By Erin Moores
What do we mean by “judicial review of administrative action”, five utterly unremarkable words that seem to convey less meaning when combined than they do apart? It is worth knowing, because this type of legal proceeding has an important impact on many peoples’ lives and could someday on yours, too.
It would be difficult to underestimate the number of administrative decisions (the “administrative action” part) made about individuals, organizations, and businesses in Canada on any given day. These are decisions made about us by public bodies to whom a government has delegated these powers. You received your birth certificate, passport and SIN because of administrative decisions. Same for that construction permit your business acquired. And same goes for that Pfizer COVID-19 vaccine approval – that is administrative action by Health Canada. There is no doubt that administrative decisions affect us at many times throughout our lives, across a great many aspects of our lives, and sometimes, have enormous consequences.
But what about the other “judicial review” part? In a relatively recent example, judicial review had a moment in the public consciousness due to the sensational story that led to the Supreme Court of Canada’s Vavilov decision in December 2019. Alexander Vavilov was a teenager when he found out his parents were Russian spies (they were later to become the true-crime inspiration for the FX series The Americans). Because Mr. Vavilov’s parents were spies at the time he was born in Canada, the Registrar of Canadian Citizenship interpreted a section of the Citizenship Act as allowing her to revoke Mr. Vavilov’s certificate of Canadian citizenship. Mr. Vavilov had this administrative decision judicially reviewed all the way up to the Supreme Court. Thankfully for Mr. Vavilov, the Court ultimately ruled in his favour and he remains a Canadian citizen today.
This “judicial review” part comes when you disagree with an administrative decision made about you, as Alexander Vavilov did. This is different in law than an appeal and in fact, most administrative actions cannot be appealed at all. In most judicial reviews a judge can only decide whether the decision being reviewed was reasonable or not. It is notoriously difficult to prove that a decision was “unreasonable”, because there is almost never just one possible “reasonable” outcome – there’s instead a range of reasonable outcomes. As long as the administrative decision falls into that range, the reviewing judge must defer to the administrative decision maker’s choice and may not alter the outcome.
Contrast this with an appeal, in which a court or tribunal has the power to disagree with many aspects of the decision being appealed and substitute what it believes to be the most correct decision possible. Even if the court were to think the decision being appealed was generally reasonable, it has the power to improve or correct that decision as it sees fit. The appealing party then has more bases upon which to try to get the appeal court to change or adjust the lower court’s initial decision, and possibly more chance of success. For the non-legally-trained, the distinction between appeal and judicial review may seem subtle, but in legal terms, these two are very different mechanisms.
But why does judicial review exist? Why not allow every decision to be appealed?
As the thinking goes, administrative decision makers should have discretion to make these many choices based on their mandate and expertise, aiming for the reasonable range rather than trying to predict what a judge might think is the perfectly “correct” outcome. Narrowing and limiting the role of the courts in reviewing those decisions is said to preserve the efficiency and legitimacy of the administrative decision maker, providing a way to contest their decisions while also showing deference to government’s choices about how administrative decisions should be made.
We advise and represent many clients each year on judicial review matters. Don’t hesitate to contact us for further information about our services.