Judicial Review

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

595

CHAPTER 16

JUDICIAL REVIEW

A. INTRODUCTION

Our legal system has long relied on the judiciary to supervise and

oversee the workings of government. As a measure of last resort, we

have depended on the courts to ensure that government off‌icials re-

main within the limits of the law and that suff‌icient regard has been

shown for the interests of individuals who are affected by the exercise

of power. The doctrine of the rule of law requires that governmental

off‌icials respect and work within set boundaries, 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 mechan-

isms to ensure that off‌icials remain within the proper, legally def‌ined

limits. Independent and impartial superv ision, however, has long been

recognized as a vital 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 will no doubt become

an increasingly important mechanism since recent legislation has denied

many groups access to internal mechanisms and appeals. Where these

IMMIGRATION L AW596

exclusions are in effect, judicial review may be the only opportunity

for some individuals to raise serious issues regarding the unfairness

of the process to which they have been subject, or the impropriety of

a decision relating to their status in Canada. This 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 FEDERAL 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 established in 1875.2

As a result of its statutory origins, the Federal Court has no inher-

ent jurisdiction. Thus, the court will have jurisdiction over a matter

only if it has been conferred eit her by the Federal Courts Act3 or by other

legislation.4 The Immigration and Refugee Protection Act (IRPA) provides

that, “with respect to any matter — a decision, determination or order

made, a measure taken or a quest ion raised” under the IRPA can be sub-

ject to a judicial review by the Federal Court.5 Interestingly, if there is

a conf‌lict between provisions in the Federal Courts Act and provisions

in the IR PA, the IRPA 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 2003, 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/98-106. 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 iew597

Canada consisted of two divisions: an Appeal Division and a Trial Div-

ision. In 2003, the Federal Courts Act was amended, and these div isions

became two separate courts: 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 IRPA provides: “Judicial review by the Federal

Court with respect to any matter — a decision, determination or order

made, a measure taken or a question raised — under this 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 decisions on applications

for permanent or temporary residence,13 decisions on inadmi ssibility,14

and decisions on pre-removal risk assessments.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 Citizenship and Immigration or the minister of Public

Safety and Emergency Preparedness may also make an application for

leave.

With respect to an application seeking review of a decision of the

Refugee Appeal Division (RAD) of the Immigration and Refugee Board

(IRB), section 73 explicitly grants the minister the power to make an

application for leave, whether or not the minister took part in the pro-

ceedings at the IRB’s Refugee Protection Division (RPD) or RAD.16 As

well, section 70(2) implicitly recognizes the 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.

10Ibid, s 198.

11Ibid, s 82(3).

12Ibid, s 82(4).

13 Ibid, s 72(1).

14Ibid.

15Ibid.

16Ibid,s 73.