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Judicial Review - Leave to Judicial Review

. Anatolia Tile & Stone Inc. v. Flow-Rite Inc.

In Anatolia Tile & Stone Inc. v. Flow-Rite Inc. (Div Court, 2023) the Divisional Court, in distinquishing the separate 'leave for judicial review' regime of the Construction Act, refers to another more generic 'leave to JR' regime addressed in the Raincoast Conservation Foundation v. Canada (Attorney General) [2019 FCA 224, paras 9-16] case under the National Energy Board Act [*** you should review these cited Raincoast paragraphs for the material points]:
[5] Given this context, the “fairly arguable case” test for leave to bring an application for judicial review, stated by Stratas J.A. in Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224, does not apply to motions for leave to bring an application for judicial review of an adjudicator’s decision under the prompt payment provisions of the Construction Act.

[6] The impugned decision in Raincoast Conservation had final effect in respect to issues of great importance to the parties. By contrast, the effect of an adjudicator’s decision under the prompt payment provisions of the Construction Act is interim, not final. It is intended to be fast and to secure prompt payment in accordance with its terms. The parties can revisit the substantive issues in other litigation or adjudication proceedings. Given this context, we find that the test for leave, applied to the factors enumerated in s.13.18(5) of the Act, is analogous to the conjunctive test for leave to appeal an interlocutory order of a judge, and specifically:
Either:

(1) There is good reason to doubt that the impugned decision is reasonable; or

(2) There is good reason to believe that the process followed by the adjudicator was unfair in a manner that probably affected the outcome below;

And either:

(3) That the impact of the unreasonableness or the procedural unfairness probably cannot be remedied in other litigation or arbitration between the parties; or

(4) The proposed application raises issues of principle important to the prompt payment and arbitration provisions of the Construction Act that transcend the interest of the parties in the immediate case, such that the issues ought to be settled by the Divisional Court.


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Last modified: 09-03-23
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