This guide is general information only. It is not legal advice about your situation. This guide is not a substitute for a lawyer’s research, analysis and judgment. This guide is reliable as of the date of publication (January 2021). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.
The purpose of judicial review is to ensure the Tribunal has complied with the law in reaching its decision. The Court is usually concerned with determining whether the Tribunal had the authority to make the decision it made (i.e., its jurisdiction) or whether the Tribunal properly exercised that authority (i.e., applied or interpreted the law correctly). The Judicial Review Procedure Act (JRPA) provides that a court has the power to set aside a decision for an error of law, an absence of evidence or where the exercise of the power is unauthorized or invalid.
The main task of the Tribunal is to make findings of fact based on the oral and documentary evidence before it and then to apply those facts to the law. An application for judicial review is not an opportunity to persuade the Court that the Tribunal got the facts wrong, absent exceptional circumstances such as, for example, where the Tribunal made a finding of fact and there was no evidence before the Tribunal upon which it could base that finding of fact.
A judicial review of a Tribunal’s decision is not intended to be a re-argument of your application as you presented it to the Tribunal. A judicial review is also not an opportunity for you to repair any deficiencies in the presentation of your case before the Tribunal. The purpose of judicial review is for the Court to determine if the Tribunal made a legal error in your case. A judicial review has a very narrow focus – did the Tribunal make an error in law that would justify the Tribunal decision being altered or set aside?
Finally, it is important to note that a judicial review application is a “discretionary remedy”. This means that the Court has the power to dismiss a judicial review application on procedural grounds and without making a decision as to the substantive merits of the application. For example, a court may dismiss an application for being premature, for delay or because available alternative remedies were not chosen before filing an application (such as requesting a reconsideration by the Tribunal). These procedural issues are discussed more fully below.
What factors should I consider if I am thinking about applying for judicial review?
An application for judicial review is a lengthy and complicated legal procedure. Conducting an application for judicial review without the services of a lawyer is a difficult task. Where possible, you should obtain legal advice before starting any application for judicial review, including advice about whether judicial review is appropriate for your case, what your chances of success may be if you decide to proceed and what the possible negative financial consequences could be if you do not succeed
Also, it is useful to do some prior research on the law that will affect your application, including other decisions of the Divisional Court. You can examine the Rules of Civil Procedure (Rules) that will apply to your application, online at e-laws. You can find Divisional Court decisions online.
Several Ontario statutes (or Acts) and regulations set out the procedure to be followed to apply for judicial review. The procedural requirements are set out primarily under Rules 38 and 68 (under the Rules) and the JRPA. If you are thinking of applying for a judicial review, you should closely review Rule 38, Rule 68 and the JRPA. Several other rules, in addition to Rules 38 and 68, also apply to applications for judicial review. You will need to be familiar with all of them.
The specific procedural steps that you will need to take are set out below at: How do I prepare an application for judicial review?
Prematurity—are all decisions and orders of the Tribunal subject to applications for judicial review?
In general, only final decisions of the Tribunal are subject to applications for judicial review; interim decisions are not usually reviewable.
Interim decisions are those that do not finally determine the merits of the human rights application, the rights of the parties or finally resolve the dispute between the parties. Interim decisions are frequently procedural orders and include, for example, orders about production of documents, amendments to an application or response, or adjournments or deferrals. .
In contrast, final decisions are rulings as to the liability of the parties (i.e. whether the Code has been breached) and remedial orders (e.g. whether to award monetary compensation and/or public interest remedies, such as human rights training).
The Court will not generally interfere before the end of the Tribunal proceedings except in the clearest of cases. In most cases, any attempt to judicially review an interim decision of the Tribunal will be dismissed by the court as being premature. The Court is very reluctant to intervene in proceedings that are still ongoing before an administrative tribunal. See Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 (CanLII), for a discussion of the concept of prematurity at paragraphs 38-47.
Available alternative remedies
Am I required to request reconsideration at the Tribunal before I apply to the court for judicial review?
The Court has the power to dismiss an application for judicial review if the applicant has not first used an internal review procedure that was available to them. A Court may require an applicant to have exhausted their rights of any internal review procedure before bringing an application for judicial review.
The Court’s longstanding view is that an applicant should exhaust all his internal remedies and/or appeal routes within an administrative regime before seeking judicial review. Although there are exceptions to this rule, the most prudent approach is to file a request a reconsideration at the Tribunal before you file an application for judicial review.
The Tribunal has issued its own Rule of Procedure governing requests for reconsideration (Rule 26) as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. The Tribunal Rules and Practice Direction are both available on the Tribunal’s web site. It is a good idea to thoroughly review Rule 26 and the Practice Direction before you decide to make a request for reconsideration.
Delay—is there a time limit to apply for judicial review?
Yes. First, if your Tribunal decision is dated July 8, 2020 or after then you have thirty (30) days to commence an application for judicial review. This is a recent change to the Judicial Review Procedure Act, that came into effect with the passage of Bill 161, Smarter and Stronger Justice Act, 2020, which became Ontario law on July 8, 2020.
If you do not meet the thirty (30) day deadline, then you would have to ask the Court for an extension of time to be able to commence your application for judicial review. The Court may extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.
Second, if your Tribunal decision is dated July 7, 2020 or before then the time period for an application for judicial review is still governed by the pre-Bill 161 Ontario jurisprudence. The Courts have applied a general rule that an application for judicial review must be commenced within six (6) months. But it is a good idea to commence your application sooner. You should be able to do so within thirty (30) to sixty (60) days.
The Court always retains a discretion to dismiss an application for any delay past the six (6) month time period. The Court will typically examine the length of the delay, the explanation for a delay, and any prejudice to the respondent by the delay in commencing your application for judicial review. See Allen v. Bricklayers Masons Independent Union of Canada Local 1, 2020 ONSC 3369 (CanLII) where an application for judicial review was dismissed due to excessive delay.
Delay – after I file my application for judicial review, are there other time limits?
Yes. There are several procedural time limits that will affect your application for judicial review, which are set out in the Rules and, in particular, in Rules 38 and 68. These time limits exist to make sure that applications for judicial review proceed in a timely way. A failure to comply with a procedural time limitation may result in the Court awarding costs or ordering judgment against you.
For example, an applicant is required to deliver his or her application record and factum to the Court within thirty (30) days after the Tribunal’s record of proceeding is filed with the Court [see Rule 68.04(1)(a)].
Another important time limit in the Rules addresses dismissal of applications for delay: Rule 68.06. An application can be dismissed a) by a motion brought by a respondent to the application or b) by notice from the court registrar.
- Motion by a respondent: If the applicant has not either i) delivered an application record and factum within thirty (30) days after the Tribunal files the record of proceedings with the court or ii) filed a certificate of perfection with the court under Rule 68.05(1) then the respondent may make a motion on ten (10) days’ notice to the applicant to have the application dismissed for delay [see Rule 68.06(1)].
- Notice by the court registrar: If the applicant has not delivered an application record and factum and filed a certificate of perfection within one (1) year after the application was commenced, the registrar may serve notice on the applicant that the application will be dismissed for delay unless the applicant cures the default (i.e., the applicant must file and serve all the documentation that is necessary in order for the application for judicial review to be listed for hearing). Where an applicant fails to cure the default within ten (10) days after service of the court registrar’s notice, the registrar will make an order dismissing the application for delay (Form 68C), with costs [see Rule 68.06(2)].
What is the standard of review?
The standard of review is an important but very complicated legal concept in judicial review applications. It is too big a topic to fully discuss in this guidebook. However, it is important to know what standard of review may apply to the Tribunal decision so that you can properly argue this aspect of your case.
Section 45.8 of the Human Rights Code (Code) provides:
45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
The effect of section 45.8 is that it is not easy to have a decision of the Tribunal altered or set aside by the Divisional Court. An applicant has the burden of persuading the Court that the Tribunal’s decision is wrong in law. The Court will generally adopt a position of deference to the Tribunal. In simple terms, this means that the Court will show some hesitation in overturning a decision of the Tribunal.
The concept of standard of review addresses this question – to what extent should the Court defer to the decision of the Tribunal? In deciding this, two important factors considered by the Court are the nature of the issues raised in the judicial review and the relative expertise of the Tribunal and the Court with respect to the nature of the issue(s) raised.
The leading decision in Canada on the standard of review is Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, (Dunsmuir) which explains that there are two (2) standards of review – correctness and reasonableness. The correctness standard is the least deferential which means that the Tribunal’s decision must be right and not just within a range of acceptable or reasonable outcomes. The reasonableness standard is deferential which means that the Tribunal must come to a result that is within the range of reasonable outcomes and the Court does not necessarily have to agree with the Tribunal’s decision.
What standard of review applies to the Tribunal?
Section 45.8 of the Code states that the standard of review of a Tribunal decision is “patently unreasonable” (i.e., not just an unreasonable decision but a very unreasonable decision). However, it is important to note that section 45.8 predates the Supreme Court’s decision in Dunsmuir, which found that the standard of patently unreasonable should be discarded. This means that the Courts have not generally directly applied the standard of “patently unreasonable” but have indicated that section 45.8 is a clear legislative signal that Tribunal’s decisions are to be owed the highest deference.
There have been a number of important Court decisions that have analyzed the standard of review of a Tribunal decision under the Code. See, for example:
- Shaw v. Phipps, 2012 ONCA 155 (at paragraph 10)
- Peel Law Association v. Pieters 2013 ONCA 396 (at paragraph 132)
- Ontario (Community and Social Services v. WB, 2011 ONSC 288 (at paragraphs 19-28)
In most cases before the Divisional Court, the standard of review applied will be reasonableness. This means that the question the Court asks itself is whether the Tribunal decision is defensible on the facts and the law and the result is a reasonable one.