Judicial Review: New Time Limits and a Helpful Primer

In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.

Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.

Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPAdid not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.

The time limit and the courts’ powers to extend the limit under the JRPA are the same as the one under the Federal Courts Act. Applicants are responsible for consulting the relevant statute(s) to review the time limits and take the necessary steps to ensure their application will not be dismissed.

The Role of Judicial Review

Judicial Review is the mechanism by which courts supervise the processes and decisions of administrative decision-makers to preserve the rule of law. Of relevance to health care professionals, administrative decision-makers include the Colleges’ statutory committees (e.g., the Discipline Committee) and the Health Professions Appeal and Review Board. The function of judicial review is to ensure that an administrative process is legal (i.e., within bounds of the law), reasonable, and fair in both process and outcome.

In Ontario, judicial review comes in two forms: applications for judicial review and statutory appeals from administrative decision-makers.

            Remedies Available

To know whether to bring an application for judicial review, it is important to understand what relief the court can order. The remedies from judicial review are limited but include:

• Mandamus – an order requiring a party to do something. For example, where a decision-maker has a duty to do something but did not, the court may require that decision-maker to fulfill that duty.
• Prohibition – prevents 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.
• Certiorari – an order that the decision under review is of no force and effect. If the court determines that the decision cannot be upheld, it will grant an order quashing the decision. The court may then send the matter back to the decision-maker (with directions) or, in rare circumstances, make the decision it considers appropriate.
• Injunction –an order stopping a party or prohibiting a party from doing something.
• Declaration– a statement from the court about the parties’ legal positions or law that applies to them

Standard of Review

The standard of review refers to the degree of scrutiny the court will apply in examining the substance of the decision under review. There are two standards of review: reasonableness and correctness. Determining which standard of review is applicable to a case can be complicated, and we recommend seeking legal advice on this issue.  

If the court is reviewing something on a reasonableness standard, it will be more deferential to the decision-maker. Generally, the court will uphold the decision if it falls within a range of possible, acceptable outcomes which are defensible in fact and law. There may be more than one reasonable decision and even though the court may make a different decision than the decision-maker, if the decision itself is reasonable it will be upheld.

Application of the correctness standard is rarer than the reasonableness standard. Under the correctness standard of review, the court will not be deferential. The court will make its own determination of the correct outcome.

            Procedural Fairness 

As noted above, the court will not only look at the substance of the decision but how a decision is made. Procedural fairness will include things like if parties were given an opportunity to have their case heard before the decision-maker decides on the matter. The “amount of fairness” a party receives is case-dependent, and we recommend seeking legal advice specific to your circumstances.

Given the new general time limit under the JRPA, parties considering judicial review should seek legal advice as soon as possible after receiving the decision of the administrative tribunal to ensure that they are not out of time to bring an application.   

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