The Top 5 Tips For Challenging A Tribunal Decision

• Published date: 18 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Torkin Manes LLP
• Author: Mr Marco P. Falco

Judicial review is a discretionary remedy.

Unlike an appeal, in which the Court takes its jurisdiction to review the tribunal's order pursuant to an express statutory right, judicial review asks the Court for relief by way of what were once known as the "prerogative writs", which include certiorari, mandamus and prohibition.

Under subsection 2(1)1 of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 (the "JRPA"), the Divisional Court can:

1. compel the tribunal or administrative body to perform a statutory duty (mandamus);
2. require that the tribunal cease certain action (prohibition); or
3. quash the tribunal's decision for not having been made properly (certiorari).

Given the extraordinary nature of the relief sought, lawyers and parties who have argued a proceeding at the tribunal level should wade carefully into the waters of judicial review. In this case, experience counts - mistakes can be fatal.

Below is a brief summary of the primary considerations any party should contemplate before embarking on judicial review.

1. Is the Application Premature?

Generally, the Divisional Court will discourage parties from fragmenting a tribunal decision mid-course and bringing a premature application for judicial review. However, "exceptional circumstances" may nonetheless justify early intervention.

In a recent decision of the Divisional Court, Bannis v. Ontario College of Pharmacists, 2020 ONSC 6115, the Court tied its reluctance to hear premature judicial review applications to concerns about administrative delay and respect for the delegation of decision-making authority to the tribunal:

.Normally, courts are reluctant to review interlocutory or interim steps in an administrative proceeding, preferring to wait until the proceeding has run its course in order to avoid fragmentation of the administrative process and delay, as well as to respect the legislative decision to confer decision-making authority on the administrative tribunal. Therefore, judicial review will be refused where the application is premature, unless there are exceptional circumstances: see Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 ["Volochay"] at para. 70. [emphasis added]

Accordingly, lawyers who seek a remedy mid-hearing should consider if the threshold of "exceptional circumstances" has been met.

2. Deference or No Deference?

If one of the bases for the judicial review application is substantive review or loss of jurisdiction, the standard of review by which the...