[1] It is meant to ensure that powers granted to government actors, administrative agencies, boards and tribunals are exercised consistently with the rule of law.
Legal mechanisms were put into place to ensure that legislation created in the colonies was compliant with British law.
Section 101 of The Constitution Act contains the clause that gives Parliament the power to create a "General Court of Appeal for the Federated Provinces."
[8] Despite the intentions of the drafters of the constitution, section 101 was used to create first the Supreme and Exchequer Courts, both of which were explicitly formed, in part, to replace the Judicial Committee.
As well, the court analyzes whether the application was made within an appropriate amount of time, and whether the parties have exhausted all avenues of recourse, including grievances and appeals.
The framework for judicial review was revised in Canada (Minister of Citizenship and Immigration) v Vavilov,[18] which "conclusively closes the door on the application of a contextual analysis to determining the applicable standard, and in doing so streamlines and simplifies the standard.”[19] All decisions are now presumed to be held to a standard of reasonableness.
This presumption can be rebutted in two ways: 1) through clear legislative intent; or, 2) if the rule of law requires that the standard of correctness be applied.
[20] When applying the correctness standard, the court carries out its own statutory analysis and arrive at its own understanding of how the issue should be decided.
[20] The remedies available to the courts when they are performing judicial review are all forms of injunction that originated with the early English prerogative writs.
[24] The superior courts in each province, governed by rules of civil procedure, have exclusive jurisdiction for judicial review of decisions of provincial administrative agencies.
In the federal courts, there is a specific 30 day time limitation with which to make an application for judicial review, which can be found in s.18.1(2).
[25] This British Columbia legislation governs the superior courts judicial review of administrative tribunals' decisions.
The Act only has twenty-one sections, but each contains important provisions for applications for judicial review in British Columbia.
[26] This directly affects s. 11 of the Act, and the court in Braut v Johnson determined that the 60 day limitation period governs, where the applicant has not shown that they have: 1) serious grounds for relief; 2) a reasonable explanation for the delay in application; and, 3) no substantial prejudice or hardship will result to a person affected by the delay.
[32] Another common justification for judicial review is that administrative tribunals perform functions similar to the courts, and should therefore be subject to the same procedural safeguards.
[34] A second issue regarding judicial review that is frequently criticized is the administrative law's inability to adapt quickly.