What is Judicial Review?

What is Judicial Review?

August 26, 2020

By Brian Babcock

Judicial review is a process by which courts supervise decisions of administrative bodies, to make sure that the decisions are fair, reasonable, and consistent with the law.

If a person (or corporation) is dissatisfied by an administrative decision, they may have a right of appeal, or may apply for judicial review. The two processes are quite different, although people often use the terms loosely as if they were the same. They are distinct, and different.

In Ontario, judicial review takes place before a three judge panel of the Divisional Court. Judicial review is not a full rehearing of the entire case. It focuses on the fairness or reasonableness of the decision, unlike an appeal, which generally considers the correctness of the decision.

This means that the court will defer to the administrative decision in most cases where the decision falls within a range of possible acceptable outcomes based on the facts and the law. There may be more than one reasonable answer possible and the judges will not interfere with the decision just because they might have decided the case differently.

The court might also interfere where there was a lack of procedural fairness to the parties, looking at the procedural requirements of the law applied by the administrative body; the general provisions of the Statutory Powers Procedure Act, if applicable; and the principles of natural justice.

For a decision to be overturned, the court must be convinced that the decision is not logical, or does not properly consider the evidence, the law, and the impact of the decision on the parties and the community.

A standard of correctness only applies in limited situations involving:

  • Constitutional questions;
  • General questions of central importance to the legal system that require uniform and consistent answers; and
  • Questions concerning the jurisdictional lines between two administrative decision makers.

Where the standard of correctness does not apply, even if the decision is wrong, it may be final – as lawyers, we find this a very hard concept for clients to accept, but it is how the system works.

This simple short article is just a broad overview of judicial review. It does not explain procedure or other details.

Although the Divisional Court has published an online procedural guide (which is one of the sources I referred to in writing parts of this article), applying for judicial review is a tricky business, and most people are well advised to seek the assistance of a lawyer to prepare and argue their case if they are unhappy with a decision of an administrative body.