|
Judicial Review (JR-4)
4. JR STANDING
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 Intervention, which addresses the standing-'like' - but court-limited - status of entities under RCP R13 ['Intervention'].
Based on generic 'standing' law, the basic principle is that anyone (or any corporation) that has an 'interest' in the JR, is entitled to be a party.
General
JR Cases - Standing - General
JRPA 1 "Definitions" (party) [this definition of 'party' ensures that labour and municipal entities may be parties, though it is not an exhaustive listing]
The Isthatlegal website has it's own Standing topic.
Tribunal or Decision-Maker
Any involved tribunal or other decision-maker has the right to be a party [JRPA 9(2-3)].
JR Cases - 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)] - where the court has the discretion to make them a formal party.
JR Cases - Standing - Notice to and Standing of the Attorney-General
JRPA 9(4) 'Notice to Attorney General'
Unincorporated Associations
I find this to be an interesting area of law and have given it it's own Assocations topic. The law of unincorporated associations is ultimately grounded - quite surprisingly - in contract law.
JR Cases - Standing - Unincorporated Associations
Other Issues
These are various specific issues that arise on standing topics.
JR Cases - Standing - Public Interest
JR Cases - Standing - Private
JR Cases - Standing - Federal
JR Cases - Standing - Discretion
JR Cases - Standing - Courts
JR Cases - Standing - Complainants
5. JR LIMITATIONS
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 [contrasted with that which applies to civil court claims such as lawsuits and non-JR applications under the Limitations Act (LA)] [see LA s.2(1)(c)], and the court operated 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).
The 'new' (ie. post-08 July 2020) JR limitation and time extension provisions are located in the Judicial Review Procedure Act (JRPA s.5)]. Now the law is akin to the standard 30-day appeal commencement timeline and time extension rules under the Rules of Civil Procedure. Indeed when this change was first made, some judges seemed to treat it in the same fashion.
This new JR limitation period can be quite harsh. It requires the applicant to commence their JR application within 30 days of the events that they hope to judicially review. That is, time is not counted 30 days from the applicant 'learning' of the events (which is called 'discoverability', and which is the method used 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 the 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. Many would-be JR applicants will run into the well-established JR 'exhaustion' doctrine [see Ch.3(b) 'JR Procedures - Exhaustion Doctrine', above] - 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 will not know for sure if such an adequate procedures (or procedures) is available 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 such potential 'competing' procedures (including the JR) to 'preserve their rights' - as was done in Libfeld v Libfeld (Ont CA, 2026) [para 56]), although in Libfeld it was done to preserve an appeal right in similar time-pressed circumstances. Then - logically - that would need to be followed up with a temporary JR 'stay' (suspension) motion while first pursuing the non-JR procedures. That such precautionary measures might be required is wasteful of both party and court/tribunal time and resources and shows the need for legal reform in this regard, either common law or statutory (though the chances of the latter appear slim).
Consequently, the net effect of this JRPA [s.5] amendment which shortens the limitation period for JRs is to drastically increase the uncertainty, effort and expense of challenging government administrative actions - all this in a manner that I think is obviously unfair and designed to protect the executive government and Crown entities from legal challenges. Without a firm and reliable common law or statutory 'extension' to extend the short 30 day 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 decisions and actions. This violates quite sensible rules like the prohibition against a 'multiplicity of proceedings' [CJA 138], and increases the already significant logistic burden on the JR applicant in their pursuit of otherwise pointless stays and unnecessary proceedings.
JR Laches
JR Cases - Laches/Limitation - Pre-8 July 2020 Legislative Amendment
JR Limitations
JR Cases - Limitation - Post-8 July 2020 Legislative Amendment (+)
JR Cases - Limitations - 'Continuous Course of Conduct'
JRPA 5(1) 'Limitations'
JRPA 5(2) 'Extension'
JRPA 5(3) 'Same, Other Acts'
JRPA 5(4) 'Transition'
COVID
Civil Litigation Cases - COVID - 2020 Time Limits Suspension Explanation
COVID - 2020 Time Limits Suspension Cases
|
