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Human Rights (Ontario) Law
(01 March 2019)

Chapter 20 - Judicial Review

  1. Overview
  2. The Code and Judicial Review
    (a) Overview
    (b) Privative Clauses
    . Overview
    . No Judicial Review Unless Decision "Patently Unreasonable"
    . No Judicial Review for Rules Violation or Exercise of
    . Court Treatment of Private Clauses
    (c) Standard of Review
    (d) Prematurity
    (e) Record of Proceedings
  3. Commission Application to Divisional Court by Way of "Stated Case"


1. Overview

In the Canadian constitutional scheme of things, 'superior' court or 's.96' judges [named after the section of the constitution that creates them], sitting at various levels of each provinces' courts, are the primary judicial authority. While they in turn are governed in the appeal hierarchy by the provinces' Courts of Appeal and, ultimately, the Supreme Court of Canada - they are the backbone of our judicial system and have 'supervisory' jurisdiction over the statute-created provincial courts, justices of the peace, and as well administrative tribunals like the Human Rights Tribunal of Ontario.

This supervisory jurisdiction over 'inferior tribunals' is typically exercised in one of two primary procedures: statutory appeal or judicial review. Statutory appeal is typically the first and best option, but if no court appeal right is created by some statute somewhere, then there is none and the aggrieved parties must seek redress through the more generic 'judicial review'.

2. The Code and Judicial Review

(a) Overview

The Code - unlike most administrative tribunal parent statutes - does not provide for any statutory appeal procedure from the decisions of the Human Rights Tribunal, and there is no other appeal right from tribunal decisions to fall back on. Therefore the only other available route to subject a Tribunal decision to appellate-type scrutinty is by way of 'judicial review' under Ontario's Judicial Review Procedures Act ("JRPA").

That said, the legislature has seen fit to limit and define when judicial review of a Tribunal decision is available.

(b) Privative Clauses

. Overview

A 'privative clause' is a statutory provision that attempts to bar or at least limit, the ability of a party to have an inferior tribunal's decision reviewed by a court.

. No Judicial Review Unless Decision "Patently Unreasonable"

The Code attempts to limit judicial review by virtue of a privative clause which purports to bar judicial review by a party unless a very high threshold of error is reached, called "patently unreasonable" [see (c): "Standard of Review", below].
Code 45.8
Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act [SPPA] and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
Note 1:
The s.45.7 exception is to allow an exception for the Tribunal's reconsideration procedures [see Ch.19].

Note 2:
The other exception noted in s.45.8: SPPA s.21.1, refers to a minor "correction of (technical) errors in orders" authority granted under that section to any administrative tribunal. The Ontario Human Rights Tribunal has taken that jurisdiction up in Rule 25.

Note 3:
I find this "patently unreasonable" criteria odd. "Patently unreasonable" is commonly used in law as a standard of review of fact (or evidence) decisions. Section 45.8 makes no reference to law decisions, which are distinct from fact decisions. In appeal or judicial review law the division between facts and law are the primary dichotomy under consideration.
. No Judicial Review for Rules Violation or Exercise of Discretion

The Code also contains a second, less strident, privative clause:
Code s.43(8)
Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter.
This clause attempts to exempt the Tribunal from judicial review for contravention of its own Rules (which is allowed for in Social Justice Rule A4.2 in any event). That said, applications for judicial review of errors which do not "cause a substantial wrong" are not likely to have much success even without this provision.

. Court Treatment of Privative Clauses

While courts commonly disregard privative clauses (essentially viewing them as efforts to oust the constitutional authority of superior court judges) - or give them little weight - they are nonetheless intentional legislative barriers to judicial review. Particularly in light of the intentional absence of any statutory appeal, they reflect an odd legislative animosity to appellate-type review which is disturbing in a constitutional democracy.

(c) Standard of Review

The term "patently unreasonable" used in Code s.45.8 (quoted above) has a significant history. Typically in statutory appeals the legislation sets out what sort of errors must be committed by the inferior tribunal before an appeal is successful, the most common being 'legal error'. 'Patently unreasonable' is used in the same context, though it tends to refer to fact errors, not legal errors.

But other kinds of errors can occur, such as jurisdictional error (decision made over subject matter, parties etc not within the tribunal's authority), misapprehension of evidence (evidence misunderstood) and even such relative exotica as bias or conflict of interest of the adjudicator.

Where a statutory appeal exists, the legislative provision creating it will typically specify what sorts of error may ground a successful appeal (usually 'legal error'). However, where no statutory appeal exists - and therefore the only recourse is to judicial review - courts have in past required a relatively extreme level of error in order to justify judicially reviewing something that the legislature has said (or implied by lack of a statutory appeal right) that they don't want reviewed. The most dominant of these 'standards' has been (until recently) "patently unreasonable".

(d) Prematurity

Another barrier to effective and thorough-going superior court supervision of inferior tribunals is the court's self-imposed doctrine of 'prematurity'. This is an ill-defined concept but it generally revolves around the idea that all available procedures at the lower level should be exhausted before recourse is had to the courts. The rationale for this seems to be concern over the efficient use of judicial time and effort, on the theory that until such lower tribunal procedures are exhausted then judicial review may in fact be unnecessary, as the aggrieved party might win anyway.

Another theme in the doctrine of 'prematurity' is that of the 'finality' of decision. This relates to the exhaustion of lower tribunal remedies just mentioned (above) but also focusses on the bifurcation of any tribunal's decisions into 'orders' (typically with respect to interlocutory procedural matters) and judgments (decisions which end the tribunal proceeedings).

The issue of 'finality' in judicial review is acknowledged in at least one place in the Rules:
Rule 13.5
A decision by the Tribunal under Rule 13.4 to continue to deal with an Application is not a final decision regarding the Tribunal's jurisdiction in respect of the Application.

The Rule 13.4 reference is to a decision of the Tribunal to not dismiss an application for lack of jurisdiction as is discussed in Ch.12, s.4: "Summary Proceedings: Dismissal for Lack of Tribunal Jurisdiction". Plainly a decision to dismiss for lack of Tribunal jurisdiction, assuming any available reconsideration proceedings are exhausted, is a 'final' decision and judicial review of such a decision should not fail on prematurity grounds.
The upshot of the doctrine of prematurity is that the Divisional Court (which hears judicial reviews) may, even if faced with a tribunal decision that is clearly in error, still decline to rule on the issue until all lower tribunal proceedings are exhausted.

The subject of prematurity of judicial review is also discussed in relation to reconsideration proceedings in Ch.19, s.1(b): "Reconsiderations: Overview and Comment: Comment". The issue of concern there is whether reconsideration proceedings must be exhausted before the doctrine of prematurity can be avoided, and the answer appears to be yes.

(e) Record of Proceedings

Another aspect of the Code's animosity to having Tribunal decisions reviewed by a court is its position on the creation of a coherent Tribunal level 'record' (ie. recorded version of what happened before it). 'Records' are hugely useful, almost essential, to a court when conducting a judicial review of a lower tribunal decision. Any inhibition of the creation of a coherent and accurate record is a clear impediment to the court's ability to exercise its supervisory role over such lower tribunals.

In fact, the Judicial Review Procedures Act requires such records to be filed with it by the Tribunal being reviewed:
JRPA s.10
When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.
The Tribunal [Rule 3.7] has stated, apparently as a policy, that it "does not normally record or transcribe its proceedings", which - while not particularly helpful in terms of judicial scrutiny, is probably not a natural justice violation.

However it goes on to say that "(w)here a hearing is recorded the recording does not form part of the Tribunal's record of proceedings including any record filed in respect of an application made under the Judicial Review Procedures Act". This is a bald attempt by the Tribunal to exempt itself from the above-quoted JRPA provision, and in my opinion is unlikely to be respected as valid by any reviewing court.

3. Commission Application to Divisional Court by Way of "Stated Case"

So far this chapter has discussed party and Tribunal applications for judicial review. However there is a specific 'judicial-review'-like procedure available to the Commission in some circumstances.

The Code [s.45.6] and the Tribunal Rules [Rule 27] both set out how these Commission "stated case" applications procedures work, and what criteria must be met for them to be successful. These issues are discussed at length in Ch.18, s.5: "Commission Role: Stating a Case to the Divisional Court".

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