What to Consider Before Seeking Judicial Review at the Federal Court

Updated November 2016

This How-To Brief outlines what you need to know before bringing an application for judicial review (application) at the Federal Court for non-immigration decisions. Refer to the Immigration and Refugee Protection Act and to the Federal Courts Immigration and Refugee Protection Rules for the procedure related to the review of immigration decisions.

Terms marked by an asterisk (*) are defined in the Glossary.

1What materials does the applicant need to get started?

  • 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.

2What 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. If you are seeking damages, consider filing an action.
  • 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 those tribunals' decisions, your application must be issued by the Federal Court of Appeal.

3What is the deadline to get an application issued by the Federal Court?

  • 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.
  • 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 the Federal Courts Act.

4Who is the decision-maker?

  • Read s. 2(1) of the Federal Courts Act and the definition of "federal board, commission or other tribunal": The decision-maker is a "federal board, commission or other tribunal" if it derives its authority from an Act of Parliament.
  • Examples of federal decision-makers include the Canadian Human Rights Tribunal, the Canadian International Trade Tribunal the Canada Revenue Agency, the Prime Minster, an immigration official, or a customs officer.

5What rules govern the decision-maker?

  • The decision-maker must have jurisdiction.
  • The decision-maker must be impartial.
  • The decision-maker must be fair. Read Baker v. Canada (Minister of Citizenship and Immigration): It describes the factors to consider when determining the content of procedural fairness. Examples include the nature of the decision, the nature of the statutory scheme, the legitimate expectations of the individual, the importance of the decision to the individual, and the procedure followed by the decision-maker.
  • The decision-maker must ensure that each party has an opportunity to tell their story. The right to be heard varies case by case. In some situations, the applicant will have a right to a hearing, while in another case, the applicant will only have a right to make written submissions.
  • "He or she who hears, decides": The decision-maker who examines the evidence and the submissions is the decision-maker who renders the decision.
  • The decision-maker must provide reasons for the decision.
  • The decision must be communicated to the parties.

6What "matter" is subject to judicial review?

  • Read s. 18.1(1) of the Federal Courts Act: Judicial review is not restricted to decisions and orders. Applications can be filed by "anyone directly affected by the matter in respect of which relief is sought." [Emphasis added]
  • Determine if the applicant has standing or public interest standing to bring the application.
  • Determine if the matter is justiciable? For example, a matter of "high policy" or involving the exercise of a prerogative power is generally non-justiciable.
  • Determine if the decision or order is final or interlocutory*. Interlocutory decisions and orders are generally not reviewable.
  • Exhaust all administrative redress mechanisms, such as grievances, and all appeals before seeking judicial review.
  • Read Borowski v. Canada (Attorney General): Consider whether the facts have changed after the decision was issued and determine if the application is moot.* For example, an inmate challenges a warden's decision, but is released from the penitentiary before the application is heard.

7What are the grounds for judicial review?

  • Read s. 18.1(4) of the Federal Courts Act: Among grounds for judicial review are errors of law, errors of mixed fact and law, and errors of fact.
  • Examples of errors of law include:
    • acting without jurisdiction or beyond jurisdiction
    • breaching a principle of procedural fairness
    • bias of the decision-maker (this ground must be raised before the decision-maker at the first available opportunity)
    • fettering* discretion
    • applying the wrong legal test
    • acting contrary to law
    • misinterpreting statute or case law or ignoring statute or case law
    • ignoring evidence
  • Errors of mixed fact and law occur when the decision-maker misapplies a legal test to a set of facts.
  • Errors of fact include making an incorrect determination of fact based on the evidence. For example, the affidavit states that the car is green and the decision-maker determines that it is blue when there is no evidence to support the finding that the car is blue.

8What is the certified tribunal record (CTR)?

  • 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).
    • A CTR may sometimes nclude audio or even a transcipt
    • 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(1)(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.

    9What is the standard of review of the decision under review?

    • Read Dunsmuir v. New-Brunswick : The Supreme Court of Canada reassessed the standards of review and determined that there are only two: correctness and reasonableness.
    • Determining which standard of review applies is a two step process (Dunsmuir at para. 62):
      1. Determine if the standard of review has been previously determined by case law.
      2. If not, proceed to a standard of review analysis of the four factors in the former pragmatic and functional test to identify the proper standard of review.
    • The standard of review of correctness applies to procedural fairness, constitutional questions, legal questions of general importance, and jurisdiction questions.
    • The standard of review of reasonableness is a deferential standard and applies to questions of fact, questions of mixed fact and law, and questions of law within the expertise of the tribunal (Dunsmuir at paras. 52-56). A reasonable decision is supported by evidence and reasons, and can have several outcomes (Dunsmuir at paras. 47-48).
    • Read Smith v. Alliance Pipeline Ltd.: The Supreme Court of Canada determined that when a decision-maker is interpreting its home statute, its decision is reviewable on the standard of reasonableness.
    • Read Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board): A decision-maker's reasons must be supplemented before they are subverted.  In other words, the decision-maker must read the CTR to determine if there is enough evidinence that support the reasons.

    10Can the parties consent to sending the decision back for re-determination after the application is issued?

    • If the decision-maker is a government department (for example, Health Canada, Public Works and Government Services Canada or Correctional Service of Canada),.the parties can consent to the decision being sent back for re-determination by signing a settlement agreement. The applicant will then serve and file a notice of discontinuance with the Federal Court pursuant to r. 165 of the Federal Courts Rules. The application is now over, and the Federal Court file is closed without further intervention from the court.
    • If the decision-maker is a tribunal with an enabling statute, the parties cannot consent to the decision being sent back for re-determination without a court order. The applicant, with the consent of the respondent should file a motion for an order on consent and articulate the grounds justifying quashing the decision. Motions on consent should be made in writing pursuant to r. 369 of the Federal Courts Rules. Motions on consent can be made orally if time is of the essence. The parties should demonstrate how they meet the criteria established by the Federal Court to set aside a decision, which includes:
      1. The application does not raise Charter or public law issues.
      2. There are sufficient facts before the Court from which it can conclude that the applicant is entitled to the relief sought.
      3. The relief proposed by the parties does not repeal a regulation.
      4. The order by consent is the most effective way of resolving the matter in the public interest.

    11What are the rules governing costs in the Federal Court?

    • Read r. 400 of the Federal Courts Rules: The Federal Court has discretion to award costs.
    • 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 r. 407 of the Federal Courts Rules: Costs are 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.
    • 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.
    • Costs for an application are generally between $3000 to $5000, depending on whether you are the applicant or the respondent.

    Glossary

    Fettering: Refusing to exercise discretion or refusing to make a decision.

    Interlocutory: Not final; an order that is temporary.

    Moot: A proceeding that has no practical effect on the rights of the parties.

    Resources

    Case law

    • Law relating to fairness:
      • Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
    • Law relating to filing a motion for an extension of time:
      • Stanfield v. Canada, 2005 FCA 107.
    • Law relating to mootness:
      • Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
    • Law relating to the standard of review of administrative decision-makers:
      • Dunsmuir v. New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
      • Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708.
      • Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160.

    Statutes and Rules