Judicial Review | Toronto Lawyer

Federal Court deadlines are short. An Application for Leave and Judicial Review must generally be filed within:

• 15 days for a matter arising in Canada; or
• 60 days for a matter arising outside Canada.

The deadline is calculated from when the applicant was notified of, or became aware of, the decision being challenged. If the deadline has already passed, an extension of time may be required. Extensions are discretionary and should not be assumed.

The Federal Court process usually involves two stages.

Application for Leave and Judicial Review

The first step is filing the Application for Leave and Judicial Review. This preserves the applicant’s right to ask the Court to review the decision, provided it is filed within the applicable deadline.

Applicant’s Record

The Applicant’s Record contains the written legal arguments, supporting affidavit evidence, relevant documents, and materials required for the Court to assess whether leave should be granted.

Leave Decision

The Court reviews the written materials and decides whether the case should proceed to a hearing. If leave is refused, the matter ends.

Hearing

If leave is granted, the matter proceeds to an oral hearing before a Federal Court judge. The Court may dismiss the application or allow the judicial review and send the matter back for re-determination.

Settlement

Some matters may resolve before a leave decision or before a hearing if the Department of Justice agrees to settle and return the matter for re-determination.

Legal representation for judicial review may include deadline review, strategy assessment, preparation of Federal Court materials, written legal arguments, Department of Justice communications, and oral hearing preparation where leave is granted.

Eligibility and Strategy

• review of the decision, reasons, and date of communication;
• calculation of the Federal Court filing deadline;
• assessment of whether judicial review is the correct remedy;
• review of available appeal rights or alternative remedies;
• assessment of whether the decision may be unreasonable or procedurally unfair;
• review of the record before the decision-maker;
• identification of legal, factual, evidentiary, or procedural fairness issues; and
• strategy regarding settlement, reapplication, reconsideration, or other next steps.

Federal Court Application

• preparation of the Application for Leave and Judicial Review;
• preparation of supporting affidavit evidence and exhibits;
• review of the immigration application materials and officer reasons;
• preparation of the Applicant’s Record;
• drafting written legal arguments;
• communication with the Department of Justice;
• preparation of a settlement request where appropriate; and
• preparation for the oral hearing if leave is granted.

Record Review and Legal Arguments

Judicial review arguments must be based on the decision, the reasons, the evidence before the decision-maker, and the applicable law. Legal submissions may address whether the decision was reasonable, whether the reasons were justified, whether the evidence was meaningfully considered, and whether the applicant received procedural fairness.

Complex Situations

Legal representation may be especially useful where the refusal involves credibility concerns, procedural fairness issues, ignored evidence, unreasonable findings, unclear reasons, discretionary decision-making, inadmissibility concerns, sponsorship refusals, humanitarian and compassionate applications, temporary residence refusals, or prior litigation history.

Judicial review may be appropriate where the decision appears legally flawed, unreasonable, or procedurally unfair.

This may include situations where:

• the refusal does not address important evidence;
• the decision-maker misunderstood the facts;
• the reasons do not explain the outcome;
• the decision relies on assumptions rather than the record;
• the applicant was not given a fair chance to respond to a concern;
• the wrong legal test was applied;
• relevant documents appear to have been ignored;
• the refusal is inconsistent with the evidence submitted;
• the decision involves serious consequences; or
• a reapplication alone would not adequately address the problem.

Judicial review may not be suitable where:

• the refusal is legally correct and supported by the record;
• the applicant has a statutory appeal that must be used first;
• the issue is a processing delay rather than a final refusal;
• the applicant did not submit required documents before the refusal;
• the application was incomplete;
• the deadline has passed and an extension is unlikely;
• a stronger new application would be more practical; or
• the issue is better addressed through reconsideration, reapplication, appeal, mandamus, or another remedy.

A refusal should be reviewed before choosing the next step. Depending on the circumstances, the options may include requesting officer’s notes, preparing a reconsideration request, filing a stronger new application, appealing where available, or seeking judicial review at the Federal Court.