Expanded Remedies in Judicial Review

Judicial review has traditionally been narrower than an appeal. This is so particularly when it comes to the remedies that can be granted by the court. Generally when an order is made by a court on judicial review quashing a tribunal decision, the court sends the matter back for a new decision. However, recently courts have indicated that where “a particular outcome is inevitable and… remitting the case would therefore serve no useful purpose” a court can exercise broader remedies.

An example of this newer approach is found in Gogek v Real Estate Council of Ontario, 2020 ONSC 486, http://canlii.ca/t/j4wt6. In that case an internal appeal tribunal for the regulator refused to extend the time for initiating an appeal. However, the chairperson of the appeal panel making that decision had presided over the pre-hearing conference in the matter. It is generally accepted that, in order to promote candid resolution discussions, a person presiding over a pre-hearing conference will not later hear the case. The regulator acknowledged the error and not only agreed that the decision refusing the extension of time should be set aside, but that an extension of time was reasonable in the circumstances. The Court directly ordered that permission to initiate the appeal late be granted rather than sending the matter back to the appeal tribunal to make that order.

More Posts

Ungovernability and Probable Harm

While the language for regulatory interim order provisions vary, most relate in some way to the risk of harm. But how does the non-cooperation of

Leaked Tribunal Documents

What can a tribunal do when one of its former members discloses to outsiders confidential information about its internal processes? The Court in Derenzis v

Enforcement Obligations and Discretion

Can a third party compel a regulator to take enforcement action against those it regulates? In Resource Productivity and Recovery Authority v Environmental 360 Solutions