Wednesday, April 18, 2018

Judicial Review:Some Insightful Quotes

[10]   An application for judicial review is not the same thing as an appeal.  Without getting too technical, it is sufficient to say that judicial review is a public law remedy by which the courts will oversee government decision-making even where the law does not provide an appeal to the unsuccessful party.  The common law and, now the Judicial Review Procedure Act provide for courts to become involved in processes of government in limited circumstances to ensure that certain fundamental rules of justice are maintained and to protect members of the public against government action that is inconsistent with established norms.

Zirger  v.  The Normal Farm Practices and Protection Board 2018 ONSC 2236 (Divisional Court)

"The very qualities which make the Agency well suited to determine questions within its area of specialization may lead it to overlook or underestimate general values which are fundamental to the legal order as a whole.  The generalist Court is ideally suited to check the specialist Agency at the point where these general values are threatened."

Peter W. Hogg - Judicial Review in Canada: How Much Do We Need It ?

"Where a tribunal fails to dispose of a matter before it in a manner permitted by the enabling legislation it is not functus officio.  When the said tribunal files a record of proceedings before a reviewing court which is incomplete for whatever reason neither the tribunal who fails to properly dispose of the matter or the reviewing court can be said to be functus officio - particularly in light of Rule 59 of the Rules of Civil Procedure.  Parties can not consent to make that which is relevant to the restoration of public confidence in the judicial removal process disappear."

E.J. Guiste - Applicant's Factum in Massiah v. JPRC et al at para 67

"Based on the record before it this Honourable Court found the subject tribunal's liability and penalty decisions to be reasonable."

"Judicial review is based on a tribunal's record of proceedings."

"The focus of this court's inquiry ought to be on the impact of the JPRC deficient record of proceedings on this court's order; the impact of Presenting Counsel's representation on the identify of the complainant on the fairness of the hearing; the impact of appellate counsel's failure to raise a litany of issues calling for a correctness standard of review; and lastly the overriding impact of the unconstitutionality of the challenged segments of the enabling legislation and the Procedures Document."

"Once approached from this point of view, the reality that this court's order of October 4th, 2016 must be set aside is inescapable since justice must be seen to be done. The appearance of bias and unfairness is just as important s the reality."

E.J. Guiste - Excerpts from Reply Factum in Massiah v. JPRC et al 

NOTE:  This piece is published here to draw attention to issues of public importance.  Judicial review is is not an appeal.  Judicial review is not a trial.  Judicial review is a unique procedure designed to provide the public with a forum and remedy for ensuring that government acts within the law.

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