Fundamentals of Judicial Review

Prepared For: The Legal Education Society of Alberta

For Presentation in: Calgary, Alberta September 16, 2014 Edmonton, Alberta September 17, 2014 Introduction Prepared For: Legal Education Society of Alberta Fundamentals of Judicial Review

Presented by: William Shores QC Shores Jardine LLP Edmonton, Alberta

Jeremy Schick Alberta Labour Relations Board Edmonton, Alberta

For Presentation In: Calgary – September 16, 2014 Edmonton – September 17, 2014 INTRODUCTION

What is judicial review?

Judicial review is the mechanism through which the courts supervise the actions of governments and their agencies. In the leading case, Dunsmuir v. New Brunswick, the Supreme Court of Canada describes the function of judicial review:

By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.1

Professor David Mullan has described the background to the courts’ jurisdiction to supervise the actions of government:

Historically, the English courts corrected unlawful administrative action through the various prerogative writs, later supplemented by the equitable remedies of injunction and declaration and, to a limited degree, monetary relief. This was the system of judicial review inherited from England by the various provinces of Canada.2

In Alberta, this inherent jurisdiction has been subsumed into the remedy of judicial review under the Alberta Rules of Court. Now, the remedy of judicial review includes the prerogative writs, injunction and declaration. Damages cannot be obtained through judicial review.

Prerogative writs

The prerogative writs3 are:

 Certiorari—allows a court to review the record of an administrative body to determine whether the administrative body is acting lawfully, reasonably and fairly. The court may grant an order “quashing” or setting aside the decision and remitting back to the administrative body for reconsideration. In some cases, a court will simply set the decision aside and not remit it to the administrative body for reconsideration.

1 [2008] 1 S.C.R. 190; 2008 SCC 190 at para. 28. 2 Mullan, Administrative Law (3d) at p. 455. 3 For an extensive discussion of the prerogative writs, see Jones and deVillars, Principles of Administrative Law (6th Ed) at pp. 663 to 698.

1  Mandamus—allows a court to make an order that compels a government authority to perform a legal duty. Mandamus can only be granted if there is a legal duty; it will not be granted to compel an administrative body to exercise a discretion in a particular way.  Prohibition—allows a court to make an order that prevents an administrative body or government official from acting unlawfully. It is directed at decisions that have yet to be made.  Quo Warranto—allows a court to require a decision maker to show by what legal authority he or she is acting and to order that the decision maker cease acting if not authorized. Historically, this writ was used to challenge a person’s entitlement to public office; however, in the case of elected officials it has largely been superseded by statutory procedures and in other cases by the use of certiorari and prohibition.  Habeus Corpus—a venerable writ of the court associated with civil liberties. An order of habeus corpus requires an official who has custody of a person to bring that person before the court and demonstrate to the court the authority by which he or she holds the person. It has become a very flexible remedy that governs not only penal detention but also other forms of administrative detention. It can also be used to relieve against the conditions under which a person is held.

Injunctions and declarations

The historical roots of injunction and declaration lie in private law. Before the introduction of the modern judicial review rules, injunctions and declarations could only be sought through an action; now they are an integral part of the power of a court on judicial review.4

 Injunctions—an injunction can be used to stop an administrative body from acting unlawfully or to compel it to act. Significantly, a court will not grant an injunction against the Crown. Injunctions take a number of forms—they can be prohibitory or mandatory; they can be permanent or interim. An interim injunction allows the court to “freeze” matters temporarily until a full court application on the issue can be heard. This is a significant addition to the judicial review panoply, because the prerogative writs are final orders and cannot be issued on an interim basis.  Declaration—a court has the power to make a legal “declaration of rights.” A declaration does not compel a party to abide by it. However, by convention in Canada, the Crown,

4 For an extensive discussion of injunctions and declaration in the judicial review context, see Jones and deVillars, supra at pp. 699 to 734.

2 which is immune from injunctions, respects a declaration. As neither prerogative remedies nor injunctions lie against the Crown, declaration is often the only way of stopping unlawful Crown action. Neither Parliament nor the Legislature can remove the ability of the Court to undertake judicial review of government action

Legislation frequently includes “privative clauses” which purport to oust the jurisdiction of the court to exercise its judicial review authority. These are frequently cast in the widest terms. For example, the Expropriation Act5 provides:

Proceedings before inquiry officer 17 No proceedings by or before an inquiry officer or the Board in carrying out the functions of an inquiry officer shall be restrained by injunction, prohibition or other process or proceedings in any court or are removable by certiorari or otherwise into court nor shall any report or recommendation by the inquiry officer or the Board in carrying out the functions of an inquiry officer be subject to review in any court.

However, these privative clauses cannot oust the jurisdiction of the court, which is constitutionally entrenched. The Supreme Court noted in Dunsmuir at para. 31:

The legislative branch of government cannot remove the judiciary's power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090, "[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection". In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits.

Conclusion Judicial review is a flexible tool that provides the courts with the authority to ensure that government only exercises the power granted to it and does so reasonable and fairly.

5 RSA 2000, c. E-13.

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