Judicial Review

WHAT IS JUDICIAL REVIEW?

  1. Judicial review is a process by which supreme court of Canada oversee decisions of administrative bodies to ensure they are fair, reasonable, and lawful. A panel of judges from the Divisional Court hear these applications in Ontario. If you or your corporation have received an administrative decision that you are unhappy with, you might have the opportunity to challenge the decision by way of a judicial review application.
  2. Professional Colleges and public decision-makers have a duty to make fair decisions. Those decisions, whether it is to suspend your professional licence or impose conditions on your ability to practice, can have a significant impact on your professional reputation and standing in your community.
  3. If a Complaints Committee or a Discipline Committee has made a decision that hurts your professional standing or livelihood, you should speak with the lawyers at JSM LAW. We can help you appeal the Committee’s decision, whether your appeal lies with the Health Professions Appeal and Review Board or a judicial review or appeal at the Divisional Court. For example, a judicial review can relate to the Ministry of Health’s decision to revoke the billing privileges of a pharmacy or pharmacist under the Ontario Drug Benefit Plan, or a decision of a Discipline Committee to suspend a Registered Massage Therapist’s licence.

What is Judicial Review in Canada?

  1. The judicial review process is a multi-step process undertaken in the Federal Court of Canada. It ensures that decisions made by certain administrative authorities were fair, correct, reasonable, and lawful. The review is done in front of a panel of three judges of the Divisional Court, though urgent cases can sometimes involve the superior courts too.
  2. While it may seem like it, a judicial review does not allow you to reargue a case. Instead, it is used to show that a decision made by an administrative body was not made properly. Judicial reviews address one of two standards; either the correctness of a decision or the reasonableness.
  3. Reasonableness is the deferential standard. This means that even if one of the judges feels they would have made a different decision, they will not interfere with a decision that is deemed reasonable. This means the individual has to persuade the tribunal that the decision was unreasonable to change the said decision.
  4. In some rare cases, the correctness standard applies instead. In these cases, the judges come to their own decision about the result.
  5. However, this standard only applies in limited circumstances, for example,
  6. There is a constitutional question;
  7. There is a question related to the jurisdictional boundaries between two or more administrative bodies;
  8. A general question of law of central importance to the legal system as a whole is raised.

WHAT DECISIONS ARE AVAILABE FOR JUDICIAL REVIEW?

  1. You might be eligible for a judicial review if you received a decision from one of the following administrative bodies:
    1. Ontario Labour Relations Board
    2. College of Physicians and Surgeons of Ontario
    3. Ontario College of Pharmacists and other Health Colleges
    4. Professional Engineers of Ontario and other Professional bodies
    5. Human Rights Tribunal of Ontario
  2. Immigration, Refugee & Citizenship decisions of Immigration, Refugees & Citizenship Canada, or the Immigration and Refugee Board, including:
    1. Decisions of all levels of the Immigration and Refugee Board, including refugee claims, inadmissibility, immigration detention and immigration appeals;
    2. Decisions of immigration officers regarding applications for permanent and temporary residence;
    3. Decisions regarding pre-removal risk assessment (PRRA)
    4. Decision regarding Humanitarian & Compassionate (H&C) application:
    5. Decisions of Ministers and their delegates concerning border and immigration matters.
    6. Decisions regarding immigration enforcement including removal from Canada.
    7. Judicial reviews of citizenship decisions.
    8. Refusal of permanent residency applications
    9. Certain spousal cases
    10. Refused work or study permits
    11. Refused visas
    12. Refused Humanitarian and Compassionate considerations applications

Should I Apply For a Judicial Review?

  1. A judicial review takes time and money and is not a decision to be taken lightly, but if you are serious about undertaking an application, then you will need to be aware of some of the key timeframes that apply. To begin with, you will need to file an application for leave and for judicial review at the Federal Court within 15 or 30 days of your written negative decision, depending on if it is an immigration or citizenship matter. From here, you have 30 more days to perfect your application and file an Application Record with all supporting arguments and documents. After reviewing the written arguments from all parties, the tribunal will decide whether or not to grant leave. If leave is granted, the Court sets a date for hearing of the application for judicial review / provides timelines for production of the tribunal record and filing by parties of any additional documents.
  2. Applying for a judicial review is not an appeal, and if you have the right to appeal or request a reconsideration, then your application for a judicial review will likely be declined. The court will wait until all these processes have been completed before they consider your application.
  3. It is recommended that you consult a lawyer as soon as possible after you receive your Tribunal decision to assess whether you have a case for a judicial review. It can be difficult to file without the advice of a professional lawyer.
  4. If you want to seek judicial review of a decision to the Divisional Court, you will need to keep some time frames in mind. There is now a thirty (30) daytime limit to get your application started in Ontario.
  5. At JSM LAW we have lots of experience with judicial reviews and we are committed to helping all of our clients through the process. We will provide support, guidance, and legal expertise to ensure that your application is heard and goes as smoothly as possible. If you are considering applying for judicial review, or you just want to understand the process and what it entails, then don’t hesitate to reach out to Jasmin Sandhu and find out more. Undertaking an application for judicial review will be much less complicated with the help of an experienced and committed lawyer!
 

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