CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
Circle Barristers Suite 200, 325 Front Street West
Toronto Ontario M5V 2Y1 Canada Tel: +1 416 436 3679 Email: sujit.choudhry@circlebarristers.com Web: www.circlebarristers.com
1. Jurisdiction 1.1 General Rules or Specific Regimes? Judicial review of executive decisions is gov - erned by the general rules of administrative law under the common law, and constitutional law arising under the Canadian Charter of Rights and Freedoms (Canada’s bill of rights), the federal division of powers in the Constitution Act, 1867, the aboriginal and treaty rights under Section 35 of the Constitution Act, 1982, and the common law. However, the courts contextualise the applica - tion of these principles to particular decision- makers. In addition, there are highly specific regimes for particular decision-makers, which Provincial superior courts and the Federal Court of Canada have jurisdiction to hear judicial reviews of executive decisions. Every court in Canada can hear challenges to the constitution - ality of legislation, if the dispute (ie the parties and relevant statute) falls within their jurisdiction. For example, a corporation may challenge the mostly concern procedural issues. 1.2 Forum for Judicial Review
constitutionality of any legislation in enforcement proceedings brought against it.
2. Target of Challenge 2.1 Determining Susceptibility
Executive decisions are subject to judicial review under public law, but only where there is an exer - cise of statute authority and where that exercise is of a sufficiently public character. The courts consider a variety of factors in answering this question, including: • the character of the matter for which review is sought; • the nature of the decision-maker and its responsibilities; • the extent to which a decision is founded in and shaped by law as opposed to private discretion; • the body’s relationship to other statutory schemes or other parts of government; • the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity; • the suitability of public law remedies; and • the existence of a compulsory power.
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