CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
judicial review) that specifies the relief sought and makes factual and legal assertions in sup - port of that relief. 9.5 Procedural Stages After the claimant initiates a claim, the govern - ment must first disclose the evidence before the decision-maker. The claimant must then file the application record, which may contain support - ing affidavits. The government defendant then files any responding affidavit evidence. The par - ties may then conduct cross-examinations on the affidavits and bring any motions for refus - als and undertakings. After the factual record is closed, the claimant files legal submissions, and the government files responding legal submis - sions. 9.6 Initial Sifting Process In all applications for judicial review, there is no requirement for leave, and the matters proceed straight to adjudication. An important excep - tion is immigration and refugee protection mat - ters, where the Federal Court must grant leave to commence a judicial review, based on legal argument and evidence. 9.7 Expedited Proceedings It is possible to expedite judicial reviews in urgent situations, which are assessed on the specific facts of the case. 10. Grounds 10.1 Scope of Judicial Review: Merits v Process Judicial review addresses both the merits of the decision and the process used to make that decision. For the merits, the standard of review at common law is “reasonableness” , defined as whether the decision is one that is based on an
internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker. The focus is on the reasons issued by the decision-maker. A decision is unreasonable if, for example: • it contains leaps of logic; • it fails to properly interpret the statutory scheme; • it is not justified by the factual record; • it does not address the submissions of the parties; • it is inconsistent with past administrative practices; and • considered as such in light of the impact of the decision on the claimant. Reasonableness usually presupposes there is more than one correct decision, and, as long as a decision is reasonable, courts will defer to it even if they disagree with it. Courts apply an appellate or “correctness” standard of review and substitute their judgment for those of the decision-maker in a very limited set of circumstances. These include: • legislated standards of review; • statutory appeal mechanisms; • constitutional questions; • general questions of law of central impor - tance to the legal system as a whole; • questions related to the jurisdictional bounda - ries between two or more administrative bodies; and • concurrent first instance jurisdiction. 10.2 Constitutional Challenge Claimants in judicial reviews may also challenge the constitutionality of executive action based on written constitutional instruments:
73
CHAMBERS.COM
Powered by FlippingBook