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JUDICIAL REVIEW IN CANADA: PROCESS, DEADLINES, AND REMEDIES EXPLAINED

Immigration law

18 Apr

The standard of review is how closely the court looks at the decision being examined. There are usually two types of review: reasonableness and correctness. If the case involves fairness in the process, no review analysis is needed.

If you believe an administrative tribunal made the wrong decision about your case, you can request the Federal Court of Canada to review immigration decisions, but there are deadlines for submitting your review application. You may be able to apply for judicial review.

First of all, let’s understand what Judicial Review is: 

A judicial review reassesses a decision or ruling made by an administrative authority. This process ensures that the administrative authority has acted fairly, reasonably, and lawfully. If the review reveals that the administrative authority was unjust, unreasonable, or unlawful, a higher court may overturn the decision or ruling of a lower court or tribunal.

You should keep in mind that A judicial review can be complex, costly, and time-consuming, so many legal professionals will highly advise seeking the assistance of a lawyer if you choose to pursue one. 

The applicant must prepare and submit an Application Record. This record usually includes the following documents:

  • A table of contents

  • A copy of the Notice of Application

  • A copy of the Court or tribunal's reasons for the decision being reviewed, with an additional typed or printed copy if the reasons are handwritten

  • A copy of all affidavits and other documents served by any party that were part of the original decision

  • A list of all relevant transcripts of evidence

  • A copy of any other material in the Court file needed for the hearing of the application

RRM Law can assist by providing expert legal advice and representation throughout the judicial review process. We can help you understand the complexities of the law, guide you through the steps involved, and ensure that your case is presented effectively. 

Now, filing for judicial review does not stop the original decision from being valid or in effect. If you want the court to pause the decision until it reviews your application, you must ask the court for a "stay" of the decision. To do this in the Divisional Court, you need to file a motion asking for an order to delay the original decision until the court makes its final decision.

The distinction between a judicial review and an appeal lies in whose decision is being examined. Judicial reviews generally involve the decisions made by administrative tribunals, whereas appeals focus on the rulings of a court. Administrative tribunals are typically less formal bodies of legal professionals when compared to the formal courts within Canada's judicial system.

How do you seek a judicial review after receiving the decision in your case?

You can certainly ask the Federal Court of Canada to review immigration decisions. However, there are deadlines to apply for a review. You are required to submit a Notice of Application to the Federal Court, requesting leave (an oral hearing) and judicial review, within 15 days of receiving the written decision. Following this, you have an additional 30 days to "perfect" your application, which involves filing an Application Record along with the necessary supporting documents and legal arguments.

The next question that you might have - What kind of solutions (prerogative remedies) can a court provide after a judicial review?

If your judicial review application is successful, the court can offer five types of solutions, known as prerogative remedies:

  • Certiorari: An order that cancels the decision being reviewed, making it invalid. If the court finds that the decision cannot stand (for example, due to lack of authority or unfair procedures), it can cancel the decision and may send the case back to the decision-maker or, in rare cases, make its own decision.

  • Habeas corpus: A legal order that requires a detained person to be brought before a judge to determine if the detention is legal. This is often used in immigration cases but can also apply to criminal detentions.

  • Mandamus: An order that forces a person or body to take an action. If the court finds that a decision-maker has a legal duty to do something but has failed to do it, the court can order them to complete that duty.

  • Prohibition: An order stopping a decision-maker from continuing an unlawful action or process. If the court finds that the decision-maker has no right to act in a certain way, it can prevent them from doing so.

  • Quo warranto: A remedy used to challenge someone's right to hold a public office. It requires the person to prove they have the legal authority to make decisions in that role.

At the hearing, both parties will have the chance to present their case before a three-judge panel of the Divisional Court. The panel will have already reviewed the materials filed and will be familiar with the issues. The oral hearing allows each party to explain their position on the main issues in the case.

Our legal team at RRM Law can also assess the strength of your case, help with documentation, and represent you in court if necessary, all while aiming to minimize costs and time. We can ensure that your rights are protected and that you have the best chance of a successful outcome.

Find out how we can help you and learn more about your legal rights.

Call (905) 798-3776