USING THE COURTS: JUDICIAL REVIEW

- Unlike appeals, which are statutorily created, judicial review is the review of executive action
beyond what the executive itself provided for, and is about the inherent jurisdiction of courts
to oversee and check administrative (that is, executive) action in the interest of the rule of law
- In addition to the discretionary nature of judicial review (Domtar), differences in history and
function of judicial review also mean that whether it will be available as a remedy depends on
5 threshold questions:
a) Is the tribunal a public body?
- This is the first threshold questiononly public bodies can be subject to judicial review
- McDonald: if a decision-maker fulfills a public function, or if the decision-maker has public
law consequences, a duty of fairness applies and the decision is subject to judicial review
b) Does the party have standing to challenge the tribunal decision?
- Straightforward for actual parties to an administrative action, but not third parties
- ie: "public interest" standing (See Sierra Club)
Canada (Attorney General) v. Downtown Eastside Sex Workers United Against
Violence Society, 2012 SCC 45 (a Charter case whose holding on public interest standing is
equally applicable in administrative law).- dealing with the law of public interest standing in
constitutional cases. The courts decision appears to lower the bar for standing, which might
make it easier for non-governmental organizations and other third parties to initiate
constitutional claims.
SWUAV commenced an action challenging the constitutional validity of sections of the
Criminal Code that deal with different aspects of prostitution. SWUAV seeks a
declaration that these provisions violate the rights of free expression and association,
to equality before the law and to life, liberty and security of the person guaranteed by
the Charter. In 1981, SCC established a three-part test for public interest standing:
o Is there a serious justiciable issue as to the laws invalidity?
o Is the party seeking standing either directly affected by the law or does he or she
have a genuine interest as a citizen in the validity of the legislation?
o Is there no other reasonable and effective manner in which the issue may be
brought before the court?
In this case, the British Columbia courts accepted that SWUAV raised a substantial or
important constitutional issue that was not frivolous. As such, there was a serious
justiciable issue. The courts also accepted that SWUAV had a genuine interest in the
claimin the Supreme Courts words, it was fully engaged with the issues. The issue
in dispute was whether there was another reasonable and effective way to bring the
constitutionality of the prostitution provisions before the court.
SCC agreed SWUAVs claim should proceed. It found that the motion judge applied the
test for public interest standing too rigidly in that he required SWUAV to show no other
means for litigating the issues. Instead, the motion judge should have applied a more
purposive, flexible and discretionary approach that balances scarce judicial resources
with the principle that state action should conform to the Constitution. In doing so, the
court should consider:
1. the plaintiffs capacity to bring forward a claim
2. whether the case is of the public interest
3. whether there are realistic alternative means to challenge the provision; and
4. the potential impact of the proceeding on the rights of others who are equally or more
directly affected.
SCC noted, the test for standing has not always been expressed and rarely applied so
restrictively. As such, motion judges have been using the purposive and flexible approach in
standing cases notwithstanding the rigid language of the legal test. Thus, it is unclear whether
this decision will open the floodgates in constitutional and public interest litigation. At least
for SWUAV though, its claim can proceed, which may lead to more claims of this type.

c) Which court to apply to for judicial review?

- Both provincial superior courts and Federal Courts have judicial review jurisdiction
- General rule, subject to any exceptions in the enabling statute, is that going to either
BCSC/BCCA or Federal Court of Canada determined whether dispute is provincial or federal
d) Is the application timely?
- BC ATA, s.57(1): time limit is 60 days in BCnot default 2 year limitation period for most civil
actions
- However, courts are statutorily empowered to extend time limit if there is a reasonable
explanation
- Deadlines- Federal Courts Act states that a judicial review application from a federal tribunal
must be made within 30 days of the time the underlying decision or order is first
communicated. However courts are often statutorily empowered to extend the time limit for
making a judicial review application- ex- where there is a reasonable explanation for the
delay, where no substantial prejudice or hardship would result, or where the party can
demonstrate prima facie grounds for relief.
e) Has the applicant exhausted all other means of recourse?
- Depending on tribunal's enabling statute, this may include all previously mentioned
remedies
- ie: reconsideration by same tribunal, appeals to appellate tribunals, intra-agency
mechanisms such as grievance arbitration, and appeals to court
- Harelkin: applicants must exhaust all alternative avenues of appeal before going to JR as a
last resort
Domtar v. Quebec (1993 SCC) (the "I got a favourable ruling from the Labour Court on
compensation for my workplace accident which conflicts with the decision of the first internal
appellate body that the courts refuse to overturn b/c not unreasonable" case)
When 2 parallel administrative tribunals differ in their statutory interpretation of a
provision, this "inconsistency" cannot provide an independent basis for judicial review
and a remedy, as courts must respect admin decision-making autonomy
Here, there was no conflict; even if there was, it would not constitute an independent
basis because this would mean that "the principle of the rule of law" would be qualified
Therefore, admin tribunals have authority to err within their area of expertise, and a
lack of unanimity is the price to pay for the decision-making freedom and
independence given to members of these tribunals by the legislature
Harelkin v. University of Regina (1979 SCC) (the "I didn't appeal to the Senate as the
statute permitted, but went straight to JR because of concerns over the fairness of the
proceedings, and court should exercise their discretion to hear me" case)
It is not enough for an applicant to show that a right has been violated to get a judicial
review remedy; must exhaust all alternative avenues of appeal and use JR as a last
resort
Even though he had no opportunity to be heard at the 1 st level and therefore bypassed
the 2nd level, he was not entitled to assume that the superior body would decide the
matter in the same way as the 1st body
Can't burden courts until internal appeals are exhausted, so H wasted his time and
money going to JR too early
Canadian Pacific v. Matsqui Indian Band (1995 SCC) (the "even though I owe taxes to
the reserve, I don't want to go to the 2 nd level of internal review because the board
membership is dominated by the band and thus isn't independent" case)
Affirms Harelkin that an applicant must exhaust all internal appeal mechanisms before
going to judicial review
Also, if an appeal tribunal gives an adequate remedy, an applicant can't then go to court
because it's a better forum; tribunals exist to give applicants an adequate remedy, not
necessarily the ideal remedy

McDonald v. Anishinabek Police Services (2006 Ont. SC) (the "aboriginal cop faced complaints
of sexual misconduct during training course, was kicked off grounds, but Police Chief that
kicked off was a creature of contract, not statute" case)
- Judicial review is only available if an agency is a public body, and it is the subject matter, not
the source that determines a remedy if a particular action affects individual rights or
legitimate expectations
- Here, APS Chief's actions were "public enough" as it was fulfilling a gov't function and
therefore was subject to JR
- Also, APC Chief owed a duty of fairness as a public decision-maker as since he fulfilled a
public function, his decisions had public law consequences, and manner of dismissal here
didn't meet Code of Conduct requirements and was procedurally unfair.