Judicial Review

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 595-635

595

C H A P T E R 1 6

JUDICIAL REVIEW

A. INTRODUCTION

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

IMM IGR ATION L AW596

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.

B. THE FEDER AL COURT

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.

C. THE PROCESS OF JUDICIAL REVIEW

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

leave.

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.