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What to Consider Before Seeking Judicial Review at the Federal Court

Updated June 2012

This How-To Brief outlines what you need to know before seeking an 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.

  1. What materials does the applicant need to get started?
  2. What is the jurisdiction of the Federal Court?
  3. Should I get an application or an action issued by the Federal Court?
  4. Who is the decision-maker?
  5. What rules govern the decision-maker?
  6. What is the deadline to get an application issued by the Federal Court?
  7. What "matter" is subject to judicial review?
  8. What are the grounds for judicial review?
  9. What is the certified tribunal record (CTR)?
  10. What is the standard of review of the decision under review?
  11. Can the parties consent to sending the decision back for re-determination after the application is issued?
  12. What are the rules governing costs in Federal Court?
  13. Glossary
  14. Resources
  15. Case law
  16. Statutes and Rules

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

1What materials does the applicant need to get started?

  • Get a copy of the decision under review and of all the materials considered by the decision-maker—your client should have a copy of these.
  • Get a copy of Federal Courts Practice by Brian J. Saunders and others. It contains annotated versions of the Federal Courts Act and the Federal Courts Rules. The Federal Courts Act and the Federal Courts Rules apply to proceedings at the Federal Court and at the Federal Court of Appeal.
  • Keep in mind that the Federal Courts Rules are substantially different from the Ontario Rules of Civil Procedure.

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.
  • 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. Therefore, to review a decision of a federal decision-maker listed at s. 28 of the Federal Courts Act, get an application issued by the Federal Court of Appeal.

3Should I get an application or an action issued by the Federal Court?

  • Read s. 17 of the Federal Courts Act: It describes the jurisdiction of the Federal Court with respect to relief against the federal Crown. If you seek damages from the federal Crown, have an action issued in Superior Court of Justice or in Federal Court.
  • Read ss. 18 and 18.1 of the Federal Courts Act: If you want to quash a decision of a federal decision-maker, get an application issued.
  • Read Canada (Attorney General) v. Telezone Inc.: The Supreme Court of Canada determined that one does not have to successfully challenge a decision of the federal Crown in Federal Court via an application before claiming damages in an action.

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" and derives its authority from an Act of Parliament.
  • Examples of federal decision-makers include the Canadian Human Rights Tribunal, the Canadian International Trade Tribunal, a federal government official (such as a visa officer) or a Minister.

5What rules govern the decision-maker?

  • Read Baker v. Canada (Minister of Citizenship and Immigration): It describes the factors to consider to ensure fairness in the administrative law context.
  • The decision-maker must be fair. The degree of the duty of fairness varies significantly.
  • The decision-maker must be impartial.
  • The decision-maker must act within the confines of legislation.
  • The decision-maker must ensure that each party has an opportunity to tell their story. The right to be heard is a fluid concept that 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 should be the person who examines the evidence and the submissions.
  • The decision-maker can render three types of decisions (not to be confused with the types of decision-makers):
    1. Administrative decisions: characterized by a broad grant of discretion
    2. Quasi-judicial decisions: characterized by statutory authority to use discretion and to be guided by other considerations such as public policy
    3. Judicial decisions: characterized by complete absence of discretion
  • The decision-maker must exercise its decision-making authority independently of anyone else.
  • The decision-maker must provide sufficient reasons for the decision.
  • The decision must be communicated to the parties.

6What 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 be issued within 30 calendar days from the date the decision was communicated to the applicant. 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). 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.
  • 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 on a holiday, the deadline falls on the next business day.
  • Read r. 383 of the Federal Courts Rules: Consider if your application is appropriate for case management.

7What "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 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 applicant has standing or public interest standing.
  • 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.*

8What 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.

9What 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. This is not documentary discovery.
  • Pursuant to r. 318(2) of the Federal Courts Rules, the tribunal may object to transmitting certain documents in the CTR. For example, an objection can be made to transmitting an opinion that is protected by solicitor-client privilege.
  • If you intend to rely on the CTR as evidence at the hearing, attach it to an affidavit.

10What is the standard of review of the decision underreview?

  • Read Dunsmuir v. New-Brunswick at paras. 34–64: The Supreme Court of Canada reassessed the standards of review and determined that there are only two: correctness and reasonableness.
  • 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. Therefore, it is incorrect to say that all questions of law are reviewable on the standard of correctness.
  • Questions of mixed fact and law, questions of fact and questions within the expertise of the decision-maker are owed a higher degree of deference and are reviewable on the standard of reasonableness (Dunsmuir at paras. 52–56). The court will not intervene if a decision is reasonable* (Dunsmuir at paras. 47–48).
  • Determining which standard of review applies is a two step process (Dunsmuir, para. 62):
    1. Determine whether the standard of review to a particular issue 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.
     

11Can the parties consent to sending the decision back for re-determination after the application is issued?

  • If the decision-maker is the federal government (for example, Health Canada, Public Works and Government Services Canada or Correctional Service of Canada), the respondent is also the decision-maker. The parties can consent to the decision being sent back for redetermination 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 parties must file a joint motion record for an order on consent and articulate grounds justifying the quashing of 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 include all of the following:
    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.

12What are the rules governing costs in 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 allowable costs and disbursements on assessment. Costs payable in Federal Court do not reflect counsel's time in hours. A unit is billed at $130.
  • Read r. 407 of the Federal Courts Rules: Costs are assessed in accordance with Column III of the Table to Tariff B.
  • Read "Notice to the Parties and the Profession – Costs in the Federal Court," dated April 30, 2010: Before the hearing, talk to opposing counsel about costs and be prepared to make costs submissions at the end of the hearing. Bring a bill of costs to the hearing.
  • Ask the Federal Court to fix costs in the order and the parties will not need to make costs submissions to an assessment officer pursuant to r. 405 of the Federal Courts Rules.
  • Costs for an application are generally between $2,000 to $4,000, 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.

Mandamus: A court order that requires the performance of a statutory obligation.

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

Reasonable: A decision that is supported by evidence and reasons. A reasonable decision can have several outcomes (Dunsmuir at paras. 47–48).

Resources

Case law

  • Canada (Attorney General) v. Telezone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585
  • 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
    • Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160

Statutes and Rules