applicant is pursuing these legally-required alternatives the party is put at serious risk of forever losing their rights to challenge these decision and actions. This violates quite sensible rules like the prohibition against a 'multiplicity of proceedings' [CJA 138], and increases the already profound logistic burden on the JR applicant in their pursuit of otherwise pointless stays.
JR Laches
Laches/Limitation - Pre-8 July 2020 Amendment
Limitation - Post-8 July 2020 Amendment (+)
JR Limitations
Limitations - 'Continuous Course of Conduct'
JRPA 5(1) 'Limitations'
JRPA 5(2) 'Extension'
JRPA 5(3) 'Same, Other Acts'
JRPA 5(4) 'Transition'
COVID
COVID - 2020 Time Limits Suspension Explanation
COVID - 2020 Time Limits Suspension Cases
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