Applications for Judicial Review
An application for Judicial Review is a process where a person asks the court to intervene in a decision of a: lower court, board, tribunal, commission, government agency, and/or government officer. Applications for judicial review are much different than an appeal. This is because an appela is a right, by law, whereas this is soemthign where the court involves itself in the decision in the interests of justice. While many laws say the decisions of an administrative board, commission, tribunal, or agency are not open to review by a court, this is not correct. This is because the courts have long recognized their constitutional authority to judicial review decisions. The courts authority comes from s. 96 of the Constitution.
It is important to note that judicial review is not a right and as such one must convince the court that doing so would be in the interests of justice. This is done by ensuring their case meets a certain test or threshold as set by the courts. As you read throguh the different types of judicial reviews and cases you will learn the tests to meet. There are several types of judicial review. They are:
Injunction, is very well known. This is used when a party asks the court to order the government body/officer to stop doing something or prevent doing something. The court may grant the request for an injunction to prevent harm or protect a legal right.The common test for a successful injunction is that:
(1) The applicant must demonstrate a strong prima facie case, that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;
(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and
(3) The applicant must show that the balance of convenience favours granting the injunction.
Declaration, is used when a party request the court make a statement about the parties’ legal positions or the law that applies to the party. A declaration may be made requested to be used to rule on a party’s rights or whether the decision-maker acted within the decision maker’s legislative authority.
Mandamus, is used when a party makes a request of the court to order the government body/officer to do something. For example, if the court decides that a government body/officer had a duty to do something and choose not to, then the court order the government body/officer to perform that duty.
To learn more mandamus, you can review my application in “My Story” and learn of my attempt. I had attempted to use a Mandamus to have the court order the board and/or tribunal to schedule, hold, an appeal hearing, within a set time frame. That additionally they would be required to issue a decision in a set time. The courts, including the Supreme Court of Canada, did not agree my matter was warranting of court intervention. This was very unfortunate for all injured workers across Canada and most importantly the furtherance of justice. This is because had the courts agreed with me, it would have meant that, as the courts have long claimed, that “injured workers have a right to speedy determination and payment of workers compensation.” As such injured workers could enforce that right. Ironically, most legal forums have an option for a matter to be heard on an urgent basis, but you will sadly find this is not the case with the workers compensation boards or tribunals/commissions. Instead, injured workers are forced to wait months years and decades for hearings and decisions.
As the famous legal doctrine says Justice Delayed, is Justice Denied!
Prohibition, this prevents a government body/officer from continuing an unlawful process or action. This is granted if the court agrees the government body/officer has no lawful authority to do something or it would be unlawful for the government body/officer to do something.
Certiorari, this is the most common application involving workers compensation matters and most mentioned. This to most is understood to be like that of appeal. This is when a higher court reviews a lower court/government body/officer decision and declares it of no lawful authority or force. If the court makes such a decision the court will quash the decision and either send the decision back to the original decision maker to be correctly redone, or the court may make its own decision in its place. For the court to make such a determination a party must prove the decision was either not correct or unreasonable. This is called the standard of review and in most cases the default standard is the higher one being that of reasonableness. To understand and learn what is the reasonable and correctness standards and how to properly argue this type of application for judicial review see the Supreme Court of Canada decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
First, that when reviewing decisions of applications for judicial review that you understand that applications for judicial review CANNOT be denied by law. This simply means if a law says that a court cannot review a decision, then this means the corut can under s. 96 of the Constitution.
Second, that each type of application has a different standard to meet or test. It is very important to understand this if you are considering that type of application. For example, with Certiorari, I have provided the Supreme Court of Canada decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 which provides within the decision, the test and how to meet it.
Third, that when reviewing decisions of other provinces/territories, it is important to take note the province/territory the decision was made in. Know that decisions from another province/territory may not carry the same weight as if the decision was made in the province/territory you are filing your applicator in. For example, if a decision below was made in in Ontario and you live in British Columbia, or Alberta, then it may not have much impact in those provinces. However, you should still use it in your arguments, as the court you are in may still consider. This is especially so if your province/territory has not dealt with that particular issue.
For this reason, I will try my best to include court decisions from all provinces/territories in Canada involving workers compensation matters. Also, if possible I will try and even include decisions from other counties as well.
Four, that applications for judicial review, according to current laws, must include the decision maker as a party. To clarify, this means that when an injured worker files an application for judicial review to the courts. The injured worker must list the employer as a respondent and also list the tribunal or board, whomever made the decision. This is something I am personally opposed to and feel that it violates the very principles of fundamental justice being the Rule of Law. The Ruel of Law simply states a decision maker must be impartial. I argue that allowing a decision maker a say in what might as well be an appeal of the decision makers decision is lacking in impartiality. This is because the decision maker gets to defend their decision against you. So far, the courts have ignored my arguments.
Five, that applications, as well as appeals to higher courts can and occasionally do have intervenors. An intervenor is a party that has been allowed to speak on the application. This can be allowed by legislation or by an order of a judge. You will see for the most part that injured workers do not have any intervenors and are typically left to fend for themselves.
While in some extremely rare cases, I have observed organizations will involve themselves, or intervene in a case, I do not know what the standard, threshold, or test is for them to do so. This is because there are quit a few. Eventually, I will be contacting each organization I know that has intervened in a case and ask them what the standard, threshold, or test for them to do so is. I will then post that information here.
As you can see above, applications for judicial review have been broken down by provincial/territorial jurisdiction. This has been done as it is very important to know that when arguing your matter to focus on:
To consider are decisions of the court of appeal form the province/territory your case is in. While cases from court of appeals from other provinces/territories a
Decisions of the Supreme Court of Canada have authority and must be followed by all courts, boards, tribunals, and commissions across Canada.
While decisions of other Countries Supreme Courts do not carry much weight, one could use them as reference in cases where a matter has not been dealt with in Canada, but the matter has been dealt with in another country. It is also important when referencing another country’s supreme court decision to focus on country who have a similar legal system as Canada. That being the English common law system. Some common English common law countries are, United Kingdom of Great Britain, United States, Australia, India, New Zealand, Jamaica, and many more. To see a complete list of English Common law or French Civil Code CLICK HERE. Also know in some Commonwealth countries of the United Kingdom of Great Britain, a party can appeal to the Judicial Committee of the Privy Council. Also note that cases based on Quebec's French Civil Code then would reference countries with French Civil Code. This is because Canada is a bijural country. Bijural meaning composed of two legal systems, being the English Common Law System and the French Civil Code.
Decisions of the court of appeal, in the Province/Territory where the matter is being heard, have authority, and must be followed by all lower courts, boards, tribunals, and commissions within that across Province/Territory.
While decisions of other Province/Territorial court of appeals do not carry much weight, one could use them as reference in cases where a matter has not been dealt with in that Province/Territory, but the matter has been dealt with in the other Province/Territory.
One could also consider using decisions from other countries’ Province/Territory/State court of appeal if the matter has not been dealt with in Canada or that decision provides better clarity to an issue.
Decisions of the court, in the Province/Territory where the matter is being heard, have authority, and must be followed by all lower courts, boards, tribunals, and commissions within that across Province/Territory.
While decisions of other Province/Territorial courts do not carry much weight, one could use them as reference in cases where a matter has not been dealt with in that Province/Territory, but the matter has been dealt with in the other Province/Territory.
One could also consider using decisions from other countries’ Province/Territory/State court if the matter has not been dealt with in Canada or that decision provides better clarity to an issue.