Articles
<< back to all ArticlesWhat is Judicial Review?
Judicial review of administrative action and decision making is a core part of Canadian public law. Judicial review is the primary way courts “ensure the legality of state decision making”.[1] Where government acts unlawfully, parties can use judicial review to challenge and potentially overturn these unlawful decisions. This blog post provides a basic overview of the fundamentals of judicial review in Canada.
At its core, judicial review is about ensuring that those exercising state power only do so in lawful ways. All government action must be authorized by law: the Constitution, statutes, and the common law all constrain how government officials may use their power. Put differently, judicial review is one way that courts enforce the rule of law:
In judicial review, the reviewing courts are in the business of enforcing the rule of law, one aspect of which is “executive accountability to legal authority” and protecting “individuals from arbitrary [executive] action”. Put another way, all holders of public power are to be accountable for their exercises of power, something that rests at the heart of our democratic governance and the rule of law.[2]
Not all government actions or decisions can be judicially reviewed. Only decisions involving the exercise of state authority and with a “sufficiently public character” are subject to judicial review. For example, the hiring and firing of employees by public bodies are not usually subject to judicial review because they do not involve the exercise of public power. These kinds of decisions “do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority”.[3]
Another difference between judicial review and private law is that judicial review is discretionary: courts are never required to give you a remedy, even if your argument has merit. For example, courts sometimes deny judicial review applications because there were other ways the aggrieved person could get a remedy. Parties are generally expected to exhaust all other avenues to address their concern before seeking judicial review.
There are two types of judicial review of government decision making: review of the merits (or substance) of a decision and review of the way the decision-maker reached a decision (procedural review). In substance review, the court reviews the outcome. Depending on the type of decision, the court will either ask if the decision was “reasonable” or if it was “correct”. If the decision was “unreasonable” or “incorrect”, the court may grant a remedy. Procedural review asks whether the procedure used to reach a decision was unfair or faulty. Both statute and the common law inform what procedural rights parties have before decision-makers. Where the decision-maker failed to provide a procedural right the law required them to provide, judicial review may provide a remedy.
The remedies available in judicial review differ from those in private law. In private law claims, the typical remedy is damages: money to compensate the plaintiff for their loss. Damages are not usually available in judicial review. Instead, the primary remedy is quashing or overturning the government decision and requiring the decision maker try again (sometimes called “certiorari”). In other cases, the court may declare that the decision-maker has committed an error or require the decision-maker to do (or not do) something specific.
Judicial review is an important part of the Canadian legal landscape. It helps ensure that government acts within its legal limits and exercises its powers in accordance with the Constitution and the rule of law:
By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.[4]
[1] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 at para 13.
[2] Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at para 78, leave to appeal to SCC dismissed (May 2, 2019) 38379 [citations omitted].
[3] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 at para 14.
[4] Dunsmuir v New Brunswick, 2008 SCC 9 at para 28.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
