Applications for Judicial Review
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Applications for judicial review are some of the most complex litigation proceedings. When a party believes that a final proceeding before an administrative body was incorrect or unreasonable, they may submit an application for judicial review to the Divisional Court, a branch of the Superior Court of Justice. Applications that challenge the correctness of an administrative body’s decision typically focus on questions of procedural fairness, but they may also include whether the body had jurisdiction to make the decision or whether the decision reached was constitutional. Applications that challenge the reasonableness of a decision will focus on whether the decision was supported by evidence and reasons.
Administrative agencies are established through government statutes and regulations to perform functions that are administrative, quasi-judicial and judicial in nature. They are often specialized in scope. If the issue to be decided applies to broader social or economic policy it is likely administrative, whereas if the issue applies to a particular case or affects the rights and obligations of an individual it is more likely judicial or quasi-judicial. For example, the new Local Planning Appeal Tribunal (“the LPAT”) performs a quasi-judicial function when it holds appeal hearings related to municipal planning and land use matters.
The legislation that governs the administrative authority may sometimes contain procedural requirements specific to the administrative body. The Statutory Powers Procedure Act also sets out general procedural requirements for administrative bodies. Often the body is permitted to make their own procedures for certain aspects of their proceedings. However, all administrative bodies must abide by the doctrine of procedural fairness, which provides for a general duty to act fairly.
Not all administrative bodies will be required to follow the same procedural fairness guidelines. A context-sensitive approach is used to determine what level of procedural fairness is owed in each circumstance. Administrative bodies that perform quasi-judicial or judicial functions have a higher obligation to act fairly, as opposed to agencies that perform administrative functions. For example, a zoning by-law appeal which has affected the developability of an individual’s land will require a higher level of procedural fairness than someone who has applied for a minor variance to extend the height of their fence.
In Baker v Canada the Supreme Court of Canada determined that the following non-exhaustive list of 5 factors should be considered when determining what level of procedural fairness is owed:
- The nature of the decision and the process followed when making it;
- The nature of the statutory scheme and the statutory provisions under which the administrative body operates;
- The importance of the decision to the individual or people affected;
- Whether the applicant had legitimate expectations regarding the procedure-based promises, practices or representations of the decision-making authority; and
- The choices of procedure made by the agency itself, especially where the statute leaves this authority to the decision maker or where the agency has an expertise in determining what procedures are appropriate in the circumstances.
Common Law Principles of Procedural Fairness
Common Law principles of procedural fairness include, but are not limited to, the following:
- The Right to be Heard
When an administrative body makes a decision that will substantially affect an individual’s rights, privileges or interests, they must provide the individual with the opportunity to be heard. This does not always mean that a formal hearing is required. It means that the decision maker must have all of the necessary information in front of them before they reach a decision. When there are higher stakes involved for an individual they are more likely to be entitled to a formal hearing procedure.
- The Right to Notice
All parties whose rights, privileges or interests may be affected by an administrative body’s decision are entitled to receive notice of the proceeding. They must be informed of the reason for the proceeding as well as the date, time and location of the proceeding. Without proper notice, parties may not be able to prepare for and meaningfully participate in proceedings.
- The Right to Make Submissions
Parties are entitled to a reasonable opportunity to submit relevant information to the decision maker. This may include oral or written submissions. However, parties are not always entitled to make oral submissions. The decision maker may refuse to hear information that is not relevant, unreliable or that has not been disclosed in accordance with the body’s rules and procedures.
- The Right to Cross-Examine
Parties are entitled to know what evidence is being brought against them and must be provided with a fair opportunity to respond to that evidence. When there is an oral hearing, parties must be allowed to cross-examine the other party’s witnesses. The decision maker may place reasonable limits on cross examination, such as to exclude irrelevant, abusive or repetitive questions. Where the hearing is being conducted in writing, each party must be given access to the submissions and evidence of the other parties and must be given the opportunity to respond in writing.
- The Right to Receive Reasons
Parties are entitled to receive reasons from the decision maker. These reasons must be sufficient to allow the party to understand why the decision was made. These reasons also assist the Court when a matter is subject to judicial review.
- The Right to an Impartial Decision Maker
Parties are entitled to an unbiased decision maker who has not predetermined the issues and does not have a predisposition in favour of one party. The proceeding is not procedurally fair when there is a reasonable apprehension of bias. This means that the party does not need to prove that there was an actual bias, only that a reasonable and well-informed observer would conclude that the decision maker would likely be biased. Allegations of bias must be raised during the proceeding or the court will consider the party to have waived their right to argue this point later.
The following scenarios may lead to a reasonable apprehension of bias:
- The decision maker meets with one party in private;
- The decision maker has a relative that will be affected by the outcome of the decision; or
- The decision maker expresses personal opinions on the issues during the proceeding.
Application to Municipal Law
We believe that applications for judicial review will become a more commonly used avenue for municipal appeals now that the Ontario Municipal Board has been abolished and replaced with the LPAT, or in Toronto, the Toronto Local Appeal Body (TLAB).
The LPAT does not hold de novo hearings and instead focuses on whether the municipal authority’s decision is consistent with provincial policies and municipal plans. LPAT proceedings are, for the most part, conducted in writing. This means that the LPAT does not hear new evidence or review whether the decision was procedurally fair. An application for judicial review may be a beneficial appeal route for rejected LPAT appeals.
It is advisable to seek assistance from a lawyer because of the complex nature of applications for judicial review. It is extremely important to have a clear and logical Affidavit and Factum outlining your legal arguments because these documents will be relied on at the hearing. There are also strict timelines and procedures that must be followed throughout the process.
Please contact Michael Paiva for more information about procedural fairness, or if you require assistance with an application for judicial review.
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