Top 5 Considerations Before Challenging A Tribunal Decision

• Published date: 14 December 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Immigration, Constitutional & Administrative Law, Trials & Appeals & Compensation, General Immigration
• Law Firm: Torkin Manes LLP
• Author: Mr Marco P. Falco

As a discretionary remedy, judicial review asks the court for relief by way of what were once known as the "prerogative writs," including certiorari, mandamus and prohibition.

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

(i) require the tribunal or administrative body to perform a statutory duty (mandamus);
(ii) require that the tribunal cease certain action (prohibition); or
(iii) quash the tribunal's decision (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.

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

1. The application may be premature.

The Divisional Court frowns upon parties who seek to fragment a tribunal decision mid-course by 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 emphasized that its reluctance to hear premature judicial review applications is based upon 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]

2. Will the tribunal's decision attract deference?

For substantive review of the tribunal's decision, the standard of review by which the court assesses that decision must be identified.

In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 sec 65, the Supreme Court of Canada established that Canadian courts should apply the deferential standard of "reasonableness" review in most cases of judicial review. Courts should only deviate from the presumption of reasonableness review, and apply the less deferential...