The Discretionary Nature of Judicial Review

The modern Canadian law of judicial review of administrative action finds its origins in the historic English prerogative writs system, through which the royal courts supervised the exercise of executive and administrative, as well as judicial power conferred on “inferior” courts and tribunals. Indeed, until comparatively recently, the principles of judicial review of administrative action depended very directly on the technical, often arcane, and sometimes perverse rules governing the issuance of the prerogative writs. Fortunately, as a result of modernization efforts throughout Canada over the last forty years, the malignant influence of the finicky requirements of the law governing the issuance of the prerogative writs has disappeared almost entirely from the processing of judicial review applications of all kinds. However, there is one critical aspect of the public law remedial scheme where the general principles have not in fact changed significantly from the era of the prerogative writs (supplemented eventually by forms of equitable relief such as the injunction and declarations of right). Even when applicants met the conditions for the availability of the various prerogative writs, the courts recognized an overriding discretion to refuse relief on various grounds. That dimension of the writ system of judicial review is captured well in summary form in the latest edition of De Smith’s Judicial Review:The award of the prerogative writs usually lay within the discretion of the court. The court was entitled to refuse certiorari and mandamus to applicants if they had been guilty of unreasonable delay or misconduct or if an adequate alternative remedy existed, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty.They were not writs that issued “as of course” or “ex debito justitiae,” but rather writs “of grace.” While the authors go on to note that the writs of prohibition and habeas corpus were different and not regarded as discretionary, it was also the case that the various maxims of equity imposed a similar discretionary element on the use of the injunction and the declaration for public law purposes. We need not look further back than March 2009 to locate a present-day equivalent of the statement from De Smith. Rothstein J., in Canada (Citizenship and Immigration) v. Khosa, captures current Canadian law on the discretionary nature of judicial review well in stating:The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies: Immeubles Port Louis Ltee v. Lafontaine (Village)[3]. As Harelkin[4] affirmed, at p. 575, courts may exercise their discretion to refuse relief to applicants “if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty.” As in the case of interlocutory injunctions, courts exercising discretion to grant relief on judicial review will take into account the public interest, any disproportionate impact on the parties and the interests of third parties. This is [a] type of “balance of convenience” analysis.This is not meant to suggest that the law respecting the discretionary nature of judicial review has remained constant over the years. It has not. As this paper will demonstrate, there has been considerable evolution. Part of this evolution, and consistent with the Canadian courts’ expressed policy of deference to the expertise and exigencies of administrative processes, is a much more consistent concern with whether granting relief will interfere with the effective functioning of the administrative process, fail to sufficiently recognize the capacity of statutory authorities to themselves deal with the matters in issue, and involve an inappropriate use of the courts’ own processes. At the same time, there has been a movement away from the idea that discretion to refuse to hear the matter or grant relief is not a factor where the matters in issue are jurisdictional. It is, however, the case that, in the continued evolution of a more functional approach, the courts’ “discretion” has hardened in some contexts into what are often quite firm rules governing the exercise of that remedial discretion.It is also probably the case that, in some instances, matters that were formerly components of front-end issues relating to the technical requirements of the prerogative writs have now been subsumed within the discretionary elements of modern judicial review remedial law. I do not want to explore the precise parameters of that transference save to make the point later in this paper that the difference in approach between Rothstein J. and Binnie J. in Khosa provides an illustration of the extent to which the discretionary character of judicial review has become a repository for matters that were previously substantive remedial issues.In this paper, I have two principal objectives. The first is to provide a primer on some of the various considerations that go into the decision of whether to withhold access to judicial review, with particular emphasis on the most common situations where those discretionary factors come into play or where the law is in a state of flux. Secondly, in the course of describing the current state of the law, I want to explore why there is a differentiation between situations in which discretion is routinely exercised to deny relief and situations where discretion is rarely exercised, and to try to fathom whether that operational distinction is logical and sound in principle.

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