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| This Act is current to November 26, 2024 | |||
| See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force. |
1 In this Act:
"application for judicial review" means an application under section 2;
"court" means the Supreme Court;
"decision" includes a determination or order;
"Indigenous governing body" has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act;
"licence" includes a permit, certificate, approval, order, registration or similar form of permission required by law;
"record of the proceeding" includes the following:
(a) a document by which the proceeding is commenced;
(b) a notice of a hearing in the proceeding;
(c) an intermediate order made by the tribunal;
(d) a document produced in evidence at a hearing before the tribunal, subject to any limitation expressly imposed by any other enactment on the extent to which or the purpose for which a document may be used in evidence in a proceeding;
(e) a transcript, if any, of the oral evidence given at a hearing;
(f) the decision of the tribunal and any reasons given by it;
(g) in relation to a decision whether to give consent referred to in section 22 (2),
(i) a document or other evidence before the Indigenous governing body, subject to any limitation expressly imposed by any other enactment on the extent to which or the purpose for which a document or other evidence may be used in a proceeding, and
(ii) the decision of the Indigenous governing body and any reasons given by it;
"statutory power" means a power or right conferred by an enactment
(a) to make a regulation, rule, bylaw or order,
(b) to exercise a statutory power of decision,
(c) to require a person to do or to refrain from doing an act or thing that, but for that requirement, the person would not be required by law to do or to refrain from doing,
(d) to do an act or thing that would, but for that power or right, be a breach of a legal right of any person, or
(e) to make an investigation or inquiry into a person's legal right, power, privilege, immunity, duty or liability;
"statutory power of decision" means a power or right conferred by an enactment to make a decision deciding or prescribing
(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or
(b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not the person is legally entitled to it,
and includes the powers of the Provincial Court;
"tribunal" means one or more persons, whether or not incorporated and however described, on whom a statutory power of decision is conferred.
2 (1) An application for judicial review must be brought by way of a petition proceeding.
(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of the proceedings for:
(a) relief in the nature of mandamus, prohibition or certiorari;
(b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported exercise, of a statutory power.
3 The court's power to set aside a decision because of error of law on the face of the record on an application for relief in the nature of certiorari is extended so that it applies to an application for judicial review in relation to a decision made in the exercise of a statutory power of decision to the extent it is not limited or precluded by the enactment conferring the power of decision.
4 Subject to section 3, nothing in this Act permits a person to bring a proceeding referred to in section 2 if the person is otherwise limited or prohibited by law from bringing the proceeding.
5 (1) On an application for judicial review in relation to the exercise, refusal to exercise, or purported exercise of a statutory power of decision, the court may direct the tribunal whose act or omission is the subject matter of the application to reconsider and determine, either generally or in respect of a specified matter, the whole or any part of a matter to which the application relates.
(2) In giving a direction under subsection (1), the court must
(a) advise the tribunal of its reasons, and
(b) give it any directions that the court thinks appropriate for the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.
6 In reconsidering a matter referred back to it under section 5, the tribunal must have regard to the court's reasons for giving the direction and to the court's directions.
7 If an applicant is entitled to a declaration that a decision made in the exercise of a statutory power of decision is unauthorized or otherwise invalid, the court may set aside the decision instead of making a declaration.
8 (1) If, in a proceeding referred to in section 2, the court had, before February 1, 1977, a discretion to refuse to grant relief on any ground, the court has the same discretion to refuse to grant relief on the same ground.
(2) Despite subsection (1), the court may not refuse to grant relief in a proceeding referred to in section 2 on the ground that the relief should have been sought in another proceeding referred to in section 2.
9 (1) On an application for judicial review of a statutory power of decision, the court may refuse relief if
(a) the sole ground for relief established is a defect in form or a technical irregularity, and
(b) the court finds that no substantial wrong or miscarriage of justice has occurred.
(2) If the decision has already been made, the court may make an order validating the decision despite the defect, to have effect from a time and on terms the court considers appropriate.
10 On an application for judicial review, the court may make an interim order it considers appropriate until the final determination of the application.
11 An application for judicial review is not barred by passage of time unless
(a) an enactment otherwise provides, and
(b) the court considers that substantial prejudice or hardship will result to any other person affected by reason of delay.
12 (1) No writ of mandamus, prohibition or certiorari may be issued.
(2) An application for relief in the nature of mandamus, prohibition or certiorari, must be treated as an application for judicial review under section 2.
13 (1) On the application of a party to a proceeding for a declaration or injunction, the court may direct that any issue about the exercise, refusal to exercise or proposed or purported exercise of a statutory power be disposed of summarily, as if it were an application for judicial review.
(2) Subsection (1) applies whether or not the proceeding for a declaration or injunction includes a claim for other relief.
14 An application for judicial review is sufficient if it sets out the ground on which relief is sought and the nature of the relief sought, without specifying by which proceeding referred to in section 2 the claim would have been made before February 1, 1977.
15 (1) For an application for judicial review in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power
(a) must be served with notice of the application and a copy of the petition, and
(b) may be a party to the application, at the person's option.
(2) If 2 or more persons, whether styled a board or commission or any other collective title, act together to exercise a statutory power, they are deemed for the purpose of subsection (1) to be one person under the collective title, and service, if required, is effectively made on any one of those persons.
16 (1) The Attorney General must be served with notice of an application for judicial review and notice of an appeal from a decision of the court with respect to the application.
(2) The Attorney General is entitled to be heard in person or by counsel at the hearing of the application or appeal.
17 On an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision, the court may direct that the record of the proceeding, or any part of it, be filed in the court.
18 (1) Informations in the nature of quo warranto are abolished.
(2) If a person acts in an office in which the person is not entitled to act and an information in the nature of quo warranto would, but for subsection (1), have been available against the person the court may, under an application for judicial review, grant an injunction restraining the person from acting and may declare the office to be vacant.
(3) A proceeding for an injunction under this section may not be taken by a person who would not immediately before February 1, 1977, have been entitled to apply for an information in the nature of quo warranto.
19 This Act is subject to the Crown Proceeding Act.
20 If reference is made in any other enactment to a proceeding referred to in section 2 or 18, the reference is deemed to be a reference to an application for judicial review.
21 If a final agreement provides that the court has jurisdiction to hear an application for judicial review of a decision taken under a law of the treaty first nation by the treaty first nation or a public institution established under a law of the treaty first nation, this Act applies in relation to the application as if the law of the treaty first nation were an enactment.
22 (1) If under an enactment the consent of an Indigenous governing body is required to be sought or obtained in accordance with an agreement entered into under section 6 or 7 of the Declaration on the Rights of Indigenous Peoples Act before the exercise of a statutory power,
(a) subject to subsection (2), this Act applies in relation to the decision whether to give consent as if that decision were a statutory power,
(b) the Indigenous governing body is deemed for the purposes of section 15 (1) of this Act to be one person,
(c) section 15 (2) of this Act does not apply in relation to the decision whether to give consent, and
(d) service, if required to be made on the Indigenous governing body, is effectively made by a person if made in accordance with the agreement relating to the consent of the Indigenous governing body before the exercise of the statutory power, as if the person were a party to the agreement.
(2) If under an enactment the consent of an Indigenous governing body is required to be sought or obtained in accordance with an agreement entered into under section 7 of the Declaration on the Rights of Indigenous Peoples Act before the exercise of a statutory power of decision, this Act applies in relation to the decision whether to give consent as if that decision were a statutory power of decision.
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