|
Judicial Review (JR-7)
9. JR AND THE CHARTER
There are a range of questions involving JR and the Charter of Rights and Freedoms. The most common one I've seen is whether the Charter expands the remedial powers that are normally available in (non-Charter) JR (it doesn't).
JR Cases - Judicial Review and the Charter
10. REVIEWING JR ORDERS
(a) Overview
This subject is about the procedures that one can take to challenge a negative JR ruling. When faced with such a ruling, the typical question is whether one has a right to 'appeal'? - the answer is that you do, but that you may have other options as well.
(b) Appeals
Overview
The most common 'appeal route' from a negative JR ruling is through CJA s.6(1)(a), which reads:6(1) An appeal lies to the Court of Appeal from,
(a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court; If however, your JR was conducted under the 'urgent' Superior Court provisions [JRPA s.6(2) ['Application to judge of Superior Court of Justice'] [see '3(d) JR Procedures - Court Routes', above], then your appeal route lies under JRPA 6(4), which reads:Appeal to Court of Appeal
6(4) An appeal lies to the Court of Appeal, with leave of the Court of Appeal, from a final order of the Superior Court of Justice disposing of an application for judicial review pursuant to leave granted under subsection (2). Standard of Review (SOR)
Appeals are subject to the normal appellate SOR, which is: 'correctness' for issues of law, and 'palpable and overriding error' for both issues of 'mixed fact and law' and 'fact'. Since the SOR for JRs is (normally) 'reasonableness', that means that the normal SOR for appeals from JR rulings is itself 'reasonableness'. The Court of Appeal (the court that would hear an appeal from a JR ruling) sometimes refers to this as them 'stepping into the shoes' of the JR court (which is usually the Divisional Court).
Appeal - Standard of Review (SOR) - Appeal of Judicial Review ('Shoes')
(c) Set-Asides
Rule 59.06 allows motions to set-aside earlier court orders (generally in civil litigation), but only on limited grounds as stated in R (H.C.) v. Ontario Special Education Tribunal (Ont CA, 2026):[22] Rule 59.06 is intended to permit limited amendments to correct errors arising from accidental slips or omissions, fraud, or newly discovered evidence. .... It is unusual for R59.06 set aside motions to be successful, and they are often brought on over-optimistic grounds.
Civil Litigation - Orders - R59.06 Motions
RCP s.59.06 Amending, Setting Aside or Varying Order
(d) Re-openings
A 're-opening' is just that - a re-opening of the case after judgment (ie. final order) - and they are available generally in both civil (including judicial reviews), criminal, appeal and other litigation. However motions for re-openings cannot be brought after the court is functus officio [latin: "having performed their office"] - which in civil cases is after a formal order is entered (and in criminal cases it's typically after sentencing).
Regarding the grounds for re-opening, the Ontario Court of Appeal has stated that a "court will re-open an appeal sparingly and only where it is clearly in the interests of justice" [Bajouco v. Green (Ont CA, 2017), para 24]" (this quote was made wrt an appeal order, but the same principles applies to re-opening other orders). Re-opening is a common law doctrine, not being anticipated in either the CJA or the RCP.
It is rare for motions to re-open to be successful, and they are often brought on over-optimistic grounds.
Review - Re-opening
11. FEDERAL v. PROVINCIAL JRs
(a) Overview
There are JR procedures at both the Ontario and the Canadian federal court levels, but this present topic deals only with Ontario JRs - although much of the case doctrine may apply to both court levels.
For federal JR cases see:
Federal Court [scroll down the end of the link]
(b) Distinguishing Federal versus Ontario JRs
JR Cases - Federal versus Provincial Courts
This link considers which court level (federal v Ontario) may apply to specific-fact situations.
|
