Judicial Review

AuthorJamie Chai Yun Liew; Donald Galloway
C H A P T E R 1 6
Our legal system has long relied on the judici ary to superv ise and
oversee the workings of government. As a measure of last resort, we
have depended on the courts to ensure t hat government off‌icials re-
main within the limits of the l aw and that suff‌icient regard ha s been
shown for the interests of individuals who are affected by the exercis e
of power. The doctrine of the rule of law requires that governmental
off‌icials respect and work within set boundarie s, even when granted
wide discretion; it requires that they pay heed to the human impact of
their decisions and acknowledge that those affected by a future deci-
sion should have an opportunity to inf‌luence how it should be made. Of
course, government departments frequently create internal mech an-
isms to ensure that off‌icials remai n within the proper, legally def‌ined
limits. Independent and impartial superv ision, however, has long been
recognized as a v ital part of the judicial function that provides an ul-
timate protection from overzealous off‌icialdom.
Individuals who have been requ ired to negotiate the byzantine laby-
rinths created by our immigration laws and who, along the way, have
experienced arbitra ry and oppressive exercises of power have been able
to turn to the courts for redress. Judicial review w ill no doubt become
an increasingly impor tant mechanism since recent legislation has denied
many groups access to internal mechanisms and appeals. Where the se
exclusions are in effect, judicial rev iew may be the only opportunit y
for some individuals to raise serious issues regard ing the unfair ness
of the process to which they have been subject, or the impropriety of
a decision relating to their st atus in Canada. Thi s chapter provides a
brief overview of the proces s of judicial review, of the grounds that may
support an application, and of the remedies an applicant may seek.
The Federal Court is a statutory body created in 1971 under the au-
thority of section 101 of the Constitution Act, 1867 for the “better ad-
ministration of the laws of Canada.”1 The court is a successor to the
Exchequer Court of Canada, which was e stablished in 1875.2
As a result of its statutory origins, the Federal Court h as no inher-
ent jurisdiction. Thus, the court will have jurisd iction over a matter
only if it has been conferred eit her by the Federal Courts Act3 or by other
legislat ion.4 The Immigration and Refugee Protection Act (IRPA ) provides
that, “with respect to any matter — a decision, determi nation or order
made, a measure taken or a quest ion raised” under the I RPA can be sub-
ject to a judicial review by the Federal Court.5 Interestingly, if there is
a conf‌lict between provisions in t he Federal Courts Act and provisions
in the IR PA, the IR PA prevails.6
According to the Federal Courts Act, the court consists of a Chief
Justice and thirty-six other judges.7 The Federal Court website reveals
that there are currently thirty-four full-time judges, seven supernumer-
ary judges, and f‌ive prothonotaries.8 Until 20 03, the Federal Court of
1 (UK), 30 & 21 Vict, c 3, s 101, reprinted in R SC 1985, Appendix II, No 5.
2 Gus Van Harten, Ger ald Heckman, & David Mull an, Administrative Law: Cases,
Text and Material s, 6th ed (Toronto: Emond Montgomery, 2010) at 1043 [Van
Harten et al].
3 RSC 1985, c F-7.
4 Van Harten et al, above note 2 at 1051.
5 Immigration and Refugee Protecti on Act, SC 2001, c 27, s 72(1) [IRPA].
6 Ibid, s 75.
7 Federal Courts Act, above note 3, s 5.1(1).
8 Ibid, s 12. Prothonotaries he ar matters set out in rule 51 of the Federal Court s
Rules, SOR /9 8-10 6. They are f ull judicial off‌icers, appoi nted under s 12 of the
Federal Courts Act, who exer t many of the Federal Court judges’ po wers and
functions. (See Feder al Court, “Judges and Prothonotar ies” (12 December 2012),
online: cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Bio; see Felipa
v Canada (Minister of Citizen ship and Immigration), 2011 FCA 272, which held
that the Chie f Justice does not have the authority u nder s 10(1.1) of the Fede ral
Judicial Rev iew 59 7
Canada consisted of t wo divisions: an Appeal Division and a Trial Div-
ision. In 2003, the Federal Courts Act was amended, and these div isions
became two separate court s: the Federal Court of Appeal and the Fed-
eral Court.
1) Commencing an Application for Judicial Review
Section 72(1) of the IR PA provides: “Judicial review by the Federal
Court with respect to a ny matter — a decision, determinat ion or order
made, a measure taken or a quest ion raised — under thi s Act is com-
menced by making an application for leave to the Court.”9
Hence, numerous matters are subject to judicial review, including
the following examples: refugee decisions,10 decisions to continue the
detention of a per son following a detention review11 or to impose condi-
tions on a person released from detention,12 deci sions on appl ication s
for permanent or temporary residence,13 decisions on i nadmi ssibility,14
and decisions on pre-removal risk asse ssments.15 In effect, any individ-
ual who has made an application under the I RPA or has been subject to
a determination under the I RPA may submit an application for leave to
the Federal Court and thereby commence the proces s of judicial review.
The minister of Citizensh ip and Immigration or the min ister of Public
Safety and Emergency Preparedness may also ma ke an application for
With respect to an application seeking review of a decision of the
Refugee Appeal Division (RA D) of the Immigration and Refugee Board
(IRB), section 73 explicitly grants the minister t he power to make an
application for leave, whether or not the minister took part in the pro-
ceedings at the IRB’s Refugee Protection Div ision (RPD) or RAD.16 As
well, section 70(2) implicitly recognizes t he minister’s power to apply
Courts Ac t to request that a retired jud ge of a superior court act as a deputy
judge of the Federal Cour t after attaining the a ge of seventy-f‌ive.
9 IRPA, a bove note 5, s 72(1). Any matter include s a decision, determinat ion, or
order made, a meas ure taken, or a question rais ed.
10 Ibid, s 198.
11 Ibid, s 82(3).
12 Ibid, s 82(4).
13 Ibid, s 72(1).
14 Ibid.
15 Ibid.
16 Ibid, s 73.

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