The Steps in an Application for Judicial Review in Federal Court

Updated November 2016

This How-To Brief outlines the steps in an application for judicial review (application) in Federal Court for non-immigration matters.  Immigration matters are governed by the Federal Courts Citizenship, Immigration and Refugee Protection Rules.

1The applicant gathers the required resources

  • Obtain a copy of the decision under review and of the materials considered by the decision-maker—your client should have a copy of these. 
  • Obtain a copy of Federal Courts Practice 2016 by Brian J. Saunders, Justice Rennie, and Graham Garton, Q.C. It contains annotated versions of the Federal Courts Act and the Federal Courts Rules which govern proceedings at the Federal Court and at the Federal Court of Appeal.

2The applicant considers the preliminary issues of jurisdiction, standing, and timelines

  1. What is the jurisdiction of the Federal Court?
    • Unlike the Ontario Superior Court of Justice, which is a court of inherent jurisdiction, the Federal Court is a creation of statute, and it derives its authority from the Federal Courts Act and from almost one hundred federal statutes.
    • Read ss. 18(1) and 18.1(3) of the Federal Courts Act:  The Federal Court has exclusive jurisdiction over federal decision-makers that are not listed  at s. 28 of the Federal Courts Act. The Federal Court can issue an injunction or mandamus, grant declaratory relief or set aside a decision and refer it back to a decision-maker for re-determination. The Federal Court does not have jurisdiction to order the payment of damages in an application.
    • Read s. 28 of the Federal Courts Act: The Federal Court of Appeal has exclusive jurisdiction over certain federal decision-makers, such as the Canadian Radio-television and Telecommunications Commission, the Copyright Board of Canada, and the Competition Tribunal.  If you want to judicially review one of those decisions, you must request that the application be issued by the Federal Court of Appeal.

    • Who has standing to bring an application in Federal Court?
      • Read s. 18.1(1) of the Federal Courts Act: An application can be made by the Attorney General of Canada or by anyone "directly affected" by an order of a federal decision-maker. The order must affect an applicant's rights or obligations or cause it prejudice. A party who is not directly affected by an order can seek public interest standing.
      • Read r. 303(2) of the Federal Courts Rules: The respondent is generally the Attorney General of Canada. Government departments such as Health Canada or Indigenous and Northern Affairs Canada do not exist at law and are improper respondents.
      • Read r. 303(1)(a) of the Federal Courts Rules: The tribunal whose order is being challenged is generally not a party to the application.

    • What are the timelines in Federal Court?
      1. i. Before an application is issued
        • Read s. 18.1(2) of the Federal Courts Act: The notice of application must generally be issued within 30 calendar days from the date the decision was communicated to the applicant.  All deadlines will be counted in calendar days.
        • Start counting 30 days the day after the decision was communicated to the applicant. For example, if the decision was communicated to the applicant on October 1, start counting 30 days from October 2. Therefore, the applicant has until October 31 to have the application issued by the Federal Court. If this deadline falls on a weekend or a holiday, the Federal Court will issue the application on the next business day.
        • Some statutes provide for different deadlines (For example, see the Immigration and Refugee Protection Act (s. 72(2)(b), 15 or 60 days) or the Access to Information Act (s. 41, 45 days)).
        • If you miss this deadline, you must file a motion for an extension of time in writing and provide an explanation justifying the extension of time (Stanfield v. Canada at para. 3; Federal Courts Rules, rr. 8 and 369). This motion can also be heard orally if time is of the essence and if it is contested. If the Federal Court grants your motion for an extension of time, the registry will issue your application. The parties cannot consent to extend a deadline imposed by legislation.
         
        • Read r. 7 of the Federal Courts Rules: Once an application is issued, parties can consent to an extension of time equivalent to half the time allotted by the Federal Courts Rules to complete the steps in an application. If you require an extension of time, call the applicant and request it. Send the applicant a consent for signature or request consent to sign it on the applicant's behalf. File the consent with the Federal Court.
        • Read rr. 8 and 369 of the Federal Courts Rules: If you require an extension of time greater than the one allowed at r. 7 of the Federal Courts Rules, you must file a motion for an extension of time in writing and provide an explanation justifying the extension of time. This motion can also be heard orally if time is of the essence and if it is contested.
        • Read r. 2 of the Federal Courts Rules, definition of "Christmas recess": Time stops running during the Christmas recess, which is the timeframe from December 21 to January 7. Time does not stop running in July and August when counting deadlines imposed by the Federal Courts Rules.  However, s.27(2)(b) of the Federal Courts Act states that July and August are not counted int he 30 day deadline to file a notice of appeal.  For example, if the Federal Court issues a final order on June 28, the notice of appeal is not due until September 28.  You have only 10 days to appeal an interlocutory order of the Federal Court to the Federal Court of Appeal (s. 27(2)(a) of the Federal Courts Act.
           

    3The applicant drafts the notice of application and the Federal Court issues it — r. 301 and Form 301

    • Read rr. 62–63 of the Federal Courts Rules: An application is commenced when the Federal Court issues a notice of application.
    • Read r. 301 of the Federal Courts Rules: Draft the notice of application pursuant to Form 301 of the Federal Courts Rules. Include the date of the decision, the date the decision was communicated to the applicant, the decision-maker, the grounds for review, the order sought, and a list of evidence to be used at the hearing. Request a copy of the certified tribunal record (CTR) pursuant to r. 317 of the Federal Courts Rules. Include your email since the Federal Court emails orders and directions.
    • Read s. 57 of the Federal Courts Act if you intend to file a notice of constitutional question.
    • Read r. 1(1)(d) of Tariff A, Court Fees of the Federal Courts Rules: The applicant pays $50 to get the notice of application issued.
    • Bring the notice of application to the registry at the Federal Court to have it issued.
    • The registry officer will put a court file number on the top right corner of the notice of application: T-___-16 (last two digits of the year).
    • Read rr. 127(1)–128 of the Federal Courts Rules relating to personal service.
    • Read r. 304 of the Federal Courts Rules: Serve the notice of application personally on the decision-maker and on the respondent, within 10 days after the notice of application is issued.
    • Read r. 133 of the Federal Courts Rules: Personal service on the Attorney General of Canada is effected by filing the notice of application and two copies with the registry.
    • Read r. 383 of the Federal Courts Rules: Consider if your application would benefit from case management: Does it involve many parties? It is complex? Do the timeframes for each step require extensions?

    4The respondent files a notice of appearance — r. 305 and Form 305

    • Read r. 305 of the Federal Courts Rules: The respondent serves and files a notice of appearance pursuant to Form 305 of the Federal Courts Rules indicating his or her information (including email) within 10 days (or 15 days with consent) of being served with the notice of application.

    5The tribunal transmits the certified tribunal record to the parties and to the Federal Court – rr. 317–318

    • Read rr. 317–318 of the Federal Courts Rules.
    • The CTR is composed of only the material that was considered by the decision-maker when rendering the decision.  For example, an investigator conducts an investigation and considers voluminous documentation presented by the parties.  The investigator sends only the parties' final submissions and a Briefing Note with a recommendation to the decision-maker.  The decision-maker relies only on this information to make the decision.  Thus, the CTR contains only the parties' final submissions and the Briefing Note with the recommendation, and not the voluminous documentation considered by the investigator.  A CTR is not documentary discovery (which occurs in an action). 
    • Read r. 318(1) of the Federal Courts Rules: The CTR is transmitted to the parties and the Federal Court within 20 days (or 30 days with consent) from the day the request was made.
    • Read r. 318(2) of the Federal Courts Rules: The tribunal may object to transmitting certain documents in the CTR. For example, an objection will be made to transmitting an opinion that is protected by solicitor-client privilege.

    Read r. 309(2)(e.1) of the Federal Courts Rules: If the applicant is relying on the CTR, it must be included in the applicant's record. It does not need to be attached to an affidavit.

    6The applicant serves its affidavit evidence, if necessary — r. 306

    • Read rr. 80–81 of the Federal Courts Rules: Evidence in an application is submitted via affidavit (written evidence).
    • Read rr. 306 and 309(2)(e.1)) of the Federal Courts Rules: Determine if an affidavit is necessary. The applicant can rely on the CTR as it is the factual basis for the application. The applicant cannot include facts that were not before the decision-maker in an affidavit, unless they fit into one of the narrow exceptions, such as facts demonstrating bias of the decision-maker.
    • If an affidavit is necessary, the applicant serves it on the respondent within 30 days (or 45 days with consent) after the notice of application is issued. The applicant's affidavit(s) are not filed with the registry at this step.

    7The respondent serves its affidavit evidence, if necessary — r. 307

    • Generally, the respondent will rely on the CTR and will not serve an affidavit.
    • Read r. 307 of the Federal Courts Rules: if necessary, the respondent will serve the applicant with its affidavit(s) and file proof of service with the Federal Court within 30 days (or 45 days with consent) after the applicant served its affidavit(s) on the respondent. The respondent's affidavit(s) are not filed with the registry at this step.

    8The parties conduct cross-examinations, if necessary — r. 308

    • Understand the scope of a cross-examination on an affidavit. It is narrower than a discovery.
    • Read r. 308 of the Federal Courts Rules: Cross-examinations must be conducted 20 days (or 30 days with consent) after the respondent has served its affidavit(s) or when the time for doing so has expired.
    • Read r. 86 of the Federal Courts Rules: The party who conducts cross-examination on an affidavit pays for costs associated with the court reporter and the transcript.
    • Read r. 93(2) of the Federal Courts Rules: If the affiant requests to be cross-examined in one official language and the examiner wishes to cross-examine the affiant in the other official language, the Federal Court will arrange and pay for an interpreter.

    9The applicant files the applicant's record — r. 309

    • Read r. 309(1) of the Federal Courts Rules: The applicant serves the applicant's record on the respondent and files it 20 days (or 30 days with consent) after completing cross-examinations or after the time for doing so has expired. The applicant files three copies of the applicant's record with the Federal Court.
    • Read r. 309(2) of the Federal Courts Rules: The applicant's record must include, among other things, the notice of application, the applicant's affidavit(s), the CTR, and the applicant's memorandum of fact and law. All pages in the applicant's record must be numbered consecutively at the top right-hand corner.
    • Read r. 70 of the Federal Courts Rules: It contains the contents of a memorandum of fact and law.
    • Read Dunsmuir v. New-Brunswick, Smith v. Alliance Pipeline Ltd., and Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board): Include your position on the standard of review. ( Generally, the standard of review of correctness applies to procedural fairness issues, constitutional questions, legal questions of general importance, and jurisdiction questions. The standard of review of reasonableness applies to questions of fact, questions of mixed fact and law, and questions of law within the expertise of the tribunal.
    • Serve and file the applicant's book of authorities in a separate volume for ease of reference when serving and filing the applicant's record.
    • Read r. 70(2) of the Federal Courts Rules: Federal legislation must be provided in English and in French.

    10The respondent files the respondent's record — r. 310

    • Read r. 310 of the Federal Courts Rules: The respondent serves and files the respondent's record 20 days (or 30 days with consent) after the applicant's record is served. The respondent files three copies of its record with the Federal Court.
    • In a separate letter to the applicant, the respondent should indicate its availability dates for a hearing in the next 3 to 4 months.

    11The applicant files a requisition for hearing date — r. 314

    • Read r. 314(1) of the Federal Courts Rules: The applicant must serve and file a Requisition for Hearing Date within 10 days (or 15 days with consent) after being served with the respondent's record.
    • Read r. 314(2) of the Federal Courts Rules: Provide the Federal Court with specifics on the hearing date and list mutual availabilities of counsel for a hearing in the next 3 to 4 months. Ask for a bilingual judge, if necessary.
    • The Federal Court will issue an order outlining the place, date, time, duration, and language of the hearing. Hearings at the Federal Court start generally at 9:30am.

    12The parties prepare for the hearing

    • Invite your client to the hearing.
    • Let your client know that their evidence was already submitted. The applicant cannot introduce additional evidence at the hearing and will not speak to the judge.
    • Make sure you are very familiar with the decision under review, the CTR, and all evidence. Refer the judge to these materials.
    • Make sure to serve and file any recent case law before the hearing.
    • If the record is voluminous, prepare a compendium of the most important evidence and the most relevant portions of case law. If possible, serve and file it before the hearing.
    • Read Tariff B, Counsel Fees and Disbursements Allowable on Assessment, of the Federal Courts Rules: Tariff B sets out the costs and disbursements a party can claim. A unit is billed at $140.
    • Read Notice to the Parties and the Profession – Costs in the Federal Court dated April 30, 2010: Agree on the amount of costs with opposing counsel before the hearing. At the hearing, request that costs are fixed in the order to avoid making costs submissions to an assessment officer pursuant to Rule 405 of the Federal Courts Rules after the order is issued.
    • If the parties do not reach an agreement on costs before the hearing, prepare a bill of costs and bring three copies to the hearing.
    • Read r. 407 of the Federal Courts Rules: Costs are generally assessed in accordance with Column III of the Table to Tariff B.
    • Costs payable in Federal Court proceedings do not reflect counsel's time in hours and are substantially less than those ordered in the Ontario Superior Court of Justice.
    • Costs for an application are generally between $3000 to $5000, depending on whether you are the applicant or the respondent.
    • Call the registry 10 days before the hearing date and ask:
      • The name of the presiding judge; and
        the name, number, and email of the registry officer assigned to the hearing.

    13 The parties attend the hearing

    • Bring a copy of Federal Courts Practice 2016 to the hearing.
    • Arrive 15 minutes before the hearing.
    • Check the hearings list, double check your courtroom number, and get robed.
    • Introduce yourself to the registry officer, to opposing counsel, and to other personnel, such as court reporters (if any) and ushers.
    • Inform opposing counsel and the registry officer if you need to address a preliminary issue.
    • The applicant goes first. The respondent follows. The applicant has a right of reply (do not repeat submissions).

    14 The parties complete post-hearing tasks

    • Provide your client with a reporting letter as soon as the hearing ends.
    • In due course, the Federal Court will issue reasons for judgment and an order.
    • Read s. 27(2)(b) of the Federal Courts Act: A party has 30 days (July and August do not count) after the pronouncement (date) of the Federal Court order  to have a notice of appeal issued by the Federal Court of Appeal. If you miss this deadline, you must file a motion for an extension of time in writing and provide an explanation justifying the extension of time. Motions are generally not heard orally at the Federal Court of Appeal. If the Federal Court of Appeal grants your motion for an extension of time, the registry will issue your notice of appeal.
    • Research the standard of review on appeal: Read Housen v. Nikolaisen at para. 37.
    • Read rr. 341–348 of the Federal Courts Rules: Follow the timeframes and procedure of an appeal at the Federal Court of Appeal.  You will need to serve and file a consent for the contents of an appeal book, serve and file five copies of the appeal book, and serve and file five copies of your memorandum of fact and law.

    Resources

    Case law

    • Law relating to the test for an extension of time:
      • Stanfield v. Canada, 2005 FCA 107.
       
    • Law relating to the standard of review of administrative decision-makers:
      • Dunsmuir v. New-Brunswick, 2008 SCC 9.
      • Smith v. Alliance Pipeline Ltd., 2011 SCC 7.
      • Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
       
    • Law relating to the standard of review on appeal:
      • Housen v. Nikolaisen, 2002 SCC 33.
       

    Statutes and Rules