Judicial review of executive decisions is governed by the general rules of administrative law under the common law, and constitutional law arising under the Canadian Charter of Rights and Freedoms (Canada’s bill of rights), the federal division of powers in the Constitution Act, 1867, the aboriginal and treaty rights under Section 35 of the Constitution Act, 1982, and the common law.

However, the courts contextualise the application of these principles to particular decision-makers. In addition, there are highly specific regimes for particular decision-makers, which mostly concern procedural issues.

Provincial superior courts and the Federal Court of Canada have jurisdiction to hear judicial reviews of executive decisions. Every court in Canada can hear challenges to the constitutionality of legislation, if the dispute (ie the parties and relevant statute) falls within their jurisdiction. For example, a corporation may challenge the constitutionality of any legislation in enforcement proceedings brought against it.

Executive decisions are subject to judicial review under public law, but only where there is an exercise of statute authority and where that exercise is of a sufficiently public character. The courts consider a variety of factors in answering this question, including:

• the character of the matter for which review is sought;
• the nature of the decision-maker and its responsibilities;
• the extent to which a decision is founded in and shaped by law as opposed to private discretion;
• the body’s relationship to other statutory schemes or other parts of government;
• the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
• the suitability of public law remedies; and
• the existence of a compulsory power.

Based on these principles, most executive decisions are subject to judicial review. The major exception is employment decisions by public authorities. These are not subject to judicial review, and are governed by the private law of contract.

Constitutional challenges to primary legislation can be brought under:

• the Canadian Charter of Rights and Freedoms (Canada’s bill of rights);
• the federal division of powers in the Constitution Act, 1867; and
• the aboriginal and treaty rights under Section 35 of the Constitution Act, 1982.

Courts can enforce these constitutional constraints in challenges to legislation, including in Applications for Judicial Review where executive decisions are required by statute.

Canada has a constitutionally entrenched bill of rights, the Canadian Charter of Rights and Freedoms, which was adopted in 1982. It enshrines the following:

• fundamental freedoms (conscience and religion, expression, association, assembly);
• democratic rights (voting);
• mobility rights;
• criminal justice rights (eg, the presumption of innocence);
• equality rights; and
• minority language education rights.

These rights are not absolute. Governments may infringe them if those limits are demonstrably justifiable, based on a proportionality test. In addition, governments may shield legislation from constitutional challenge under most Charter rights under the notwithstanding clause.       

Canada is a federal state. The Constitution Act, 1867 establishes two orders of government – the federal government and ten provincial governments – and allocates jurisdiction over policy matters between them. The federal government has jurisdiction over important areas of economic policy, including:

• banking;
• transportation;
• international trade;
• competition law;
• broadcasting; and
• intellectual property.

However, the provinces have authority over the following:

• property and contract law;
• municipalities;
• land use;
• labour relations;
• insurance; and
• health care.

Aboriginal and treaty rights were constitutionalised in 1982 by Section 35 of the Constitution Act, 1982. These include historic treaties, as well as modern treaties that cover Northern Quebec, the Yukon, Nunavut, and parts of British Columbia. They also protect indigenous land rights (aboriginal title) and rights to engage in certain activities (eg, resource extraction, such as hunting and fishing). Canada has a large and growing number of indigenous governments that wield authority under public law, and whose decisions are now increasingly the subject of judicial reviews and constitutional challenges.

Constitutional challenges to secondary legislation can be brought on the same basis as to primary legislation. In addition, secondary legislation can be challenged for being ultra vires primary legislation. The basis for ultra vires challenges to secondary legislation has evolved. Until recently, secondary legislation could only be challenged for being inconsistent with the purpose of the enabling statute, on the basis that they are irrelevant, extraneous or completely unrelated to that purpose. However, secondary legislation is now subject to reasonableness review, like other executive decisions (described further below).

It is possible to challenge government decisions that only affect one person, on both constitutional and administrative law grounds. The question is whether they have private standing (discussed further below).

Under Canadian law, the Crown has the capacity to enter into contracts under common law. Moreover, statutes confer on many public institutions the power to enter into contracts. Executive bodies are liable in contract at common law, including for damages.

There is no separate public law of contracts; the private law of contract at common law applies to contracts with public entities. However, the process of government contracting – for example, bid and tender processes in public procurement schemes – is often regulated by statute, which must be complied with. While contracts cannot fetter legislative sovereignty, a statute must use specific and unambiguous language to do so.

Government contracts are also subject to constitutional constraints under the Canadian Charter of Rights and Freedoms. Contract terms that restrict Charter rights are subject to constitutional challenge on the same basis as legislation.

Soft law instruments can, in certain circumstances, be judicially reviewed for compliance with enabling legislation in a manner identical to secondary legislation. The question is whether they meet the standard of reasonableness. In addition, a soft law instrument may be struck down for fettering statutory discretion. The threshold question is whether the instrument purports to have binding effect and affects legal rights or has prejudicial effects. Soft law instruments are also subject to constitutional review under the Canadian Charter of Rights and Freedoms, in cases where they have been held to have law-like effects akin to legislation.

In narrow circumstances, the decisions of a private, voluntary association can be subject to judicial review for procedural fairness, where they affect underlying legal rights – for example, contractual or property rights. In addition, courts have treated the constitutions of voluntary associations as creating a web of contractual relations among their members, which are enforceable through an ordinary civil proceeding (as opposed to an application for judicial review). This legal theory has been applied in proceedings brought against political parties, where courts have treated party constitutions as contract terms.

The jurisdiction of the provincial superior courts cannot be completely ousted by legislation, because the existence of those courts is constitutionally guaranteed. However, the question of the constitutionality of partial privative clauses remains unresolved by the Supreme Court. Moreover, the applicability of constitutional limits on privative clauses of any kind to the Federal Court – a statutory court, unlike the provincial superior courts – is a significant and unsettled issue in Canadian administrative law. Federal broadcasting, tariff telecommunications and transportation statutes contain complete or partial privative clauses. These issues are likely to come before the Supreme Court soon.

Claimants have private standing to bring administrative law challenges if they have been directly affected or aggrieved by the decision, that is, if it affects their legal interests or rights, or causes them prejudicial effects. Claimants can be both individuals and corporations.

Under the law of public interest standing, a third party such as an NGO or a corporation can bring challenges to government decisions even if they were not directly affected by the decision. The courts’ power to confer public interest standing is discretionary, and is based on a three-part test.

• Is the matter serious and justiciable?
• Is the party seeking standing genuinely interested in the matter?
• Is there any reasonable and effective way for the matter to be adjudicated?

The overarching goals of this test are to ensure access to justice and legality, while at the same time preventing the crowding out of private litigants and preventing vexatious litigants from bringing unmeritorious lawsuits.

Third parties may seek leave of the court to intervene as amicus curiae. The decision of the court is discretionary. The Supreme Court of Canada considers if the proposed third party: (i) has an interest in the proceeding; and (ii) will make submissions that are both useful and different from the parties’ submissions. These criteria favour expertise and experience.

Interveners may not introduce new issues which the parties have not raised, may not add to the factual record, or take a position on the merits of the appeal. In addition, interveners cannot merely duplicate the arguments of the parties. The courts have taken an increasingly strict approach to enforcing these criteria. It is often advisable to join with other proposed interveners in coalition to avoid any concerns. The most helpful interventions provide a different legal perspective on the issues raised by the parties.

The government’s disclosure obligations depend on the nature of the legal challenge. In applications for judicial review of executive action, in general, the evidentiary record consists of the materials that were before the administrative decision-maker. In some cases, the government may supplement these materials with supporting affidavits from government officials.

In the Federal Court, it is possible for an application for judicial review to proceed as if it were an action, where there is full discovery and a trial. Proceeding in this matter also gives claimants access to both the traditional remedies of judicial review (described below) and damages, which is otherwise not available. This sort of combined proceeding is not possible in Ontario.

In some provincial superior courts (eg, Ontario), claimants who are not seeking judicial review of executive action can challenge the constitutionality of legislation directly, through an action or a proceeding known as an application. For applications, evidence is adduced by affidavits, on which cross-examinations can occur before a proceeding. An application is more efficient than an action and is increasingly used in constitutional challenges to legislation, especially by public interest litigants.

In applications and applications for judicial review, claimants can obtain disclosure of additional evidence not disclosed by government by making demands for production from affiants (if there are any) and requests for undertakings during cross-examinations of affiants. In limited cases, it possible to obtain disclosure through subpoenas for witnesses and documents. Subpoenas are very uncommon in applications for judicial review, which are meant to be a summary legal procedure decided largely based on written materials. There is no Canadian version of the English law “duty of candour”.

In actions, witnesses provide live evidence subject to cross-examination in court. In applications for judicial review and applications, cross-examination of witnesses who have provided affidavits occurs before a court reporter; the transcript is filed in court.

There is no requirement to complete any preliminary steps before issuing a challenge.

Claimants must exhaust all internal administrative appeals before commencing a challenge to an executive decision. Courts will decline to hear judicial reviews unless claimants have done so.

Challenges to executive action must usually be brought within 30 days of the decision being made, in the interests of efficiency. Constitutional challenges to legislation that are not connected to executive action are subject to the general limitation period from the date of the constitutional violation (eg, two years in Ontario).

To initiate a claim, a claimant is not required to adduce evidence. They need only issue an originating process (eg, a notice of application for judicial review) that specifies the relief sought and makes factual and legal assertions in support of that relief.

After the claimant initiates a claim, the government must first disclose the evidence before the decision-maker. The claimant must then file the application record, which may contain supporting affidavits. The government defendant then files any responding affidavit evidence. The parties may then conduct cross-examinations on the affidavits and bring any motions for refusals and undertakings. After the factual record is closed, the claimant files legal submissions, and the government files responding legal submissions.

In all applications for judicial review, there is no requirement for leave, and the matters proceed straight to adjudication. An important exception is immigration and refugee protection matters, where the Federal Court must grant leave to commence a judicial review, based on legal argument and evidence.

It is possible to expedite judicial reviews in urgent situations, which are assessed on the specific facts of the case.

Judicial review addresses both the merits of the decision and the process used to make that decision. For the merits, the standard of review at common law is “reasonableness”, defined as whether the decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker. The focus is on the reasons issued by the decision-maker. A decision is unreasonable if, for example:

• it contains leaps of logic;
• it fails to properly interpret the statutory scheme;
• it is not justified by the factual record;
• it does not address the submissions of the parties;
• it is inconsistent with past administrative practices; and
• considered as such in light of the impact of the decision on the claimant.

Reasonableness usually presupposes there is more than one correct decision, and, as long as a decision is reasonable, courts will defer to it even if they disagree with it.

Courts apply an appellate or “correctness” standard of review and substitute their judgment for those of the decision-maker in a very limited set of circumstances. These include:

• legislated standards of review;
• statutory appeal mechanisms;
• constitutional questions;
• general questions of law of central importance to the legal system as a whole;
• questions related to the jurisdictional boundaries between two or more administrative bodies; and
• concurrent first instance jurisdiction.

Claimants in judicial reviews may also challenge the constitutionality of executive action based on written constitutional instruments:

• the Canadian Charter of Rights and Freedoms;
• the federal division of powers under the Constitution Act, 1867; and
• the aboriginal and treaty rights guaranteed by Section 35 of the Constitution Act, 1982 (described above).

In Canada, Charter rights and aboriginal and treaty rights are not absolute. Charter rights can be justifiably limited by measures that satisfy a proportionality test, which asks whether the limit:

• furthered a pressing and substantial objective;
• was rationally connected to that objective;
• was minimally impairing; and
• had beneficial effects that outweighed its deleterious effects.

Aboriginal and treaty rights can be limited for compelling and substantial objectives and must be consistent with the Crown’s fiduciary duty towards indigenous peoples.

In addition, claimants may challenge executive action based on Charter values, which are distinct from Charter rights. They are defined as the purposes underlying particular Charter rights and may be broader than them in certain circumstances. Moreover, like Charter rights, Charter values give way to government interests that meet a proportionality test. The relationship between review based on Charter rights and Charter values is evolving.

Claimants can also challenge a government decision on the basis that the executive did not follow the relevant procedure for that decision. There are three sources of procedural obligations:

• the common law;
• statutes, regulations, rules and soft law; and
• the constitution.

The common law imposes a duty of procedural fairness for administrative decisions that affect the rights, privileges or interests of an individual. The requirements of the duty of procedural fairness vary by context:

• the nature of the decision and the process followed in making it;
• the nature of the statutory scheme;
• the importance of the decision to the individual affected;
• the legitimate expectations of the claimant; and
• the procedural choices made by the decision-maker.

The core elements of procedural fairness are:

• notice;
• the right to fair hearing; and
• in certain contexts, written reasons for a decision.

However, the exact requirements of procedural fairness vary by context. The standard of review for procedural fairness is correctness.

In addition, administrative decision-makers must allow procedures set out in their enabling legislation, or secondary legislation (rules, regulations) promulgated by Cabinet, the responsible minister or the decision-maker itself. In addition, administrative decision-makers may adopt soft law instruments setting out procedures. Moreover, several provinces (Ontario, Quebec, Alberta, British Columbia) have enacted general procedural statutes that apply to a variety of executive decision-makers. Failure to follow prescribed procedures can lead to the reversal of a decision.

Finally, the constitution imposes obligations of procedural fairness. The Canadian Charter of Rights and Freedoms imposes a duty of procedural fairness for executive decisions that infringe the right to life, liberty and security of the person protected by Section 7. Moreover, Section 35 of the Constitution Act, 1982 imposes a duty to consult Indigenous peoples regarding executive decisions that affect their aboriginal and treaty rights, and to accommodate those interests.

Judicial review accords a high degree of deference to findings of fact by administrative decision-makers, which will not be overturned on judicial review unless there is a palpable and overriding error. However, a decision-maker acts unreasonably if their decision cannot be justified on the factual record before it. In addition, it is arguable that if there is a gap in the evidentiary record on a key issue, a decision-maker is under a duty to make inquiries to obtain the requisite evidence.

It is possible to bring a challenge on the basis that the executive decision-maker abdicated or fettered their discretion. A decision-maker must exercise a discretionary power personally, except in the case of a Cabinet minister, who may exercise it through officials. But they may not subdelegate the decision to another official or allow a non-governmental third party to dictate their decision. The prohibition on sub-delegation, however, leaves a decision-maker free to consult other officials or private parties.

In addition, a decision-maker may not fetter their discretion. The principal context in which this issue has been litigated is the adoption of soft law guidelines that it treats as a binding constraint on the exercise of discretion. Courts have struck down these soft legal guidelines as illegal fetters on executive discretion.

It is possible to bring a challenge on the basis that the decision-maker was biased. But the threshold is a very high one. The question is whether a reasonable person, with the requisite information, would perceive that there is a real likelihood of bias – for example, if the decision-maker has a financial interest in the outcome or a personal relationship with a party. Bias may also be institutional – for example, if a decision-maker has both prosecutorial and adjudicative functions – but if these details are set out in statute, they can only be challenged on constitutional grounds in certain circumstances.

Executive decision-makers must comply with Section 15 of the Canadian Charter of Rights and Freedoms, which prohibits discrimination on enumerated grounds such as race, sex and disability, and analogous grounds such as sexual orientation and marital status.

In addition, under administrative law, municipalities cannot engage in discrimination in their by-laws in a manner which goes beyond the powers authorised by their enabling legislation. The grounds of prohibited discrimination are not found in the Charter, and may include different distinctions among classes of properties, persons or businesses. These challenges may be brought in relation to taxation or land use restrictions. Moreover, municipal discrimination is subject to a reasonableness standard.

Canada has a constitutionally entrenched bill of rights, the Canadian Charter of Rights and Freedoms. (See 3.1 Challenging Primary Legislation.) These rights are not absolute. Governments may infringe them if those limits are demonstrably justifiable, based on a proportionality test. In addition, governments may shield legislation from constitutional challenge under most Charter rights under the notwithstanding clause.

Proportionality is not an independent head of judicial review. However, limitations on rights enshrined by the Canadian Charter of Rights and Freedoms are only justifiable if they meet a proportionality test. Moreover, executive decisions that contravene Charter values also must achieve a proportionate balancing of those values and the government’s interests. In the context of Charter values, reasonableness and proportionality are synonymous.

Executive decisions can also be challenged under tort, under the law of negligence, but modified for public authorities. There is a two-step test: first, whether the relationship between the plaintiff and the public authority gives rise to a prima facie duty of care; and, second, whether there are policy reasons why the prima facie duty of care should not be recognised. While policy decisions are immune from tort liability unless they are irrational, operational decisions are not.

Certain exercises of the prerogative power are non-justiciable and beyond the scope of judicial review because they concern matters of high policy. These include, for example, the acquisition and exercise of sovereignty (eg, executive decisions to enter into aboriginal treaties, the assertion of Crown sovereignty over Canadian territory) and foreign affairs (eg, the making of treaties). However, Canadian public law lacks a political questions doctrine, and instead addresses those concerns through deference as opposed to non-reviewability. Moreover, this is an evolving area of law, with the courts being invited to expand the boundaries of justiciability. In recent decisions, appeal courts have asserted jurisdiction over climate change policy, and have been invited to assert jurisdiction over the Prime Minister’s advice to the Governor General to prorogue Parliament (like the UK Supreme Court did in Miller II).

In applications for judicial review, executive defendants disclose their grounds of defence in their responding legal submissions. However, the grounds of defence will usually be apparent in any responding affidavits.

Canadian courts can order interlocutory relief in applications for judicial review. This relief can take the form of mandatory and prohibitive injunctions, such as stays. The moving party must establish that there is a serious issue to be tried in its underlying proceeding. In addition, the moving party must show that it will suffer irreparable harm if the interlocutory injunction is not granted. Third, the moving party must establish that the balance of convenience favours the granting of interlocutory relief, which requires a balancing of which party would suffer greater harm from the granting or refusal of the interlocutory remedy.

It is not possible to be awarded damages in an application for judicial review for decisions that are illegal under administrative law. However, damages are available for violations of rights under the Canadian Charter of Rights and Freedoms by the executive but must be sought by way of action or application. The awarding of Charter damages is discretionary and, to date, is relatively rare. The question is whether the awarding of damages furthers the goals of compensation, vindication and deterrence. The Federal Court has allowed litigants to combine applications for judicial review and actions into a single proceeding, to allow individuals to obtain both administrative law remedies and damages. A growing area of jurisprudence, however, is the awarding of Charter damages in class actions.

Under Section 52 of the Constitution Act, 1982, unconstitutional legislation has no force or effect. Canadian courts have relied on Section 52 to issue declarations of invalidity with immediate and fully retroactive effect. However, courts have asserted the power to issue other remedies under Section 52 in relation to legislation. For example, courts may read down or interpret legislation to limit its applicability to remain within constitutional bounds; and read-in or sever language to render legislation constitutionally compliant. In addition, courts often suspend declarations of invalidity in circumstances where creating a legal vacuum would undermine the rule of law or threaten public safety and keep unconstitutional legislation temporarily in place to allow the legislature to enact new legislation that is constitutional. Governments have sometimes sought extensions of suspended declarations of invalidity, and courts have imposed conditions on government to grant those extensions – for example, ad hoc administrative mechanisms to provide temporary relief for claimants. In addition, courts have sometimes overruled legislation prospectively, in cases where decisions mark a significant change in governments’ constitutional obligations.

In Applications for Judicial Review, courts can issue mandamus – ie, an order requiring the government to take positive action. Such orders require the executive to perform legal duties under statute or common law. In addition, in constitutional cases under the Canadian Charter of Rights and Freedoms, courts have a broad remedial power under Section 24(1) to issue “appropriate and just” relief. Courts have exercised this power on rare occasions to issue structural injunctions, for example, to enforce the Charter’s guarantee of publicly funded primary and secondary education for linguistic minorities. This is also an evolving area of law.

If courts find a decision to be unlawful, governments may appeal the decision to a higher court. If not, they must take steps to comply with the court’s ruling forthwith, and, in Canada, always do. In the rare circumstance where they do not, claimants can return to court to bring contempt proceedings, to ensure enforcement.

In Canada, the basic legal principle for costs is “loser pays”. This means that unsuccessful claimants may be required to pay the government’s costs. If costs are ordered, they must usually be paid on a partial indemnity or party-party basis, representing 60% or two thirds of costs. A mitigating factor is that the hourly rates of in-house government counsel, in general, are lower than those of private counsel. But claimants are well advised to keep in mind the risk of an adverse costs award in pursuing litigation.

In public interest cases, courts retain the discretion to relieve unsuccessful public interest litigants from paying costs. Courts consider the following questions.

• Does the proceeding involve issues the importance of which extend beyond the immediate interests of the parties concerned?
• Does the unsuccessful claimant have a personal, property or pecuniary interest in the outcome of the proceeding, or, if they have an interest, does that interest clearly not justify the proceeding economically?
• Have the issues been previously determined by a court in a proceeding against the same defendant?
• Does the defendant have a clearly superior capacity to bear the costs of the proceeding?
• Has the plaintiff engaged in vexatious, frivolous or abusive conduct?

Courts retain the power to order costs against legal representatives directly, when their conduct has caused costs to be incurred improperly, without reasonable cause or costs are wasted by undue delay, negligence, misconduct or other default. They also possess the power, on the same basis, to disallow costs between counsel and their client.

Unsuccessful claimants may appeal first instance decisions to a higher court.

Canada has a system of 13 provincial and territorial courts, each with a provincial court of appeal to which appeals can be made. In the federal court system, decisions of the Federal Court can be appealed to the Federal Court of Appeal. The highest court of appeal is the Supreme Court of Canada.

The presumptive rule is that unsuccessful litigants have a right of appeal from courts of first instance to courts of appeal. However, there are important exceptions. Appeals from the country’s most active administrative law court – the Ontario Divisional Court (a division of the Superior Court of Ontario) – require leave to appeal from the Ontario Court of Appeal. In immigration and refugee matters, appeals to the Federal Court require the Federal Court to certify that the case raises a serious question of general importance.

The Supreme Court of Canada’s appellate jurisdiction includes appeals of right only in certain criminal cases. In all other cases, the Court must grant leave to appeal. The test is whether a case raises a question of national importance. The Court is not a court of error correction and will not take appeals simply because the decision of the court of appeal might be incorrect. The Court only grants leave to appeal in approximately 7% of cases.

The appeal is a rehearing of the matter, but subject to the appellate standard. On questions of law, the appellate standard is correctness and appeal courts put themselves in the shoes of the first instance court. On questions of law or mixed questions of law and fact, the appellate standard is palpable and overriding error.