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Judicial Review - Basics. Yatar v. TD Insurance Meloche Monnex
In Yatar v. TD Insurance Meloche Monnex (SCC, 2024) the Supreme Court of Canada resolved issues regarding joint JR/appeal procedure, which arose where appeals were limited to 'questions of law' but the appellant still sought to challenge issues of fact or mixed fact and law [which a judicial review (JR) could conceivably have jurisdiction over]. In such cases the issue arose as to the role of the court's JR discretion, and - if applied to hear the JR - what standard of review applied.
Here the court emphasizes the role of judicial review in our constitutional system:[46] The importance of judicial review was affirmed by this Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 27:As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. . New Blue Ontario Fund v. Ontario (Chief Electoral Officer)
In New Blue Ontario Fund v. Ontario (Chief Electoral Officer) (Div Court, 2024) the Divisional Court illustrates some Election Finances Act procedures, here were a political party felt they were entitled to greater allowance subsidies.
Here, the court contrasts the duty to give reasons of an adjudicator (typically, a tribunal) with those of a (simpler) administrative decision-maker:[57] In this case the context of the proceeding is not one where the CEO is an adjudicator. He is an officer of Ontario’s Legislative Assembly, with statutory authority to administer the EFA. As such, he was required to explain the reasons for his decision taking into account the arguments that had been put before him, not to consider every aspect of the statutory context that might bear upon his decision.
[58] Thus, we do not accept that the CEO’s decision should be considered unreasonable for failing to explicitly deal with an argument about the statute’s purpose that was not put before him. . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR brought by an employee with autism, here of an ESDC staff investigation. In the quote the court cites the summary nature of judicial reviews:[45] Mr. Haynes also submits that the Attorney General should have brought a formal motion in advance of the hearing to deal with the documents issue. However, applications for judicial review are intended to be summary proceedings, and preliminary motions of this sort add greatly to the cost and time required to deal with such matters and are therefore to be discouraged: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 at page 600 (F.C.A.); Rosianu v. Western Logistics Inc., 2021 FCA 241 at paras. 23, 27-30. . Toronto District School Board v. Canadian Union of Public Employees [see full case for numbered case cites]
In Toronto District School Board v. Canadian Union of Public Employees (Div Court, 2023) the Divisional Court considers Vavilov factors to apply in a JR, here of a labour arbitrator's award:[22] The Parties agree that Vavilov[2] applies. Principles from Vavilov applicable to this case include:a. “The burden is on the party challenging the decision to show that it is unreasonable.” (para. 110);
b. Although reasonableness review remains a “robust form of review”, “courts intervene in administrative matters only when it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.” (para. 13);
c. “[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.” (para. 85);
d. “[T]he reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.” (para. 99);
e. The reviewing court must be satisfied there is a “line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” (para. 102, citing Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 55);
f. “[T]he reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency…. [T]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.” (para. 100); and
g. “In conducting reasonableness review, judges should be attentive to the application by decision-makers of specialized knowledge, as demonstrated by their reasons.” (para. 93). . Bell Technical Solutions Inc. v. Workplace Safety and Insurance Appeals Tribunal
In Bell Technical Solutions Inc. v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2022) the Divisional Court set out a (new?) two-step analysis for judicial reviews:[20] On a judicial review application, the reviewing court engages in a two-step analysis. First, the Court considers whether the decision under review has the hallmarks of a reasonable decision: justification, transparency and intelligibility. Once those hallmarks are considered, a reviewing Court goes on to consider whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision: See Vavilov, supra para. 99. . Mcmull v. Ministry of Health
In Mcmull v. Ministry of Health (Div Ct, 2021) the Divisional Court felt it necessary to set out basics of judicial review in the face of what they viewed as particularly intransigent self-litigants:[4] An application for judicial review is not a civil action. It is limited in scope and these constraints circumscribe the proper parties to the proceedings and the issues that can be raised. An application for judicial review is limited to a review of the decision made by the decision maker below, which in this case is the Health Professions Appeal and Review Board. The proper record before the Divisional Court on an application for judicial review, with narrow exceptions, is limited to the record that was before the Board. The parties to an application for judicial review are limited to the parties to the original proceeding with the addition of the decision maker – in this case the Board. The relief the Divisional Court can grant is also limited. Typically, if the Court finds that the Board’s decision was unreasonable or procedurally unfair, the Court will send the matter back to the Board to be decided afresh. In unique circumstances, the Court may substitute its decision for the Board’s decision but, in doing so, the Court is limited to the relief that the Board could have granted when it heard the matter. . Bastien v. University of Toronto
In Bastien v. University of Toronto (Div Ct, 2021) the Divisional Court made some basic comments of judicial review:[13] An application for judicial review is not a trial de novo or rehearing of the underlying dispute. It is a review of the decision below, in this case the decision of the AAC, based on the record that was before the AAC.[1] Apart from uncontroversial background evidence, affidavit evidence to supplement the record below is admissible only in exceptional circumstances.[2]
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