Articles 2025

Before advising clients to commence a judicial review of an administrative decision, it is important to verify that all administrative processes have been exhausted. This principle comes from an administrative law rule known by multiple names, including the doctrine of exhaustion, the rule against interlocutory judicial reviews, and the objection against premature judicial reviews (hereinafter referred to as the “Doctrine of Exhaustion”).

In Ontario (Premier) v. Canada (Commissioner of the Public Order Emergency Commission) the Federal Court provides a useful analysis of the application and scope of parliamentary privilege, in particular with respect to testimonial immunity.

Ms. Patchett appealed the decision made by the License Appeal Tribunal (“LAT”), finding that the appellant was not catastrophically impaired pursuant to sec. 3.1 (1) 2 iii of the STATUTORY ACCIDENTS BENEFITS SCHEDULE O reg 34/10 (“SABS”). This was the first time that sec. 3.1(1)2 iii of the Sabs was considered by LAT. The Appeal concerned the interpretation and application of s. 3.1(1) 2 iii of SABS, specifically the meaning of “permanent and serious.”

A recent appeal from a judgment of the Small Claims Court raised an interesting question as to how fence disputes are to be resolved in the City of Toronto, although it left the answer to this question to be determined at a later date.

In November 2021, the Supreme Court of Canada released its decision in Northern Regional Health Authority v. Horrocks. The decision upholds the status quo established in Agraira v. Canada (Public Safety and Emergency Preparedness) (an earlier Supreme Court decision) regarding the applicable appellate standard of review when the first instance court is tasked with determining the applicable standard of review.

In this year’s Annual Update on Judicial Review, held on October 18, 2021, the Honourable Justice David Stratas, Federal Court of Appeal, and Professor Paul Daly, University of Ottawa, discussed recent cases and developments in the administrative law jurisprudence across Canada. The event was chaired by Dina Awad and Jillian Siskind of the OBA Administrative Law Section Executive. This summary of the lively discussion is categorized into six themes, following the structure and flow of the event.

In this case, decided by the Supreme Court on May 21, 2021, the Supreme Court of Canada confirmed that a legal right is required for a court to intervene in a decision of a voluntary association, and found that whether such a legal right exists must be determined on a case-by-case basis.

In The Minister of Citizenship and Immigration v. the Canadian Council for Refugees, 2021 FCA 72, the Federal Court of Appeal overturned the decision of the Federal Court (2020 FC 770), which had found that section 101(1)(e) of the Immigration Refugee Protection Act, S.C. 2001, c.27 (the “Act”) and section 159.3 of the Regulations under the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the “Regulations”), infringed section 7 of the Charter.

A recent decision from the Ontario Court of Appeal upheld the Divisional Court in its finding that a decision of the Pay Equity Tribunal, which found that continued the use of the proxy method to measure pay equity in the nursing home sector was not necessary, was not reasonable. However, a strong dissent signed by two of the Justice suggests this may not be the last word on the matter.