Judicial Review

Steps

Courts

Statutes

Caselaw

Law relating to Case
Fairness Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817
Filing a motion for an extension of time Stanfield v Canada, 2005 FCA 107
Mootness Borowski v Canada (Attorney General), [1989] 1 SCR 342
Standard of review of administrative decision-makers Dunsmuir v New-Brunswick, [2008] 1 SCR 190

Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708

Smith v Alliance Pipeline Ltd., [2011] 1 SCR 160

Social Justice Tribunals

Social Justice Tribunals Ontario

Social Justice Tribunals Ontario (SJTO) is a group of eight adjudicative tribunals that play an important role in the administration of justice in Ontario. The tribunals of the SJTO are:

SJTO tribunals

Tribunal Description
Child and Family Services Review Board (CFSRB) The CFSRB conducts reviews and hearings on a number of matters that affect children, youth and families in Ontario. The CFSRB operates under the jurisdiction of the Child, Youth and Family Services Act, 2017Education Act and Intercountry Adoption Act.
Criminal Injuries Compensation Board (CICB)

The CICB assesses financial compensation for victims and family members of deceased victims of violent crimes committed in Ontario. The CICB is an adjudicative tribunal created under the Compensation for Victims of Crime Act.

Custody Review Board (CRB) If you are a young person who was charged with an offence that occurred when you were under 18, you may be able to apply to the CRB for a review of:

  • your placement
  • your transfer from a place of open custody to a place of secure custody
  • the decision by the Provincial Director to deny your request for a temporary release or reintegration leave from a custody facility.
Human Rights Tribunal of Ontario (HRTO)

The HRTO resolves claims of discrimination and harassment brought under the Human Rights Code in a fair, just and timely way. The HRTO first offers parties the opportunity to settle the dispute through mediation. If the parties do not agree to mediation, or mediation does not resolve the application, the HRTO holds a hearing.

Landlord and Tenant Board (LTB)

The LTB operates under the Residential Tenancies Act to process eviction applications and resolve disputes between landlords and tenants.

Ontario Special Education (English) Tribunal (OSET)

The two OSETs hear appeals by parents and guardians who are not satisfied with the school board’s identification or placement of a child with exceptional learning needs.

The OSET-English hears appeals from decisions made by English Public and Catholic School Boards.

The OSETs hear appeals only after parents have completed all possible appeals at the school board level under the Education Act.

Ontario Special Education (French) Tribunal (OSET)

The OSET-French hears appeals from decisions made by French Public and Catholic School Boards.

Social Benefits Tribunal (SBT)

The SBT hears appeals from people who have either been refused social assistance or who receive social assistance but disagree with a decision that affects:

  • their eligibility for assistance
  • the amount of assistance they receive
  • the benefits they receive

The SBT is established under Part IV of the Ontario Works Act, 1997. Appeals are heard under that act and the Ontario Disability Support Program Act, 1997.

Canadian Human Rights Tribunal

The Canadian Human Rights Tribunal (CHRT) has a statutory mandate to apply the Canadian Human Rights Act (CHRA) based on the evidence presented and on the case law.

Created by Parliament in 1977, the Tribunal legally decides whether a person or organization has engaged in a discriminatory practice under the Act. The purpose of CHRA is to protect individuals from discrimination. It states that all Canadians have the right to equality, equal opportunity, fair treatment and an environment free of discrimination.

The CHRT applies these principles to cases that are referred to it by the Canadian Human Rights Commission (CHRC). The Tribunal is similar to a court of law, but is less formal and only hears cases relating to discrimination.

Charter Claim

Steps

Steps in a Charter claim

Step Description
Does the Charter apply?

Standing: Does the claimant have “standing” or “public interest standing” to bring a Charter claim? S. 32 of the Charter says the Charter only applies to actions of federal or provincial governments, or entities they significantly control, toward individuals in Canada. See Stoffman v Vancouver General Hospital, [1990] 3 SCR 483.

Jurisdiction: Canadian laws generally don’t apply outside Canada unless

  • another state consents to their application on its territory or
  • there is an exception under international law. See R v Hape, [2007] 2 SCR 292 and Canada (Justice) v Khadr, [2008] 2 SCR 125
Was there a breach of the Charter?

A claimant must plead all the elements of the alleged Charter breach and the remedy sought. The LSO’s Charter Claims article explains the elements for breach of each section of the Charter.

Charter analysis can only be made on a full evidentiary record. E.g., in British Columbia (Attorney General) v Christie, [2007] 1 SCR 873 at paras. 14 and 28, there was no evidence to demonstrate that the 7% provincial tax would adversely affect access to justice.

What is the appropriate forum for Charter litigation?

The Supreme Court determined that in order for the Charter to be meaningful, claimants are “entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available.” Therefore, administrative tribunals may have jurisdiction to apply the Charter. See Nova Scotia (Workers’ Compensation Board) v Martin, [2003] 2 SCR 504 at para. 29.

There is a two-part test to determine if an administrative tribunal can apply the Charter:

  • Can the administrative tribunal determine questions of law?
  • Can the administrative tribunal order the remedy sought?

See R v Conway, [2010] 1 SCR 765 at paras. 81-82.

The purpose is to “[secure] for individuals the full benefit of the Charter protection.” See R v Big M Drug Mart Ltd., [1985] 1 SCR 295 at para. 117.

If there was a breach of the Charter, is it justified under s. 1?

If there was a breach of the Charter, the court uses the Oakes test to determine if it is justified under s. 1:

  • Pressing and substantial objective: There must a pressing and substantial objective for the law or government action.
  • Proportional means: The means chosen to achieve the objective must be proportional to the burden on the rights of the claimant.
  • Rational connection: The objective must be rationally connected to the limit on the Charter right.
  • Minimal impairment: The limit must minimally impair the Charter right.
  • Proportional cost and benefit: There should be an overall balance or proportionality between the benefits of the limit and its deleterious effects.
Remedies

1. Striking down: A court may declare that a law that infringes the Charter is nullified and is of no force of effect.

2. Partial invalidity: A common alternative to striking down an entire law is to declare only the unconstitutional portion(s) of the law invalid. This technique has often been used where a provision in the Criminal Code has been found to be unconstitutional. The specific provision will be declared invalid rather than striking down the entire Criminal Code. If the court has ordered the law, in whole or in part, to be struck down, Parliament or a provincial legislature may choose to redraft that law so that it complies with the Charter.

3. Reading down: Reading down is where the court interprets the legislation in a sufficiently narrow way to bring it in line with the Charter. For example, in R v Butler, [1992] 1 SCR 452, the Supreme Court read down the extremely broad terms of the obscenity laws in the Criminal Code in order to avoid an infringement of freedom of expression. The court held that the provision should be interpreted narrowly to catch only certain forms of pornography.

4. Reading in: This technique is used when a statute is under-inclusive and fails to extend to those who have a legitimate constitutional claim to its protection. In such cases, the court may “read in” those categories of individuals rather than strike down the law entirely. This approach was taken in Vriend v Alberta, [1998] 1 SCR 493 when sexual orientation was read in to the human rights legislation in Alberta. Reading in is a controversial remedy as the court appears to be taking on a legislative role and adding to the legislation itself. However, it is often a more suitable alternative to striking down the legislation as a whole.

5. Constitutional exemption: A court may order that a particular law is valid but a certain individual is exempt from its application. This remedy is rarely applied and used only in exceptional circumstances.

6. Temporary suspension of invalidity: A court may declare that a statute, or a provision within it, is invalid but allow the law to remain in force for a set period of time in order to allow Parliament or the legislature to change the law and bring it into compliance with the Charter.

Notwithstanding/override clause (s. 33): In response to one of these orders, the government may invoke s. 33 of the Charterthe notwithstanding clause–which would exempt the government from following the court’s directions. However, s. 33 only applies to ss. 2 and 7-15 of the Charter and history has shown that the use of s. 33 is quite rare.

Resources

Constitutional Laws

The Constitution isn’t a single document, but a bunch of documents that are the highest level of Canadian law:

Document  Content
Constitution Act, 1867 aka the British North America Act before the Constitution Act, 1982 Outlines Canada’s system of government, including

  • the structure of Parliament,
  • how elections work,
  • the role of the monarchy and
  • the division of powers between the federal government and the provinces.
Constitution Act, 1982 aka the Canada Act
Other laws Other constitutional laws regulate ‘constitutional’ matters, such as fundamental institutions of the Canadian government. Examples are laws that regulate:

  • the Governor General
  • the Supreme Court of Canada
  • the provincial parliaments
  • treaties with aboriginal peoples

Caselaw

Constitutional References

A reference is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue, usually the constitutionality of legislation.

Constitutional Conventions

The preamble to the Constitution Act, 1867 says it aims to be “similar in principle to [the Constitution] of the United Kingdom.”

The Constitution of the UK operates more on tradition than explicit rules. This was also intended to be the case with Canada. Most rules that govern the Canadian parliamentary system still aren’t written down. They’re constitutional conventions that have arisen from centuries of British and, since 1867, Canadian tradition.

There’s a lot of debate over what is or isn’t a “convention,” especially when an unusual situation arises that doesn’t have a precedent. Media and politicians will often solicit professors of political science to interpret a tricky situation when the Constitution isn’t much help. The Supreme Court often refers to Peter Hogg.

References:

Peter Hogg, Constitutional Law of Canada, 5th ed (ON: Thomson Carswell, 2007).