Some Judicial Discretions in
Judicial Review Proceedings
Originally produced
for the CIAJ Judicial Seminar,
“Judicial Review
and Judicial Discretion” on
David Stratas, Heenan Blaikie LLP
dstratas@heenan.ca – (416) 643-6846 – (416) 360-8425
(fax)
***
This document can be found at http://www.davidstratas.com/adminjun8.html
Most of the cases listed are linked
to full text copies of the cases online, primarily at http://www.canlii.org
or official court websites. This document
may be amended from time to time, so please feel free to visit often.
This document was updated on
The cases listed are not meant to be anywhere
near exhaustive of the case law on point.
I have listed key cases, i.e., cases that set out the foundational principles
for the topic, and some recent cases that contain rich discussions of the topic
or that are themselves good repositories of relevant case law.
Comments, questions or suggestions
(particularly important cases I am missing): please
contact me.
***
Index
(click on the link and
you will be taken to the relevant section)
Adequacy of alternative remedy
Admissibility of evidence in the
judicial review
Dismissal (summary) of judicial
review with no hope of success
Interlocutory tribunal decisions,
judicial reviews of
New
issues in the judicial review (issues that were not before the tribunal),
discretion to consider
Referral of matter to Federal
Court
Relitigation:
res judicata,
issue estoppel, collateral attack and abuse of
process
Remedial discretions (additional terms in orders, damage awards, structural injunctions, costs)
Severance
of Issues in the judicial review
Stay of judicial review that is
related to other proceedings
Tribunal decisions, stays of,
pending judicial review
Tribunal disclosure obligations on
judicial review; production orders; subpoenas
Tribunal participation in the
judicial review
Writing reasons supporting an
exercise of discretion
Canadian Council of Churches v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236
Vriend v. Alberta, [1998] 1 S.C.R. 493
Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157
York Advertising Ltd. et al. v. Human
Rights Commission
(Ont.) et al. (2005), 197 O.A.C. 185 (Div. Ct.)
(standing to apply for judicial review; non-party before tribunal permitted to
apply given significant impact of the decision on that individual)
Partridge v. Technical Standards and
Safety Authority (2005), 195 O.A.C. 71 (Div. Ct.)
(affected parties should have been added as respondents in judicial review)
Citizens Mining Council of Newfoundland & Labrador Inc. v. Canada (Minister of the Environment) (1999), 163 F.T.R. 36 (Fed. T.D.)
Harris v. Canada, [2000] 4 F.C. 37 (F.C.A.)
Violette v.
New Brunswick Dental Society (2004), 267 N.B.R. (2d) 205
(N.B.C.A.) (A party who abandons the right to participate in a tribunal hearing
does not entirely waive the right to challenge the tribunal's decision, either
on its merits or with respect to issues that could have been raised during the
proceedings)
H.E.U. v. Northern Health Authority (2003), 2 Admin. L.R. (4th) 99 (B.C.S.C.)
(union had standing to challenge provincial government’s delegation to a
subordinate authority; although not directly affected, union given public
interest standing because otherwise the government’s action would be immune
from challenge)
Nunavut Territory (Attorney General) v. Canada (Attorney
General) (2005), 23 Admin. L.R. (4th) 288 (F.C.) (No standing for
territorial government to challenge Minister of Fisheries decision regarding
allocation of total allowable catch; interest “indirect” and another party was
better suited to challenge the decision)
Bell Canada v. Allstream Corp.
(2004), 21 Admin. L.R. (4th) 222 (F.C.A.) (no standing to invoke
procedural fairness of others [Bell’s customers])
Northwestern Utilities
Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684 (No tribunal is entitled to make
submissions aimed at bolstering reasons that are otherwise materially
deficient. Bootstrapping is not to be tolerated. Tribunals may not make
submissions that address the merits of the case.)
Canadian Association of Industrial,
Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983
(tribunal can demonstrate its decision is not patently unreasonable)
Canadian Union of Public Employees
(Airline Division) v. Canadian Airlines International Ltd.,
[2000] F.C.J. No. 220 (C.A.)
Quebec (Commission des affaires sociales)
v. Daigle, [1992] 1 S.C.R. 952
Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221
United Brotherhood of Carpenters and Joiners of America
Local 1368 v. Bransen Construction Ltd. et al.
(2002), 249 N.B.R. (2d) 93 (N.B.C.A.)
Children's Lawyer for Ontario v. Goodis (2005), 75 O.R. (3d)
309 (C.A.)
Telus Communications Inc. v.
Telecommunications Workers Union (2005), 257 D.L.R.
(4th) 19 (F.C.A.) at para. 108 (no standing of tribunal to speak to issue of
bias)
Chrétien v. Canada (Attorney General) (2005), 29 Admin. L.R.
(4th) 195 (T.D.) (Commissioner granted leave to intervene on the issue of the
scope and mandate of the commission as set out in the terms of reference and
jurisdiction; permitted to bring an appeal if A.G. Can. did not because of the
public interest in favour of a final resolution; no standing to make
submissions on issues of bias because submissions would not be helpful to the
court and would be solely self-interested)
Genex Communications Inc. v. Canada (A.G.), 2005 FCA 283 (F.C.A.) (CRTC's interventions limited to objective description
of jurisdiction, regulatory framework, procedure, licence renewal application
proceeding)
Lang v. British Columbia (Superintendent
of Motor Vehicles), 2005 BCCA 244
(B.C.C.A.) (While the line between arguing the merits and explaining the record
is somewhat blurry when the test is patent unreasonableness, there remains a
boundary which must be observed.)
Bransen Construction Ltd. v. C.J.A., Local 1386 (2002), 39 Admin L.R. 1
(N.B.C.A.) (the true issue is whether the tribunal seeking intervener status
has something to contribute beyond that expected of the parties; if so, there
is no problem with the tribunal addressing the merits in written submissions;
Oral submissions that respond only to questions posed by the reviewing court,
or are of brief duration, qualify as non-aggressive participation that respect
the principle of impartiality; but there are limits: tribunal cannot make
submissions designed to supplement tribunal's reasons for judgment)
For example: Rules of Civil Procedure (Ontario), Rule 13; Federal Court Rules, Rule 109; Rules of the Supreme Court of Canada, SOR/83-74, Rule 18 and Practice Direction
Bransen Construction Ltd. v. C.J.A., Local 1386
(2002), 39 Admin L.R. 1 (N.B.C.A.) (Tribunals as interveners) (“The
jurisprudence does not offer bright line tests for deciding whether to grant a
tribunal intervener status. But there are certain obvious guidelines. The
tribunal must persuade the court that: the case is of precedential
significance; the tribunal can contribute to the proceedings in a manner not
reasonably expected of the parties; and the principle of impartiality can and
will be respected.”)
Ferguson Bus Lines Ltd. v. Amalgamated Transit Union, Local 1374, [1990] 2 F.C. 586 at 590 (F.C.A.) (“A tribunal that seeks intervener status with “monotonous regularity” will soon realize that it lacks credibility before the courts.”)
Canadian Council of Professional Engineers v. Memorial University of Newfoundland (1998), 135 F.T.R. 211 (T.D.)
Ontario Home Builders' Association v. York Region Board of Education, [1996] 2 S.C.R. 929 (interveners cannot be used to try to bolster a party’s suspect standing)
Lang v. British Columbia (Superintendent
of Motor Vehicles) (2005), 28 Admin. L.R. (4th) 299 (B.C.C.A.)
(Attorney General may speak for government to advance the public interest or on
behalf of the tribunal where the tribunal does not appear)
Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110
RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311
143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), [1994] 2 S.C.R. 339
Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764
M.(K.)
v. M.(H.), [1992] 3 S.C.R. 6 (Mere
delay is insufficient to trigger the doctrine of laches. Rather, the doctrine considers whether the
delay of the plaintiff constitutes acquiescence or results in circumstances
that make the prosecution of the action unreasonable. Ultimately, laches
must be resolved as a matter of justice as between the parties, as is the case
with any equitable doctrine).
Remo Imports Ltd.
v. Jaguar Canada Ltd., 2005 FC 870 (The doctrine of laches
does not apply when there is a statutory limitation period and a person asserts
his or her right within that timeframe).
However, see J.L.O. Ranch v. Logan Estate (1987), Alta. L.R. (2d) 130 (Q.B.) (where
the statute providing for limitation period permits the operation of equity,
the doctrine of laches may apply despite the
limitation not having expired).
Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327
(The doctrine of laches does not apply in the context
of constitutional division of powers)
Langley (Township) v. Wood, 1999 BCCA 260
(B.C.C.A.) (As a general rule, municipal rights, duties and powers, including
the duty to carry out the provisions of a statute, are of such public nature
that they cannot be waived, lost or vitiated by mere acquiescence or laches).
Zaki v.
Ontario Conference of Judges v.
Ontario (Chair, Management Board) (2005),
71 O.R. (3d) 528 (
Syndicat des employés de la function publique de l'Ontario et al. v. Collège des Grands Lacs et al. (2005),
200 O.A.C. 101 (
Solosky v. The Queen, [1980] 1 S.C.R. 821
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342
New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46
M. v. H., [1999] 2 S.C.R. 3
Sommers v. Ontario Civilian Commission on Police Services,
unreported,
Duffin Capital Corp. v. Ontario (Minister of Municipal Affairs
and Housing) (2005), 198 O.A.C. 192 (
Nunavut Territory (Attorney General) v. Canada (Attorney
General) (2005), 23 Admin. L.R. (4th) 288 (F.C.) (Challenge to
Minister’s decision regarding the allocation of “total allowable catch” for a
season that had passed was not moot: the underlying principles continued to be
in contention and they would govern exercises of discretion in future years).
Harquail v. Canada (Public Service Commission) (2004), 20 Admin. L.R. (4th) 266 (F.C.) (judicial review of
denial of unpaid leave requested for the purposes of running for Parliament;
election passed and thus moot; a case that is of recurring nature but evasive
of review may be heard in the discretion of the court)
Thamotharampillai
v. Canada (Solicitor General) (2006), 37 Admin. L.R. (4th) 1 (F.C.) (application
for judicial review of removal order moot after applicant’s request for stay of
order denied and applicant deported)
York Regional Police (Chief of
Police) v. Ontario Civilian Commission on Police Services, 2005 CanLII 1415 (Ont. Div. Ct.) (whether the rules provide for
it or not, it may be possible for a party to quash a judicial review that has
no hope of success)
David Bull Laboratories ( Canada )
Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) (quashing is available in
Federal Court despite the absence of a specific rule permitting it)
Reza v.
Canada, [1994] 22 S.C.R. 394
Ahani v. Canada (Attorney General)
(2002), 208 D.L.R. (4th) 66 (Ont. C.A.)
May v.
Ferndale Institution, [2005] 3 S.C.R. 809
Nash et al. v. The Queen in Right of Ontario (1995), 27 O.R. (3d) 1 (C.A.)
Schreiber v. Canada (Attorney General) and The Federal Republic of Germany (2000), 48 O.R. (3d) 521 (S.C.J.), rev'd (2001), 57 O.R. (3d) 316 (C.A.)
Pearson v. Canada, [1999] F.C.J. No. 1298 (T.D.)
Performance Industries Ltd. v. Sylvan
Lake Golf & Tennis Club Ltd., [2002] 1 S.C.R. 678 at paras.
32-34
Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board
(2005), 200 O.A.C. 209 (C.A.) (reviewing court dismisses bias objection
that was not raised before the tribunal)
Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla
v. Quebec (Attorney General), [2005] 1 S.C.R. 257 at
paras.
38-40 (general rule against raising constitutional issues in a judicial review
or in another court proceeding when those issues could have been raised in a
tribunal that had jurisdiction to deal with them)
Nova Scotia (Workers' Compensation
Board) v. Martin, [2003] 2 S.C.R. 504 (jurisdiction to consider
Charter and other constitutional issues and make findings that legislation is
invalid)
R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575
(jurisdiction to consider Charter issues and grant s. 24(1) Charter remedies)
Multani v.
Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (a court
order that infringes the constitution is reviewable
on the basis of correctness)
Re Keeprite
Workers' Independent Workers Union et al. and Keeprite
Products Ltd. (1980), 114 D.L.R. (3d) 162 (Ont. C.A.) (classic
authority on admissibility of evidence evidence
[other than the tribunal record] in judicial review proceedings)
AOV Adults Only Video Ltd. v. Manitoba
Labour Board, (2003), 228 D.L.R. (4th) 656
(Man. C.A.) (good review of the law concerning the admissibility
of evidence [other than the tribunal record] in judicial review proceedings)
Ontario Secondary School Teachers'
Federation v. Thames Valley District School Board, 2004
CanLII 42939 (Ont. Div. Ct.)
Newfoundland (Treasury Board) v. N.A.P.E.
(2005), 241 Nfld. & P.E.I.R. 13 (Nfld. C.A.) (definition of record; description
of what additional material may be added to judicial review, i.e. where there
is alleged reviewable error and the record does not
show the basis of the error, or where rules of natural justice have been
breached)
Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135 at 143 (C.A.) (in circumstances where the only way “to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court” extrinsic evidence may be admissible)
Omar v. Canada (Solicitor General) (2004), 23 Admin. L.R.
(4th) 56 (F.C.) (new evidence of a serious apprehension of harm to life or
health arising as a result of a removal order was admitted for the purposes of
a stay motion, even though the proceedings leading up to the removal order did
not show such a threat)
Provincial Court Judges Association (New
Brunswick) v. New Brunswick (Minister
of Justice), [2005] 2 S.C.R. 286
(affidavits showing that the government was taking salary commission’s
recommendations seriously were admitted)
C.J.A., Local 1985 v. Grah
Construction & Engineering Ltd. (2006), 36 Admin L.R. (4th) 302 (
K.(B.) v.
Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522
Del Zotto v.
Tihomirovs v.
Becker v. City Park Co-operative Apartments Inc. (2005), 193 O.A.C. 52
(Div. Ct.) (judicial review quashed because there was an adequate alternative
remedy)
Ontario Conference of Judges v. Ontario (Chair, Management
Board)
(2005), 71 O.R. (3d) 528 (
Schilthuis v. College of Veterinarians of Ontario, 2005
CanLII 1083 (
College of Physicians and Surgeons of
Ontario v. Shiu-Yuen, 2005 CanLII 2037 (
Bouliane c. Québec (Ministre
de la Sécurité publique) (2004), 17 Admin. L.R. (4th) 250 (Qué.
Schilthuis v. College of Veterinarians of Ontario, 2005
CanLII 1083 (
Bachinsky v. Sawyer, [1974] 1 W.W.R. 295
(Alta. Q.B.) (the remedy is available where proceedings
are tainted by a reasonable apprehension of bias or lack of independence)
Lilly v. Gairdner
(1973), 2 O.R. (2d) 74 (
R. v.
Jones
(1974), 2 O.R. (2d) 741 (
Woolworth Canada Inc. v.
Misra v.
Howe v. Institute of Chartered Accountants (Ontario)
(1994), 19 O.R. (3d) 483 (C.A.), leave to appeal to S.C.C. refused (1995), 21 O.R.
(3d) xvi (S.C.C.) (if the decision-maker has the legal capacity to consider
challenges to its jurisdiction or to determine the extent of procedural
entitlements, the courts should generally refrain from entertaining an
application for prohibition until the tribunal either declines to consider the
matter or actually deals with it)
Canada (Attorney General) v. Canada (Commissioner of the
Inquiry on the Blood System) (1997),
142 D.L.R. (4th) 237 (Fed. C.A.), aff’d (1997), 151
D.L.R. (4th) 1 (S.C.C.) (even where a decision-maker resolves a preliminary
jurisdiction issue in its favour, the court may be reluctant to intervene on
the basis of an application for prohibition unless there is an obvious excess
of jurisdiction or an actual flagrant breach of the rules of natural justice)
Merck Frosst Canada Inc. v.
Canada (Minister of National Health & Welfare),
[1998] 2 S.C.R. 193 (the accrual of jurisdiction or authority between the date
an application for prohibition is filed and the date the application is heard
may defeat the claim for prohibition)
Stearns v. Alberta Insurance Council, [2001] A.J. No. 1152 (Alta. Q.B.)
(prohibition granted in circumstances of extreme delay by tribunal, substantial
prejudice to ability of party to participate in the tribunal’s hearing and
severe prejudice to practical, non-legal interests of the party arising from
delay)
From third parties – for example: Ontario Rules of Civil Procedure, Rules 34, 39 and 53; Federal Court Rules, 41, 91, 317
Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3
Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 (ongoing
supervision as a possible 24(1) remedy in constitutional cases)
Centre Académique de Lanaudière c. Québec (Ministre de
l’Education), 35 Admin. L.R.
(3d) 30 (C.S. Qué.) (discretionary
nature of mandamus; when a Minister
will be forced to make a grant: bad faith or arbitrariness is necessary)
Mah v. Manitoba (Director of Parks &
Natural Areas, Department of Natural Resources) (2002), 49 Admin. L.R. (3d) 251 (
Bell Canada v. Allstream Corp.
(2004), 21 Admin. L.R. (4th) 222 (F.C.A.) (need to
raise procedural grounds at the earliest possible opportunity; semble, a
recognition of procedural unfairness but a refusal to grant relief?)
H.E.U. v. Northern Health Authority (2003), 2
Admin L.R. (4th) 99 (B.C.S.C.) (discretion not to grant any remedy, in this
case declaration; reasons were sufficient; practical difficulties and, in the
circumstances, uncertainties would be injected into health care system)
Little Sisters Book and Art Emporium v. Canada
(Minister of Justice), [2000] 2 S.C.R. 1120
(discretion not to grant any remedy; at para. 158: “A more structured s. 24(1)
remedy might well be helpful but it would serve the interests of none of the
parties for this Court to issue a formal declaratory order based on
six-year-old evidence supplemented by conflicting oral submissions and
speculation on the current state of affairs. The views of the Court on
the merits of the appellants' complaints as the situation stood at the end of
1994 are recorded in these reasons.”)
British Columbia (Minister of Forests) v. Okanagan
Indian Band, [2003] 3 S.C.R. 371 (power to award interim costs)
(the party
seeking interim costs genuinely cannot afford to pay for the litigation, and no
other realistic option exists for bringing the issues to trial; the claim to be
adjudicated is prima facie meritorious; and the issues raised
transcend the individual interests of the particular litigant, are of public
importance, and have not been resolved in previous cases)
Pottie v. Nova Scotia Real Estate Commission (2005), 37
Admin. L.R. 131 (N.S.S.C.) (inadequate reasons; redetermination required, with
additional submissions and new evidence provided if the parties so wish)
Provincial Dental Board of Nova Scotia v. Dr. Clive Creager, 2005
NSCA 9 (remitted back so the tribunal can write proper reasons; the Board can
reopen its proceedings if it wishes to engage in a reconsideration)
Dhahbi v.
R. v. Consolidated Maybrun
Mines Ltd., [1998] 1 S.C.R. 706 (collateral attack)
Danyluk v.
Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 (res judicata and issue estoppel)
Toronto
(City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77
(abuse of process)
Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817
R. v. Sheppard, [2002] 1 S.C.R. 869; R. v. Braich, [2002] 1 S.C.R. 903
Housen v. Nikolaisen, [2002] 2 S.C.R. 235
H.L. v.
Canada (Attorney General), [2005] 1 S.C.R. 401