1. No category

JUDICIAL REVIEW FUNDAMENTALS
PAPER 2.1
Grounds and Issues⎯
How-To Tips, with a Focus on Federal Court
These materials were prepared by Gregory J. McDade, QC and Maegen Giltrow, both of Ratcliff & Company
LLP, North Vancouver, BC, for the Continuing Legal Education Society of British Columbia, January 2009.
© Gregory J. McDade, QC and Maegen Giltrow
2.1.1
GROUNDS AND ISSUES⎯HOW-TO
TIPS, WITH A FOCUS ON FEDERAL COURT1
I.
Pros and Cons of Judicial Review ........................................................................................ 2
A. Advantages of Judicial Review .............................................................................................. 2
B. Disadvantages........................................................................................................................ 2
II.
Basic Principles..................................................................................................................... 2
A. Jurisdiction............................................................................................................................ 2
B. Timing .................................................................................................................................. 3
C. Parties.................................................................................................................................... 3
III.
Relief .................................................................................................................................... 4
A. ‘Decision’ ............................................................................................................................... 4
B. The Nature of the Relief ......................................................................................................... 4
IV.
Grounds ............................................................................................................................... 5
A. Justiciability .......................................................................................................................... 5
B. Standard of Review ............................................................................................................... 6
V.
Drafting an Application ....................................................................................................... 6
A. Application and Affidavits.................................................................................................... 7
B. Documents............................................................................................................................ 8
C. Checklist ............................................................................................................................... 9
VI.
Appendix A⎯Statutory Excerpts⎯Federal Court Act and Rules ..................................... 11
VII.
Appendix B⎯Sample Timeline .......................................................................................... 17
VIII. Appendix C—Notice of Application................................................................................... 21
1
This paper does not deal with specialized areas of practice such as Immigration, Patents, etc. for which there
may be specialized rules and separate court rules or procedures.
2.1.2
I.
A.
Pros and Cons of Judicial Review
Advantages of Judicial Review
Why use Judicial Review compared to a Writ and Statement of Claim?:
B.
•
Relative speed
3-6 months compared to trial (2-3 years)
•
Affidavit evidence
no discovery; no messy witnesses
•
Declaratory relief
excellent for public policy or constitutional challenge to government or
administrative action, laws or policy
Disadvantages
The disadvantages of Judicial Review are largely the flip side of the advantages:
•
Upfront preparation⎯compared to a Writ (trial) the case must be largely prepared at
the time of filing
•
Limited discovery or cross-examination
based on documents and affidavits filed at the time of application
•
Ineffective for fact-finding or disputed facts
•
Relief⎯declaratory or quashing⎯no damages
•
Speed
ineffective as a threat or negotiating tool
II.
A.
Basic Principles
Jurisdiction
Judicial Review is ‘judicial review of administrative action.’ Thus, it is available, in general, only
against governmental or quasi-governmental bodies.
In Federal Court, jurisdiction is exclusive and mandatory in respect of relief against “a federal board,
commission, or other tribunal.” This should be contrasted with provincial Judicial Review under
s.2⎯where the focus is on the “exercise of a statutory power,” and is not necessarily mandatory (e.g.,
in BC, declaratory action may be brought by Writ, not Judicial Review, but in Federal Court, s. 18(1),
(3) mandates Judicial Review).
The exclusive jurisdiction of Federal Court can be problematic. One recent example is Chief Joe Hall
v. Canada (Attorney General), 2007 BCCA 133 where the BCCA dismissed an Application on the
grounds of exclusive jurisdiction of the Federal court. The questions of exclusive versus concurrent
jurisdiction are beyond the scope of this panel, but see also Canada (Attorney General) v. Law Society of
British Columbia, [1982] 2 S.C.R. 307 (Jabour), Canada (Labour Relations Board) v. Paul L’Anglias Inc.,
[1983] 1 S.C.R. 147, and Lavers v. British Columbia (Minister of Finance) (1989), 64 D.L.R. 4th 193
(B.C.C.A.).
Section 28 of the Federal Court’s Act provides that the Federal Court of Appeal has exclusive
jurisdiction to hear Judicial Review in respect of the listed federal boards and tribunals (e.g., CRTC,
NEB, Canadian Transportation Agency, etc.).
2.1.3
B.
Timing
In Federal Court, the 30 day limitation is very important (unlike BC where there are either no specific
time limits under the JRPA or timelines are set by the Administrative Tribunals Act). Extensions of
time in Federal Court are not routinely granted and involve a substantial and separate Application.
Note that the time involved runs from the date the Order was “first communicated…to the party
directly affected by it” which can sometimes be an important qualification.
s. 18.1(2) An application for judicial review in respect of a decision or an order of a
federal board, commission or other tribunal shall be made within 30 days after the
time the decision or order was first communicated by the federal board, commission
or other tribunal to the office of the Deputy Attorney General of Canada or to the
party directly affected by it, or within any further time that a judge of the Federal
Court may fix or allow before or after the end of those 30 days.
In Federal Court as distinct from BCSC, it should be noted the registry actively prevents you from
filing when time is out as compared to the respondent pleading it as a defence in BCSC.
A sample time line from a recent fairly complex case is attached as an example of the various timelines
that follow in Federal Court.
C.
Parties
Some care should be taken in selecting the parties.
In the Federal Court, it is usual to name the “Attorney General of Canada” in actions against the
Crown or statutory relief. In BC, the Attorney General of Canada must be served with the Notice of
Application (s. 16 JRPA) and is entitled to be a party, but is not necessarily named. My practice is
generally to name the Attorney General in any action against government, ministers or statutory
tribunals. In Federal Court, it is normal to name the Attorney General of Canada and not the tribunal
(Rule 303(2)). The Court has the power under Rule 303(3) to substitute the tribunal in place of the
Attorney General.
Rule 303(1) requires an applicant to name as a Respondent every person “directly affected by the
Order sought in the Application.” In actions against a Minister or a specific decision-maker, it is usual
to name those persons. The identity of the ‘applicant’ is determined by the test of “anyone directly
affected” in s. 18.1. Courts have been somewhat flexible on this test, although this will depend on the
nature of the decision, and whether there was someone who is a ‘party’ to the decision. A standing
can also be obtained through ‘public interest’ standing (Barowski v. Canada (Attorney General), [1989] 1
S.C.R. 3 42, Findlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, Canadian Council of Churches
v. Canada, [1992] 1 S.C.R. 236). In some instances, the line between public interest standing and party
can be a confusing one. It is possible to plead both. Pleadings should be statements about the grounds
alleged for ‘directly affected.’
In Federal Court it is necessary to join as a respondent every person directly affected, other than the
tribunal. If challenging a permit or decision relating to another party, it clearly includes that party.
Failure to name and serve a necessary party may result in the proceeding being struck.
As to the Tribunal under review, the practice in Federal court is not to name the tribunal itself (except
where the tribunal is a Minister). Naming of the tribunal seems to be common in BCSC practice. In
Federal Court, it is considered improper or unusual for the tribunal to appear at the hearing itself in an
advocacy role. If it appears at all, it must apply, and should limit its submissions to explanatory ones
about its process or statute, and not the merits of the application.
2.1.4
III. Relief
18(1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of
mandamus or writ of quo warranto, or grant declaratory relief, against
any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in
the nature of relief contemplated by paragraph ( a), including any
proceeding brought against the Attorney General of Canada, to obtain
relief against a federal board, commission or other tribunal.
Judicial review arises from the old prerogative writs of certiorari, prohibition, mandamus etc. but in
recent years has largely become based upon a statutory focus. The old case-law is still helpful in
determining whether a case is appropriate for judicial review, and in determining the relief to be
sought.
Form 301 (in Federal Court) requires a statement of the precise relief sought. Whether in provincial or federal
court for Judicial Review, it is important to clearly determine the relief being sought Failing to be specific or
to properly frame the relief can be fatal to the whole application. Some considerations:
•
Declaratory relief, exactly what should the declaration be [consider a number of alternatives]
-
A.
consider whether there is relief that might “fan out” from the decision (e.g., the
Court is asked not only to make the main declaration about the initial decision, but
to grant relief in respect of actions which flowed from the decision (like entry into
consequential contracts, etc.);
•
Do you seek to quash a decision, or to remit for reconsideration? (and, in whole or in part?)
•
Do you wish to attack the jurisdiction or the make-up of the decision-maker?
•
Are there constitutional issues that arise (and do you need to issue a Notice of Constitutional
Question)? Do you want a declaration of invalidity, or just constitutional inapplicability?
•
Prohibition or an interim or permanent stay or injunction?
•
Do you want to include a ‘basket clause’ (“any other such relief the court may deem…” etc.)?
‘Decision’
It can sometimes be difficult to know which decision to challenge or what constitutes a ‘decision.’ This is
more important in Federal Court than in BCSC.
Rule 302 provides that an Application shall be limited to “a single Order,” unless the Court otherwise orders.
It can be difficult to know whether an Order is an Interim Order, a decision, or a step towards a decision.
Identification of the wrong decision can be fatal. See Leighton et al v. Canada (2006), F.C. 1129 where the
Court found that, while the Crown had breached its legal duties, the Applicant was not entitled to an Order
until it challenged an earlier or a later decision⎯which then required a subsequent Application for an
Extension of Time. However, a later judge (Lemieux J.) in the subsequent case held that it had been a
decision, and that a ‘decision’ was not necessary if it were a matter in which relief was sought against a federal
board or tribunal (Leighton et al v. Canada (2007), F.C. 553). See also Krause v. Canada (1999), 2 F.C. 476
(C.A.).
B.
The Nature of the Relief
In general, the focus of jurisdiction and relief in federal court is on the nature of the decision maker (18(1)(a),
whereas in BC it is on the nature of the relief sought (“in relation to the exercise of a statutory power”).
2.1.5
The wide nature of s. 18(1)(b)⎯“any application or other proceeding for relief in the nature of relief
contemplated by paragraph (a)”⎯suggests that the Act intended to include all types of Judicial Review
involving the federal government. In Gestion Complexe (1989) Inc. v. Canada (Minister of Public Works and
Government Services) (1995), 1 F.C.J. 735, the FCA says:
What appears from this important amendment is that Parliament did not simply make the
Federal Government in the traditional sense subject to the Judiciary, but intended that
henceforth very little would be beyond the scope of Judicial Review.
However, many Federal Court proceedings continue to be technical battlegrounds around the nature of the
decision and the nature of the relief.
IV. Grounds
A.
Justiciability
Judicial Review is not a cure-all. Not all aspects of government policy are open to review by the
Courts. Issues are non-justiciable if there are no objective legal or statutory principles to apply. Pure
policy decisions may be beyond the reach of the courts, except on Charter of Rights grounds (Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, Turp v. Canada, 2003 FCT 301, Moresby Explorers
Ltd. v. Canada (AG), 2001 FCT 780; but see Jada Fishing Co. v Canada (Min. of Fisheries & Oceans), 2002
FCA 103 (non-reviewable recommendations to a Minister reviewable as part of the Minister’s
decision), and Huu-ay-aht First Nations v. British Columbia (Minister of Forests), 2005 BCSC 697 (nonstatutory policy for statutory allocations reviewable under JRPA)).
The general grounds for proper Judicial Review usually come under the following headings:
(a)
Jurisdictional error or constitutional invalidity
(b)
Error of law
(c)
Breach of natural justice of procedural fairness
(d)
Erroneous findings of fact.
(e)
Bias
These headings roughly correspond to the statutory structure of s. 18.1(4) of the Federal Court Act, but
would be the same headings as counsel would consider under the provincial JRPA:
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the
federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to
exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error
appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in
a perverse or capricious manner or without regard for the material before
it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Practice Tip: If at all possible, counsel should attempt to craft a Judicial Review argument as an ‘error
of law or jurisdiction.’ The duty of deference and standard of review (see below) make it extremely
unlikely that Courts will overturn a tribunal’s decision based on erroneous findings of fact or
2.1.6
arguments of policy. In many cases, it is possible to frame a policy argument or a factual dispute as
one of steps to interpretation, jurisdiction or error of law.
For instance, in both GRK Fasteners v. Leland Industries Inc. (2006), 55 Admin L.R. (4th) 175, 2006 FCA
118 and Canada (AG) v. Sketchley, 2005 FCA 404, the Court found that ‘procedural fairness’ questions
can be a question of law. In Canada (Dir. Of Investigation) v. Southam Inc., [1997] 1 S.C.R. 748, the
SCC stated that it is an error of law for a tribunal to ignore evidence that the law requires it to
consider.
If counsel cannot clearly identify a tribunal or public policy error as one relating to statutory or
constitutional error, then the Courts will likely decline to interfere with the decision, and in the case
of a question of justiciability, may decline to hear the matter at all.
B.
Standard of Review
The question of ‘the standard of review’ that a court will apply to a Judicial Review of an
administrative decision is one of the most complicated questions in administrative law, and beyond the
scope of this paper. However, it arises in almost every Judicial Review Hearing.
Fortunately, in Dunsmuir v. New Brunswick, 69 Admin. LR 4th 1, 2008 SCC 9, the Supreme Court of
Canada has (again) reconsidered its approach to standard of review, and summarized previous case law.
This simplifies a complex area of the law, and there are now only two standards of
review⎯reasonableness and correctness. This case represents ‘one stop shop’, for the time being.
Terms such as ‘patent unreasonableness’ and the ‘pragmatic and functional approach’ are, at least
temporarily, banished from Judicial Review in Federal Court (Note: in Provincial Courts, the
Administrative Tribunals Act is still relevant.)
Familiarity with the standard of review, however, is a critical part of the strategic determination for
how to plead a case from an Applicant’s perspective. Whenever possible, an applicant should attempt
to phrase an issue as one of law⎯which attracts a standard of correctness⎯rather than one of fact or
policy, which, on the reasonableness standard, requires deference from the reviewing court. In many
cases (unfortunately, not all), a decision or finding by the tribunal under review can be categorized as
arising from a misunderstanding of law instead of one of fact.
This is not just a matter of argument⎯it goes to the heart of how the Application is case, the relief
that is sought in the Application, and the’ grounds’ to be set out in the Application, as well as the way
in which the facts in the affidavit are laid out.
On the other hand, counsel for a decision-maker or other respondent will wish to lay out their
Affidavit and Argument focusing on the dispute being a factual one, or reliant on the expertise of the
tribunal. ‘Deference’ is a respondent’s best friend.
The question of a privative clause, if present in the tribunal’s statute, still remains a very problematic
hurdle for applicant’s counsel, which requires more detailed legal research where it arises. Where a
privative clause exists, finding a way to cast the case as jurisdictional error is almost always advisable.
V.
Drafting an Application
Judicial Review proceedings, when completed, generally consist of:
(a)
The Petition (BCSC) or Application (Federal Court);
(b)
The applicant’s Affidavit or Affidavits;
(c)
The respondent’s Affidavits;
(d)
The applicant’s and respondent’s Memorandums of Fact and Law.
2.1.7
Note: In Federal Court, there is also an automatic right of cross-examination on the Affidavits (not so
in BCSC). This right of cross-examination is often not used, partly because of time considerations or
the lack of factual disputes, but also for advocacy reasons. Note: The transcripts of cross-examination
automatically become part of the Record, which is often a mixed blessing.
In Federal Court there is a formal filing of a document called the Record by each of the Applicant and
respondent which includes the above material and forms the basis of the Hearing. The contents of
applicant’s Record are set out at Rule 309.
Note that in Federal Court, the Record must contain the applicant’s Memorandum of Fact and Law.
This is quite different from BCSC practice, where legal arguments are generally filed shortly before (or
at) the Hearing.
It is these documents together that then become the whole of evidence and pleadings upon which the
Hearing proceeds. Although this can be a neat and tidy bundle, counsel must design their submissions
so that they are happy with this package.
In BCSC, the Petition and supporting Affidavit must be filed together. In Federal Court, the
supporting Affidavit can be filed later⎯within 30 days. (This can sometimes be helpful when time is
of the essence in filing the Application to meet the limitation deadline while facts are still being
gathered.)
One important practice difference in Federal Court vs. BCSC is the question of further Affidavits. In
Federal Court, once the Record is filed, it is quite difficult to bring forward further affidavits, and
would require an application to the court to allow for such filing, and would take very good reasons.
In BCSC, the onus is reversed⎯although the Rules provide for filing deadlines, they are often ignored
and the Registry accepts late-filed affidavits, and it is then up to the opposing party to challenge the
filing. It is, therefore, not uncommon in BC to see affidavits dribbling in from both sides until shortly
before the Hearing (although this could not be considered good practice⎯see Rule 10(8)).
A.
Application and Affidavits
The required contents and form of an Application are set out in Form 301 (attached). In BC the
Petition is set out in Form 3 of the Rules of Court. Appendix C is an example of a Federal Court
Petition.
In the context of these documents, the Application in Federal Court (in BCSC the Petition) is best
seen as fulfilling the role of Pleadings, such as a Statement of Claim. The supporting affidavit(s) should
be seen as fulfilling the role of the plaintiff’s evidence. Obviously, there is a possibility of duplication.
The practice question that often arises is ‘How much of the facts to put in the Application?’
This is primarily a question of advocacy. Strictly speaking, the Form 301 Application calls for a
statement of the ‘grounds to be argued’ (not facts), whereas the Form 3 Petition calls for a statement of
the ‘facts upon which this Petition is based’ (not grounds), but in practice, it is a good idea to treat
these as if they were the same.
Just as the general rule of thumb in Pleadings is to ‘plead facts not law’ and ‘plead facts not evidence,’
there should be a difference between the statements of grounds/facts in the Application/Petition and
the Affidavits. In general, the Affidavits should be more detailed and specific around letters, meetings,
etc., whereas the Application/Petition can contain more conclusory facts.
Pursuant to Rule 301, the Application must contain “a complete and concise statement of the grounds
intended to be argued” and “a list of the documentary evidence to be used at the hearing.” In many
instances, “complete” and “concise” might appear to be mutually exclusive goals.
The practice of some counsel is to put a very short statement of the facts in the Petition/Application,
with a lengthy supporting Affidavit; others will use a lengthy statement of the facts in the
2.1.8
Petition/Application with a very short Affidavit confirming ‘the fact in the Petition are true,’ and
many will use a ‘cut and paste’ approach to duplicate the facts in both.
Practice Tip: In our view, the right approach is one that maximizes advocacy, and may vary with the
nature of the facts and the situation. Given that the Application is likely the first document read by
the judge before Hearing, counsel should ensure there is a sufficient, clear and persuasive outline of the
facts. Too much detail at this stage can interfere with persuasiveness. Then, the Affidavit could be
sufficiently different, and more detailed, so as to support the conclusory statements in the Application.
Simple ‘cut and paste’ repetition has limited value in advocacy. However, if the Application includes
facts phrased differently than the Affidavit, it is important to ensure that the Affidavit supports those
statements of fact.
B.
Documents
In many, if not most, cases of Judicial Review, your case will not be made either by the facts in the
Application or the evidence contained in the body of the Affidavit. Most cases turn on the documents
that are included in the Record, as part of the exhibits to the supporting Affidavit. In fact, in many
cases, the primary purpose of the supporting Affidavit will simply be to list the documents.
In Federal Court, the Application itself must include “a list of the documentary evidence to be used at
the Hearing” (Rule 301(f)). There is no equivalent rule in BCSC, but given that the supporting
Affidavit which will include all of those exhibits is served with the Petition, it serves the same
function.
Admissibility of documents in a Judicial Review Application is not often a major issue. Documents
fall generally into two types:
(a)
documents that were before the tribunal or decision-maker in the course of the
decision or as part of the process; and
(b)
documents not known to the decision-maker, but relevant to the legal arguments.
Documents of type (a) are generally admissible, simply as part of the narrative or as relevant to the
decision. Any problems that arise with documents are usually of type (b).
The admissibility of documents type (b) will turn substantially upon the ground for Judicial Review.
In constitutional or jurisdictional matters which are ‘upstream’ of the decision-maker, there is a wider
latitude. In matters of ‘error of law on the face of the record’ or allegations of erroneous factual
findings, courts are more likely to refuse admission of such additional documents.
Practice Tip: for this reason, wise counsel (if consulted beforehand) will ‘set up’ the Judicial Review
proceeding by ensuring that the necessary evidence is put before the decision-make in a form desirable
for court, prior to the decision. Issues such as expert reports, authenticity of documents, hearsay,
truth of the facts therein, etc. can generally be avoided by ensuring that they are documents of type (a),
rather than type (b).
Note: in many cases against government, the respondent government or agency will ‘fill in’ the record
and produce substantially more documents. Of course, you cannot count on this⎯you should be able
to make the case based upon your own documentary record. But it is not unusual to see much of the
Applicants argument at a Hearing be based upon the Affidavits and Record produced by the
respondent. Note that Rule 317 in Federal Court allows you to request material from the Tribunal and
Rule 318 requires the Tribunal to produce it within 20 days. If the AG or tribunal is a party, it is often
not necessary to use that Rule, but it is worth consideration in any application.
2.1.9
C.
Checklist
Every Federal Court Application should include the following:
•
Form 301, Notice of Application;
•
Set out the federal board, commission or other tribunal from which review is
sought.
•
Set out the date of the decision: time limit for bringing Judicial Review is 30 days
from date of communication of the decision (s. 18.1(2)).
•
Set out the details of the decision, order or other matter: be clear and particular
about the impugned action for which judicial review is sought—its impact upon the
applicant should be clear from this description.
•
Set out the relief sought: limited by the exclusive original jurisdiction of the Court (s.
18) and the powers of the Federal Court (s. 18.1(3)).
•
Set out the grounds for the application (s. 18.1(4)):
1.
Establish the applicant’s standing: who they are and how they come under the
jurisdiction of the tribunal or are affected by the decision of the tribunal
(“anyone directly affected by the matter in respect of which relief is sought” S.
18.1(1));
2.
Set out the relevant statutory provisions under which the tribunal purported
to act or executive power exercised by the Minister.
•
Set out all relevant statutory provisions, including those that may form the basis of
the purported error for which review is sought (If appropriate, include legislative
history).
•
Set out concisely the nature of the issue and the essential “facts” to the application.
“Facts” in the context of Judicial Review are those components of the Record that are
relevant to establishing where the legal error lies.
•
Set out the ground(s) upon which the applicant seeks the relief. The Court’s
jurisdiction comes from s. 18.1(4), which sets out the grounds upon which the Court
can grant relief. This also requires turning to the common law (e.g. for the standard of
review) to establish what is “contrary to law.”
2.1.11
VI. Appendix A⎯Statutory Excerpts⎯Federal Court Act and Rules
FEDERAL COURT ACT, R.S. 1985, c. F-7
Extraordinary
remedies, federal
tribunals
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
( a) to issue an injunction, writ of certiorari, writ of prohibition, writ of
mandamus or writ of quo warranto, or grant declaratory relief, against any federal
board, commission or other tribunal; and
( b) to hear and determine any application or other proceeding for relief in the
nature of relief contemplated by paragraph ( a), including any proceeding brought
against the Attorney General of Canada, to obtain relief against a federal board,
commission or other tribunal.
…
Remedies to be
obtained on
application
(3) The remedies provided for in subsections (1) and (2) may be obtained only on
an application for judicial review made under section 18.1.
Application for
18.1 (1) An application for judicial review may be made by the Attorney General
judicial review of Canada or by anyone directly affected by the matter in respect of which relief is
sought.
Time limitation
Powers of
Federal Court
(2) An application for judicial review in respect of a decision or an order of a
federal board, commission or other tribunal shall be made within 30 days after the
time the decision or order was first communicated by the federal board, commission
or other tribunal to the office of the Deputy Attorney General of Canada or to the
party directly affected by it, or within any further time that a judge of the Federal
Court may fix or allow before or after the end of those 30 days.
(3) On an application for judicial review, the Federal Court may
( a) order a federal board, commission or other tribunal to do any act or thing it
has unlawfully failed or refused to do or has unreasonably delayed in doing; or
( b) declare invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal
board, commission or other tribunal.
Grounds of
review
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
( a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise
its jurisdiction;
( b) failed to observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
( c) erred in law in making a decision or an order, whether or not the error
2.1.12
appears on the face of the record;
( d) based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
( e) acted, or failed to act, by reason of fraud or perjured evidence; or
( f) acted in any other way that was contrary to law.
Defect in form
or technical
irregularity
(5) If the sole ground for relief established on an application for judicial review is
a defect in form or a technical irregularity, the Federal Court may
( a) refuse the relief if it finds that no substantial wrong or miscarriage of justice
has occurred; and
( b) in the case of a defect in form or a technical irregularity in a decision or an
order, make an order validating the decision or order, to have effect from any
time and on any terms that it considers appropriate.
Rules
301. An application shall be commenced by a notice of application in Form 301,
setting out
(a) the name of the court to which the application is addressed;
(b) the names of the applicant and respondent;
(c) where the application is an application for judicial review,
(i) the tribunal in respect of which the application is made, and
(ii) the date and details of any order in respect of which judicial review is
sought and the date on which it was first communicated to the
applicant;
(d) a precise statement of the relief sought;
(e) a complete and concise statement of the grounds intended to be argued,
including a reference to any statutory provision or rule to be relied on;
and
(f) a list of the documentary evidence to be used at the hearing of the
application.
302. Unless the Court orders otherwise, an application for judicial review shall be
limited to a single order in respect of which relief is sought.
303. (1) Subject to subsection (2), an applicant shall name as a respondent every person
(a) directly affected by the order sought in the application, other than a
tribunal in respect of which the application is brought; or
(b) required to be named as a party under an Act of Parliament pursuant to
which the application is brought.
Application for judicial review
(2) Where in an application for judicial review there are no persons that can be named
under subsection (1), the applicant shall name the Attorney General of Canada as a
respondent.
Substitution for Attorney General
(3) On a motion by the Attorney General of Canada, where the Court is satisfied that
the Attorney General is unable or unwilling to act as a respondent after having been
named under subsection (2), the Court may substitute another person or body,
including the tribunal in respect of which the application is made, as a respondent in
the place of the Attorney General of Canada.
2.1.13
306. Within 30 days after issuance of a notice of application, an applicant shall serve
and file its supporting affidavits and documentary exhibits.
…
308. Cross-examination on affidavits must be completed by all parties within 20 days
after the filing of the respondent's affidavits or the expiration of the time for doing so,
whichever is earlier.
…
309. (1) An applicant shall, within 20 days after completion of all parties' crossexaminations or the expiration of the time for doing so, whichever is earlier,
(a) serve the applicant's record; and
(b) file
(i) where the application is brought in the Federal Court, three copies of
the applicant's record, and
(ii) where the application is brought in the Federal Court of Appeal, five
copies of the applicant's record.
Contents of applicant's record
(2) An applicant's record shall contain, on consecutively numbered pages and in the
following order,
(a) a table of contents giving the nature and date of each document in the
record;
(b) the notice of application;
(c) any order in respect of which the application is made and any reasons,
including dissenting reasons, given in respect of that order;
(d) each supporting affidavit and documentary exhibit;
(e) the transcript of any cross-examination on affidavits that the applicant has
conducted;
(f) the portions of any transcript of oral evidence before a tribunal that are to
be used by the applicant at the hearing;
(g) a description of any physical exhibits to be used by the applicant at the
hearing; and
(h) the applicant's memorandum of fact and law.
310. (1) A respondent to an application shall, within 20 days after service of the
applicant's record,
(a) serve the respondent's record; and
(b) file
(i) where the application is brought in the Federal Court, three copies of
the respondent's record, and
(ii) where the application is brought in the Federal Court of Appeal, five
copies of the respondent's record.
Contents of respondent's record
(2) The record of a respondent shall contain, on consecutively numbered pages and in
the following order,
(a) a table of contents giving the nature and date of each document in the
record;
(b) each supporting affidavit and documentary exhibit;
(c) the transcript of any cross-examination on affidavits that the respondent has
conducted;
(d) the portions of any transcript of oral evidence before a tribunal that are to
be used by the respondent at the hearing;
(e) a description of any physical exhibits to be used by the respondent at the
hearing; and
2.1.14
(f) the respondent's memorandum of fact and law.
317. (1) A party may request material relevant to an application that is in the
possession of a tribunal whose order is the subject of the application and not in the
possession of the party by serving on the tribunal and filing a written request,
identifying the material requested.
Request in notice of application
(2) An applicant may include a request under subsection (1) in its notice of application.
Service of request
(3) If an applicant does not include a request under subsection (1) in its notice of
application, the applicant shall serve the request on the other parties.
318. (1) Within 20 days after service of a request under rule 317, the tribunal shall
transmit
(a) a certified copy of the requested material to the Registry and to the party
making the request; or
(b) where the material cannot be reproduced, the original material to the
Registry.
Objection by tribunal
(2) Where a tribunal or party objects to a request under rule 317, the tribunal or the
party shall inform all parties and the Administrator, in writing, of the reasons for the
objection.
Directions as to procedure
(3) The Court may give directions to the parties and to a tribunal as to the procedure
for making submissions with respect to an objection under subsection (2).
Order
(4) The Court may, after hearing submissions with respect to an objection under
subsection (2), order that a certified copy, or the original, of all or part of the material
requested be forwarded to the Registry.
2.1.15
FORM 301- Rule 301
NOTICE OF APPLICATION
(Court seal)
NOTICE OF APPLICATION
TO THE RESPONDENT:
A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant
appears on the following page.
THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial
Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the
applicant. The applicant requests that this application be heard at (place where Federal Court of Appeal
(or Federal Court) ordinarily sits).
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application
or to be served with any documents in the application, you or a solicitor acting for you must prepare a
notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant's
solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served
with this notice of application.
Copies of the Federal Courts Rules information concerning the local offices of the Court and other
necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone
613-992-4238) or at any local office.
IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR
ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
(Date)
Issued by:_____________________________________
(Registry Officer)
Address of local office:__________________
TO: (Name and address of each respondent)
(Name and address of every other person required to be served)
(Separate page)
APPLICATION
(Where the application is an application for judicial review)
This is an application for judicial review in respect of
(Identify the tribunal.)
(Set out the date and details of the decision, order or other matter in respect of which judicial review is
sought.)
The applicant makes application for: (State the precise relief sought.)
The grounds for the application are: (State the grounds to be argued, including any statutory
provision or rule relied on.)
This application will be supported by the following material: (List the supporting affidavits,
2.1.16
including documentary exhibits, and the portions of transcripts to be used.)
(If the applicant wishes a tribunal to forward material to the Registry, add the following paragraph:)
The applicant requests (name of the tribunal) to send a certified copy of the following material that
is not in the possession of the applicant but is in the possession of the (tribunal) to the applicant and to
the Registry: (Specify the particular material.)
(Date)
______________________________
(Signature of solicitor or applicant)
(Name, address, telephone and fax number of solicitor or applicant)
SOR/2004-283, ss. 35 and 38
2.1.17
VII. Appendix B⎯Sample Timeline
(from Reece et al v Min. of Transport et al)
#
A.
Date
Oct. 25, 2005
Action
Notice of Application
filed
Fed Ct. Rule
R301
B.
Oct. 26, 2005
Crown Respondents
served with Notice of
Application by Federal
Court Registry
Rule 133 - grants
service on
Ministries (by
filing 2 copies with
Registry)
Yes
C.
Oct. 28, 2005
Port served with Notice
of Application via LAC
R304(1)-service
w/in 10 days of
issuance (Oct.
25/05)
Yes
D.
Nov. 7, 2005
Port
R304(3)- proof of
service filed w/in
10 days of service
Yes
E.
Nov. 4, 2005
Notices of Appearance
received from Crown
Respondents?
R305 – served and
filed w/in 10 days
(Nov. 4/05) after
being served
Yes
F.
Nov. 4, 2005
Notice of Appearance
received from Port?
R305 - served and
filed w/in 10 days
Yes
G.
Oct. 25, 2005
Request for Material from
Tribunal
R317
Yes
Nov. 14, 2005
H.
Nov. 24, 2005
Applicant’s Affidavits &
Documents
I.
December 22,
2005
Crown letter on
documents issue
J.
January 13,
2005
Court letter seeking
submissions re: Crown’s
request
K.
January 23,
2005
Applicant letter,
submissions opposing
Crown’s request
Notes/To Do
Done?
Yes
R318 – Material
must be received
within 20 days of
service of Notice
(Nov 14)
Rec’d Dec. 15, 2005
Yes
R306 – served and
filed w/in 30 days
of issuance of
Notice of App
Bryant: Nov 24
Reece and Leighton:
Served Nov 28, filed
with consent Dec 9
Yes
Yes
2.1.18
#
L.
Date
January 27,
2006
(Jan 9 + 17
day
Christmas
Break)
Action
Respondents Affidavits &
Documents
Fed Ct. Rule
R307 – served and
filed within 30 days
after service of
App’s Affidavits
M.
Feb 1: PORT
(assuming
filed same day
we were
served)
Cross-Examination on
Affidavits
R308 – must take
place w/in 20 days
of filing of
Respondent’s affs
Notes/To Do
-when we receive
each affidavit,
consider whether we
want to crossexamine – organize
to take place w/in 20
days of receipt
Done?
Yes: Port
Jan 12,
2005
Yes: DOJ
Jan 16
PORT
Jan. 31
Feb 6: DOJ
N.
Feb 9 –
CROWN to
submit dates
to Registry
Set date for hearing
submissions re: Crown
interim Motion on
documents
Set date
O.
Feb 16, 2006
Fed Ct telephone
conference re: Crown
document Motion
Proceeding moved to
special management
due to Crown
motion
P.
April 13 2006
Applicant letter to Court
for hearing date
Yes
Q.
May 9, 2006
Hearing (Crown motion)
Yes
R.
June 5, 2006
Determination
Yes
S.
June 15, 2006
Submissions on next steps
Made by applicants
by letter with
consent of all counsel
August 29th follow
up call to Fed Ct by
Applicants
September 22 2006
Applicants letter to
Fed Ct requesting an
order on next steps
T.
November 16
2006
Case management
conference
Nov 17 2006
ORDER
March 8 –
Crown to
file motion
March 18
– We file
respondent
materials
to motion
Yes
2.1.19
#
U.
Date
Dec. 4, 2006
Action
Applicant’s Motions re
cross-examination and
other interlocutory
matters must serve and
filed
Fed Ct. Rule
Notes/To Do
V.
Dec. 22, 2006
Respondent serve all
parties with aff. materials
in opposition to A’s
motions
Yes
W.
Dec. 22 2006
Respondents shall serve
and file their motion and
supp. aff
Yes
X.
Jan. 22 2007
Applicant shall serve and
file on Resp. its
responding motions to
Res. motions
Yes
Y.
Jan. 26 2007
Cross-exam on all aff.
filed or served in relation
to all motions
Z.
Feb. 9 2007
Respondent to serve and
file completed motion
records in relation to
App. motions
AA.
Feb. 9 2007
All parties to serve and
file supp. or amended
written representations to
all motions
BB.
Feb. 15 2007
Parties to ensure
transcripts of cross-exam
are filed with court
CC.
FEB. 26-28,
2007
Hearing on Interlocutory
Motions
Abeyance judicial case
management
on restricted
interp.
Applicant’s Record
R309 – serve & file
w/in 20 days of
earliest of cross-x
or expiration of
time for cross-x
-prepare Applicant’s
record
Respondent’s Record
R310 – serve & file
w/in 20 days of
service of
Applicant’s record
-when Respondent’s
record is received –
request hearing date
DD.
EE.
FF.
Done?
Yes
2.1.20
#
Date
GG.
Action
Requisition for Hearing
Date
Fed Ct. Rule
R314 – serve & file
within 10 days of
earliest of service of
Respondent’s
record or
expiration of time
HH.
Pre-Hearing Conference
R315 – Court may
order
II.
Status Review
R380(1)(b) – held if
180 days have
elapsed since
issuance of Notice
of Application if no
hearing date has
been requested
Notes/To Do
Done?
2.1.21
VIII. Appendix C—Notice of Application
2.1.22
2.1.23
2.1.24
2.1.25
2.1.26
2.1.27
2.1.28
2.1.29
2.1.30