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I hired lawyers to investigate something that happened to me. One of their findings was "judicial review was unavailable". In simple terms does someone request a judicial review when they believe their rights have been violated and want a court to make an order that would help them?

What exactly is an administrative review or administrative tribunal? I get the impression it can happen in the work place, school or some sort of organization with a certain level of formality and structure. I also understand that it need not be fair, or at least what counts as fair is not defined. I understand it usually doesn't happen, especially if it's a non-government organization, but when can a judicial review override an administrative review's decision?

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    I don't know about Canada, but it seems likely to be similar to the US, where an administrative review would be anything from requesting reconsideration of a decision by the original decision-maker (or perhaps a supervisor) to a quasi-judicial process before a body that is called a court and is presided over by one or more people called judges but which is nonetheless part of the government's executive branch rather than the judiciary. "Administrative tribunal" would denote such a quasi-judicial body.
    – phoog
    Feb 27, 2023 at 8:36
  • If you're unclear about something in your lawyers' report, would it be simplest to ask them?
    – TRiG
    Feb 28, 2023 at 9:32
  • @TRiG 1) in my experience if someone can't explain something well the first time, asking them again isn't helpful 2) lawyers are expensive, though I'm not sure if they charge to clarify something they've already said?
    – hellohello
    Mar 7, 2023 at 8:00

1 Answer 1

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In simple terms does someone request a judicial review when they believe their rights have been violated and want a court to make an order that would help them?

No. A judicial review in Canada is when the court reviews an administrative decision, that is, a decision (including by omission) made by the executive branch of the government or another entity exercising public functions under legislative or administrative delegation, as a last resort to preserve the rule of law, as an exercise of the inherent judicial authority.

If your rights were not violated by a decision of the executive branch of the government, a judicial recourse may still be available, but usually not called judicial review. For example, if your contratual rights were violated by a private party (e.g. you are owed money), you can still sue the person in court as an ordinary civil lawsuit. In certain cases however, an administrative tribunal can make a decision regarding private disputes; the decision of the administrative tribunal, a public body, is subject to judicial review.

If your constitutional rights are violated by a primary legislation passed by the Parliament (or provincial legislature), you may apply to a competent court for declarative relief, but usually this is also not referred to as judicial review, despite some similarities and some intersections in practice.

The scope of judicial review is limited. The courts show considerable deferrence to the elected legislature and government and only exercise the power when all other legal resorts are exhausted. The legislature often provides administrative recourses with quasi-judicial characteristics (e.g. administrative tribunals, see later), which must be exhausted before the court steps in. The legislature sometimes deliberately limits or even attempts to bar judicial review through privative clauses. Although completely barring judicial review is not possible, it can influence the court's deferrence. Usually, one must obtain a leave (permission) from the court before commencing a judicial review proceedings.

Then, if the leave is granted, the judicial review proceeding is not a proceeding for the judge to substitute their own decision in place of what the original decision maker made. New evidences are generally not admissible in judicial review; the judge only considers what is involved in the attacked decision. In most cases, the judge assesses whether the decision-maker was reasonable in their interpretation of law and their exercise of legal authority; it does not matter whether the judge would have made a different decision. In most cases, if judicial review is granted, the original decision is quashed (cancelled) but it is remitted to the original administrative body for re-determination (usually with another officer or panel). Seeking judicial review does not automatically prevent the administrative decision from coming into force, unless the applicant specifically demands the stay of decision and the judge agrees.

There are exceptional cases where the judicial review is conducted on a standard of correctness, notably when procedural fairness is involved or when another important constitutional or general legal question should be determined conclusively. The applicable standard of review is based on the Supreme Court judgement in Canada (Minister of Citizenship and Immigration) v Vavilov. In such cases, the judge would make what they think should be the correct decision with respect to the part of decision that should be follow such standard. Even then, the judge usually would direct the original decision maker to make a new one consistent with their judgement, instead of making a new one.

What exactly is an administrative review

An administrative review, or reconsideration, is when the administrative body itself provides a way for an interested party to request a review of the original decision by the administrative body itself (although often by another officer within the same service). It is generally not a legal right, and only granted when there is a clear error (e.g. the decision maker had the wrong file) to ensure administrative certainty.

The term is usually not applied if there is a formal statutory structure of reexamination by another decision maker for an administrative decision, even if the new reexamination occurs within the same body.

or administrative tribunal?

Administrative tribunals are quasi-judicial bodies established by law (passed by legislatures) that makes independent decisions on behalf of the executive government. They are established to avoid costly and slow-moving lawsuits in courts and to specialize in specific areas of law to better serve the interests of justice.

There are several types of administrative tribunals:

  • dedicated conflict resolution tribunals between private persons, for example:
    • Landlord and Tenants Boards that resolve disputes arising from real estate leases
    • human rights tribunals where many discrimination claims in services and employment are resolved
    • labour relations boards that deal with the recognition of labour unions and conflicts (grievance) between unionized workers and employers
  • tribunals that review particular types of government decisions, e.g. the Immigration and Refugee Board of Canada, who has jurisdiction to hear appeals on certain types immigration decisions (e.g. deportation of a permanent resident)
  • tribunals that make independent decisions for the government, despite the tribunal itself being part of the executive branch, e.g.
    • the Competition Tribunal
    • the Copyright Board
  • other bodies exercising public statutory functions, e.g.
    • the professional regulatory bodies (e.g. law societies, colleges of physicians and surgeons) are administrative tribunals for the purpose of exercising functions delegated to them by law, even if often they are private societies, for example, the decision to or not to admit a lawyer by a law society is subject to judicial review as the law society is exercising its delegated public authority (to regulate who can practice law).

Some tribunals may have multiple functions described above; for example, the IRB is the first decision maker on the grant of refugee status, while also having statutory jurisdictions over appeals of certain immigration decisions (including the decision itself made over refugee status).

As all powers of an administrative tribunal must be based in law, only those decisions that the legislature said could be dealt by these tribunals can be to an administrative tribunals; for example, temporary visa decisions (e.g. for visit or studies) are not appealable before IRB, but judicial review of the officer's visa decision can be directly requested.

I get the impression it can happen in the work place, school or some sort of organization with a certain level of formality and structure.

If it concerns the government, it may involve an administrative action that may be subject to judicial review. For example, a federal government employee may have recourses with the Federal Public Sector Labour Relations and Employment Board, whose decisions are subject to judicial review. A public university's decision (including a student's grade) may also be an administrative decision subject to review. The internal university appeal procedures could be seen as similar to the functions of administrative tribunals, but these internal boards are usually not established by law and are appointed by internal university procedures.

Otherwise, it is a private dispute where a formal structure may be desirable for legal and moral reasons.

I also understand that it need not be fair, or at least what counts as fair is not defined.

A public body exercising a quasi-judicial function, particular an administrative tribunal, must be fair. It is a matter of natural justice where the court is not reluctant to correct an administrative decision maker. The duty of fairness generally does not apply to political or legislative decisions.

While there is no simple definition of what is fair and the application of the principles of natural justice necessarily depends on the case in question, there is a significant body of case law on what consists fairness (or rather, unfairness). For example, arbitrary or dishonest decisions are almost always unfair. Decisions made without possibility of being heard are often unfair. Undisclosed conflicts of interest can also bring fairness into question.

A private body in its private capacity (i.e. not exercising a public function) has no general constitutional or natural justice requirement to be fair, but the law may impose upon private persons a positive duty (e.g. provision of goods and services without racial or sex discrimination; dismissal without notice only possible for cause).

if it's a non-government organization, but when can a judicial review override an administrative review's decision?

If it concerns a non-government organization that is not exercising a public function, a judicial review is not possible; other recourses may be possible, e.g. an ordinary lawsuit, or recourses to a public body (e.g. if you have problems with a landlord, you can go to the LTB).

If it concerns an actual administrative decision, judicial review is granted, among other possible reasons:

  • when the decision maker lacks the jurisdiction to make the decision, e.g., when they make a decision outside their statutory powers
  • when the attacked decision is unreasonable; for example, when the decision is not supported by logic or evidences (that were submitted during the administrative decision making)
  • when it is incorrect on an important constitutional question or other question of law, or the principles of natural justice had been breached during the decision making process.
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    A key point is that one of the standard requirements in administrative law is "exhaustion of remedies." A dispute with an administrative agency is usually not "ripe" for review by a court (which means a court is not allowed to consider it yet) until all opportunities to change the decision within the administrative agency have been attempted without resolving the dispute adequately in the eyes of the person seeking to have a court intervene. Taking all efforts to review the administrative decision without turning to the regular courts is called exhausting your remedies.
    – ohwilleke
    Feb 27, 2023 at 17:00
  • In Canada are public universities considered a government organization and therefore judicial review is typically available? However this is only true for the university of a whole and not individual departments or buildings. I don't get this.
    – hellohello
    Feb 28, 2023 at 1:21
  • @hellohello Public universities's decisions are subject to judicial review only when they are carrying out an administrative public function resulting from statutory authority. I do not understand what you mean regarding individual buildings who cannot make any decisions. Departments are part of the university and certain decisions may be subject to judicial review. However, the courts do not intervene until you exhaust all internal university remedies. In addition, universities are given significant amount of autonomy and deference in respect to their academic freedom.
    – xngtng
    Feb 28, 2023 at 12:35
  • Just because judicial review is technically possible does not mean that it can do what you may want it to do. The scope of review is very limited and decision makers are presumed reasonable and owed deference.
    – xngtng
    Feb 28, 2023 at 12:36
  • You answered my question with, decisions are subject to judicial review only when they are carrying out an administrative public function.
    – hellohello
    Mar 7, 2023 at 8:01

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