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Judicial Review Process in Canada Demystified

Last Updated on January 16, 2024


The concept of judicial review is one that often confuses and perplexes many individuals.

However, its importance and impact on the Canadian legal system cannot be understated.

Judicial review refers to the power of the courts to review and assess the constitutionality of laws and decisions made by governmental bodies.

It serves as a check and balance mechanism to ensure that laws align with the principles outlined in the Canadian Constitution.

In Canada, the judicial review process involves the Supreme Court and other lower courts assessing the constitutionality of laws and decisions.

When a law is challenged, the court examines the legislation, analyzes its impact on constitutional rights, and determines whether it violates any constitutional provisions.

This process provides a vital safeguard against potential violations of individual rights and freedoms, ensuring a fair and just society.

The implications of the judicial review process are far-reaching.

It defines the scope of governmental power, protects fundamental rights, and promotes accountability within the legislative and executive branches.

It acts as a guardian of the Constitution, ensuring that the rights and liberties of Canadians are upheld.

Understanding the significance of judicial review in Canada is crucial for citizens, lawmakers, and legal practitioners alike.

By demystifying the process, individuals can appreciate the role of the judiciary in safeguarding democracy and preserving the rights and freedoms of all Canadians.

Overview of Judicial Review in Canada

In Canada, judicial review is a fundamental aspect of our legal system.

It allows the courts to review the decisions and actions of the government or other public bodies, ensuring that they adhere to the principles of legality and constitutionality.

What judicial review entails

Judicial review entails a thorough examination of the legality and constitutionality of government decisions or actions.

The courts have the authority to review the processes followed, the evidence considered, and the reasons given for the decisions made.

The role of the judiciary in Canada

Through judicial review, the courts play a vital role in preserving the rule of law and protecting individual rights and freedoms.

The judiciary acts as a constitutional watchdog, ensuring that the government acts within its legal bounds and respects the rights of individuals.

The role of the judiciary in Canada is to interpret and apply the law impartially.

They are tasked with resolving disputes, upholding the principles of justice, and safeguarding the rights and interests of all Canadians.

Judicial review serves as a cornerstone of Canadian democracy. It ensures that the government is held accountable for its actions and decisions.

By subjecting these actions to the scrutiny of the courts, judicial review prevents potential abuses of power and promotes transparency and fairness in governance.

Importance of judicial review as a cornerstone of Canadian democracy

  1. The importance of judicial review extends beyond individual cases.

  2. It shapes and influences the development of the law by establishing precedents and clarifying legal principles.

  3. Judicial decisions made during the review process often have far-reaching implications for future cases and government actions.

  4. Moreover, judicial review plays a crucial role in protecting minority rights and ensuring that the rights of marginalized groups are not disregarded.

  5. It acts as a safeguard against any potential oppression or discrimination, ensuring that the government exercises its power in a manner consistent with the principles of equality and justice.

Basically, judicial review plays a vital role in Canada’s legal system by ensuring the legality, constitutionality, and fairness of government actions and decisions.

The judiciary acts as a check on governmental power, upholding the rule of law and safeguarding individual rights and freedoms.

It is a cornerstone of Canadian democracy, promoting accountability, transparency, and the protection of minority rights.

Read: Diversity and Inclusion in Canada’s Judiciary

Constitutional Foundations of Judicial Review in Canada

In order to understand the judicial review process in Canada, it is important to first delve into the constitutional foundations that underpin it.

This section will explain the Canadian constitution, its significance, and the role played by the Canadian Charter of Rights and Freedoms.

In addition, we will discuss section 52 of the Constitution Act, 1982.

The Canadian Constitution and its Importance

  1. The Canadian constitution serves as the supreme law of the land, outlining the rules and principles that govern the country.

  2. It establishes the division of powers between the federal government and the provinces, ensuring a balance of authority.

  3. Furthermore, the constitution enshrines the fundamental rights and freedoms of individuals, safeguarding democracy and equality in Canada.

  4. These rights are crucial in protecting citizens from arbitrary government actions and promoting the rule of law.

  5. Overall, the Canadian constitution provides the framework within which constitutional challenges and judicial reviews take place.

Reference to the Canadian Charter of Rights and Freedoms

  1. The Canadian Charter of Rights and Freedoms, enacted in 1982, is a vital component of the constitution.

  2. It guarantees certain fundamental rights and freedoms, including freedom of expression, religion, and association.

  3. The Charter also affirms equality rights, protecting individuals from discrimination based on various grounds.

  4. These rights and freedoms are essential to Canada’s democracy and reflect its commitment to upholding human rights.

  5. Moreover, the Charter empowers individuals to challenge laws and government actions that infringe upon their rights.

Section 52 of the Constitution Act, 1982

  1. Section 52 of the Constitution Act, 1982 establishes the principle of constitutional supremacy.

  2. It declares that any law inconsistent with the constitution is of no force or effect.

  3. This provision grants courts the authority to review the constitutionality of legislation and government actions.

  4. Through this process, the judiciary acts as a check on the exercise of power by the legislative and executive branches.

  5. When a court finds a law to be unconstitutional, it may strike it down or read it down to bring it in line with the constitution.

Therefore, the Canadian constitution and the Canadian Charter of Rights and Freedoms form the bedrock of judicial review in Canada.

These foundational documents outline the rights, freedoms, and principles that courts use to assess the constitutionality of laws and government actions.

Section 52 of the Constitution Act, 1982 cements the judiciary’s role in upholding the supremacy of the constitution.

By understanding these constitutional foundations, we gain insights into the roots of the judicial review process and its importance in preserving Canada’s democratic values.

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Initiating Judicial Review

Overview of the parties involved: applicants and respondents

  1. The judicial review process in Canada begins with two main parties: the applicants and the respondents.

  2. The applicants are the individuals or organizations seeking a review of a decision made by a government body.

  3. The respondents, on the other hand, are the government bodies whose decisions are being challenged.

  4. The role of the applicants is to present their case and argue why the decision should be reviewed.

  5. The respondents, on the other hand, must defend their decision and provide justification for it.

  6. Both parties may be represented by legal counsel to present their arguments effectively.

The types of courts that handle judicial review cases

  1. In Canada, judicial review cases can be heard in various types of courts, depending on the nature of the decision being challenged.

  2. The Federal Court of Canada is the main court responsible for handling most judicial review cases.

  3. However, certain decisions made by federal tribunals may be reviewed by a federal court or the Federal Court of Appeal.

  4. Provincial superior courts can also handle judicial review cases concerning decisions made by provincial administrative bodies.

  5. The Supreme Court of Canada is the final appellate court and may also hear certain judicial review cases.

Importance of standing, the threshold for initiating a review

  1. Standing refers to the legal right of a person or organization to bring a case before a court.

  2. To initiate a judicial review, the applicants must demonstrate that they have sufficient standing.

  3. Standing requires the applicants to show a direct and specific interest in the decision being challenged.

  4. The threshold for standing is relatively high, and not everyone affected by a decision will have standing.

  5. The purpose of this requirement is to ensure that only those with a genuine interest can initiate a review.

  6. If the applicants do not possess standing, their case will be dismissed without being heard on its merits.

In a nutshell, initiating a judicial review in Canada involves the applicants and respondents presenting their cases before the appropriate courts.

The applicants must establish their standing, demonstrating a direct and specific interest in the decision being challenged. Different courts handle judicial review cases depending on the nature of the decision.

The Federal Court of Canada is the primary court for most reviews, but federal tribunals’ decisions may be reviewed by other courts.

Provincial superior courts can also hear cases related to provincial administrative decisions.

The threshold for standing is crucial as it ensures that only those with a genuine interest can seek a review.

By understanding these elements, individuals and organizations can navigate the judicial review process in Canada more effectively.

Read: Famous Canadian Judges and Their Impact

Grounds for Judicial Review

Discussion on the doctrine of ultra vires

  1. The doctrine of ultra vires refers to actions that exceed the legal authority of a decision-maker.

  2. It is a ground for judicial review when a decision-maker acts beyond its prescribed powers.

  3. This doctrine ensures that decision-makers do not overstep their boundaries and stay within the limits of their authority.

  4. The court can review decisions made by any public body or administrative agency if they are found to be ultra vires.

  5. Ultra vires decisions are considered legally invalid and can be struck down by the court.

Analysis of the concept of jurisdictional error

  1. Jurisdictional error occurs when a decision-maker makes an error in interpreting its own jurisdiction.

  2. It refers to a decision that is made outside the legal authority or jurisdiction of the decision-maker.

  3. Jurisdictional error is a grounds for judicial review as it can result in unfair or unlawful decisions.

  4. The court can review decisions that involve jurisdictional errors and can set them aside if necessary.

  5. Jurisdictional error can also occur when a decision-maker fails to consider relevant factors or relies on irrelevant ones.

Procedural fairness and natural justice principles

  1. Procedural fairness and natural justice principles are essential elements of the judicial review process.

  2. Procedural fairness ensures that parties involved in a decision-making process are treated fairly and given a chance to present their case.

  3. It requires decision-makers to follow fair procedures, such as providing notice, an opportunity to be heard, and reasons for their decisions.

  4. Natural justice principles demand impartiality and unbiased decision-making by decision-makers.

  5. These principles protect individuals from arbitrary or unfair decision-making by public bodies or administrative agencies.

In short, grounds for judicial review in Canada include the doctrine of ultra vires, which addresses actions exceeding legal authority.

Jurisdictional error refers to errors in interpreting jurisdiction, and procedural fairness ensures fair treatment.

Natural justice principles demand unbiased decision-making.

These grounds ensure that the judicial review process upholds the principles of legality and fairness.

Read: Female Judges in Canada: Breaking Barriers

Judicial Review Process in Canada Demystified

Steps in the Judicial Review Process

A successful judicial review process involves several important steps that ensure a fair and thorough examination of the case. These steps include:

Filing an application for leave

  1. The process begins when an individual or organization files an application for leave.

  2. The application should clearly state the grounds for seeking judicial review.

  3. The court then determines whether there are sufficient reasons to grant leave.

  4. If leave is granted, the case proceeds to the next stage.

Case management and scheduling

  1. The court sets a timetable for the various stages of the judicial review process.

  2. This includes deadlines for the submission of documents and other evidence.

  3. The court may also schedule a case management conference to discuss the proceedings.

  4. During this phase, the court ensures that the process is efficient and expedient.

Oral and written submissions by both parties

  1. Both the applicant and the responding party have the opportunity to present their arguments.

  2. Oral submissions allow each party to provide an in-person explanation of their position.

  3. Written submissions, on the other hand, provide a more detailed and comprehensive presentation.

  4. These submissions include legal briefs, supporting documents, and relevant case precedents.

Deliberation and rendering of judgment

  1. Once all submissions have been made, the court reviews the evidence and arguments.

  2. The judges carefully consider the legal principles and relevant precedents.

  3. After thorough deliberation, the court renders its judgment, either in favor or against the applicant.

  4. The judgment includes an explanation of the court’s reasoning and the final decision.

It is important to note that the length of the judicial review process can vary depending on the complexity of the case and the workload of the court.

While some cases may be resolved relatively quickly, others may take several months or even years to reach a final decision.

In the end, the steps involved in the judicial review process ensure that all parties have a fair opportunity to present their arguments and that the court can make an informed decision based on the law and precedent.

This process plays a critical role in Canada’s legal system by ensuring accountability and upholding the rule of law.

Factors Considered by the Courts

When conducting a judicial review in Canada, the courts take into account various factors.

They examine the reasonableness and correctness of decisions made by administrative bodies, refer to the Oakes test for limiting rights under the Charter, consider the deference given to these bodies, and analyze relevant case law.

By considering these factors, the courts aim to ensure that decisions are made in accordance with the law and that the rights of individuals are protected.

Examination of the reasonableness and correctness standards

When conducting a judicial review, the courts carefully examine the reasonableness and correctness of the decisions made by administrative bodies.

They assess whether the decisions were within the scope of the authority of the body and whether they were made in accordance with the principles of administrative law.

Reference to the Oakes test for limiting rights under the Charter

The courts also consider the Oakes test, which is used to determine whether a limitation on rights under the Canadian Charter of Rights and Freedoms is justified.

This test assesses whether the limitation is rationally connected to a pressing and substantial objective, whether it impairs the right minimally, and whether the benefits outweigh the limitations.

The deference given to administrative bodies

Administrative bodies are given a certain degree of deference by the courts when it comes to their decisions.

The courts recognize that these bodies possess specialized knowledge and expertise in their respective fields, and therefore, they are more inclined to defer to their interpretations of legislation or policy decisions.

However, this deference is not absolute and can vary depending on the circumstances of each case.

Consideration of relevant case law

  1. Previous case law plays a significant role in the judicial review process in Canada.

  2. Judges examine past decisions in similar cases, relying on precedents to guide their own judgments.

  3. This helps ensure consistency in the application of the law and provides a framework for analyzing and interpreting legal issues.

  4. The judicial review process plays a crucial role in maintaining the balance of power in Canada’s legal system.

  5. It allows for the accountability of administrative bodies and ensures that their decisions are fair, reasonable, and in compliance with the law.

  6. By providing a mechanism for individuals and organizations to challenge these decisions, judicial review promotes transparency and upholds the principles of justice and democracy.

Most importantly, the factors considered by the courts during the judicial review process help shape the outcome of cases and contribute to the overall development of administrative law in Canada.

Courts carefully analyze reasonableness, correctness, the Oakes test, deference, and case law to navigate legal complexities and deliver justice, protecting the rights of individuals involved.

Judicial Remedies

Overview of the types of remedies that can be granted

When it comes to judicial review in Canada, there are several types of remedies that can be granted.

These remedies aim to correct any unlawful or unfair actions taken by government bodies.

The most common types of remedies include:

  1. Declaratory Relief

  2. Injunctions

  3. Quashing Orders

  4. Prohibition

  5. Mandamus

  6. Damages

Each remedy serves a specific purpose and is granted depending on the circumstances of the case.

The declaratory remedy and its implications

The judiciary employs the declaratory remedy as a powerful tool to clarify the rights and obligations of disputing parties.

It is a judicial pronouncement that does not automatically enforce any action, but rather establishes legal certainty.

By seeking a declaratory remedy, individuals or organizations can obtain a formal declaration regarding the validity or legality of a law, regulation, or government action.

This remedy is especially useful when the infringement on rights is ongoing or when damages may not be an adequate remedy.

Importantly, a declaratory remedy can have broader implications beyond the specific case at hand. It can set a precedent and provide guidance for future cases involving similar issues.

This ensures consistency in the application of law and helps protect individual rights and freedoms.

The potential of orders of prohibition or mandamus

  1. In addition to declaratory relief, orders of prohibition and mandamus are other remedies available in the judicial review process.

  2. An order of prohibition prevents a government body from taking an action deemed unlawful or beyond its authority.

  3. It serves to restrain the exercise of power that may result in harm or injustice.

  4. On the other hand, an order of mandamus compels a government body or official to fulfill a legally obligated duty or action.

  5. It ensures that public authorities act in accordance with the law and fulfill their responsibilities.

  6. To maintain the rule of law, protect individual rights, and prevent abuse of power, government bodies or officials use both orders of prohibition and mandamus.

Overall, the judicial remedies available in the judicial review process play a crucial role in upholding the principles of fairness, legality, and accountability in Canadian governance.

They provide individuals and organizations with the necessary means to challenge unlawful government actions and seek justice.

The Canadian judicial system maintains the balance of power and protects citizens’ rights through declaratory relief, orders of prohibition, mandamus, and other remedies.

Impact on government actions and decision-making processes

  1. The power of judicial review in Canada influences government actions and decision-making.

  2. Judicial review ensures that governments act within the boundaries set by the Canadian Constitution.

  3. It holds government officials accountable and prevents abuses of power.

  4. Judicial review empowers courts to invalidate or change unconstitutional laws or government actions.
  5. Government agencies must consider the possibility of judicial review when making policy decisions.

  6. Judicial review acts as a check on executive power, helping to maintain the rule of law.

The balance between judicial review and parliamentary supremacy

  1. The concept of parliamentary supremacy is a fundamental principle in Canadian constitutional law.

  2. Judicial review poses a challenge to parliamentary supremacy by allowing courts to strike down laws.

  3. There is an ongoing debate about the appropriate balance between judicial review and parliamentary supremacy.

  4. Advocates for parliamentary supremacy argue that it is essential for democratic governance.

  5. On the other hand, proponents of judicial review believe it is necessary to protect individual rights.

  6. The Supreme Court of Canada plays a crucial role in resolving conflicts between these two principles.

Consideration of criticisms and controversies surrounding judicial review

  1. While judicial review is a vital aspect of Canadian democracy, it is not without criticism.

  2. Critics argue that unelected judges should not have the power to overturn laws passed by elected representatives.

  3. They claim that judicial review undermines the democratic process and can lead to judicial activism.

  4. Courts generate controversies when perceived as making politically motivated decisions.

  5. There are concerns about the potential for judicial review to interfere with the legislative branch.

  6. Proponents of judicial review counter these criticisms by highlighting its role in protecting minority rights.

  7. They argue that courts provide a necessary check on legislative actions that violate constitutional rights.

To sum it up, the implications of judicial review in Canada are far-reaching and significant.

It impacts government actions, decision-making processes, and the delicate balance between judicial review and parliamentary supremacy.

Despite existing criticisms and controversies, one cannot underestimate the role of judicial review in upholding the rule of law and protecting individual rights.

As Canada continues to evolve, the role of the judiciary in reviewing government actions will remain a crucial aspect of the country’s democratic system.


The blog post provided a comprehensive overview of the judicial review process in Canada.

Understanding the judicial review process is crucial for citizens and legal professionals to ensure accountability and protect fundamental rights.

Encourage individuals to explore related cases and seek legal guidance when necessary for a deeper understanding of Canada’s judicial review process.

Stay informed and engaged in our justice system to uphold the principles of fairness and justice for all.

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