Judicial review

What is a judicial review?

A judicial review takes another look at a decision or order made by an administrative body. This review helps make sure the administrative body has been fair, reasonable, and lawful. If the review shows that the administrative body was unfair, unreasonable, or unlawful, a higher court can cancel a lower court or tribunal’s order or decision.

A judicial review can be complicated, expensive, and lengthy, and many legal experts would strongly recommend working closely with a lawyer if you decide to apply for one.

Is a judicial review different from an appeal? How?

Yes, a judicial review is different from an appeal. The difference between a judicial review and an appeal is whose decision is being reviewed. Judicial reviews typically deal with the decisions of administrative tribunals, while appeals typically deal with the decision of a court. Administrative tribunals are less formal organizations of legal professionals compared to actual courts within Canada’s court system.

Understanding the difference between a judicial review and an appeal can be complicated. Working with a lawyer is the best way to ensure you are following the correct process based on your case.

How long do I have to apply for a judicial review after I learn the decision about my case?

You must file a Notice of application at the Federal Court asking for leave (an oral hearing) and judicial review within 15 days of receiving your written negative decision.

You then have another 30 days to “perfect” your application. This means that you file an Application Record with your supporting documents and legal arguments.

What kind of solutions (prerogative remedies) could a court offer after a judicial review?

If your application for judicial review is successful, a court can offer five different kinds of solutions called prerogative remedies:

1. Certiorari: an order that the decision under review is of no force and effect (i.e. quashed). If the Court decides that the decision cannot be upheld (for example, because the decision-maker lacks jurisdiction or there has been a breach of procedural fairness), the Court may grant an order quashing the decision. The Court may then send the matter back to the decision-maker or, in exceptional circumstances, make the decision it considers appropriate.

2. Habeas corpus: a court petition that orders that a person being detained be produced before a judge for a hearing to decide whether the detention is lawful. This often applies to cases related to immigration, but it can also apply to the detention of criminal offenders.

3. Mandamus: an order requiring a party to do something. If the Court determines that the decision-maker has a duty to do something, but they did not, then the Court may require the decision-maker to fulfil that duty.

4. Prohibition: an order preventing a decision-maker from continuing an unlawful process or action. If the Court determines that the decision-maker has no authority to do something or it would be wrong for them to do something, the Court may prevent the decision-maker from doing or continuing to do that thing.

5. Quo warranto: a remedy used to challenge a person’s entitlement to a public office. It requires the person to prove they have the legal right to make decisions.

Can Legal Aid Ontario help me with a judicial review?

Legal Aid Ontario may be able to cover the costs of a lawyer who can help with your judicial review.

If you qualify financially and if your case has merit, you may be eligible for an opinion certificate. An opinion certificate pays for a lawyer to write their opinion on whether your case has any merit for a judicial review.

A Legal Aid Ontario staff lawyer will decide whether coverage for representation will be granted for all prerogative remedies.

To learn more, call us toll free at 1‑800‑668‑8258 Monday to Friday from 8 a.m. to 5 p.m. (EST).