Friday, January 1, 2016

Court of Appeal for Ontario Comments on Tribunal's Resisting Judicial Review of their Decision

[61]  Finally, I think it important that if an administrative tribunal seeks to make submissions on a judicial review of its decision, it pay careful attention to the tone with which it does so.  Although this is not a discrete basis upon which its standing might be limited, there is no doubt that the tone of the proposed submissions provides the background for the determination of that issue.  A tribunal that seeks to resist a judicial review application will be of assistance to the court to the degree its submissions are characterized by the helpful elucidation of the issues, informed by its specialized position, rather than by the aggressive partisanship of an adversary.

Goudge J. A. in Ontario (Children's Lawyer)  v.  Ontario(Information and Privacy Commissioner) 75 O.R. (3d) 309 [2005] O.J. No. 1426 (ONCA)

Commentary and Analysis:

   The impact of the message contained in the above-noted quote takes on a much more significant and profound meaning once one appreciates the litigation background of the author.  Prior to being appointed to the Court of Appeal in 1996 Mr. Goudge was among the best administrative law lawyers in Ontario and arguably Canada.  As a student-at-law at the Ontario Labour Relations Board I personally had the opportunity to see one of his factums when he acted for the OLRB on a judicial review application in the Divisional Court.  The factum was concise and non-judgmental of counsel or the parties. In the final analysis it is the tribunal's decisions on the substance of the case which is being challenged. The tribunal either acted within jurisdiction or it did not.  The tribunal either breached the rules of natural justice and fairness or it did not.  The tribunal either correctly applied established legal principles and binding legal authorities or it did not.  Lastly, the tribunal either exercised discretion judiciously and in accordance with law and established legal principles or it did not.   

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