Fundamentals of Judicial Review
Prepared For:
The Legal Education Society of Alberta
For Presentation in:
Calgary, Alberta
September 16, 2014
Edmonton, Alberta
September 17, 2014
Introduction
Prepared For: Legal Education Society of Alberta
Fundamentals of Judicial Review
Presented by:
William Shores QC
Shores Jardine LLP
Edmonton, Alberta
Jeremy Schick
Alberta Labour Relations Board
Edmonton, Alberta
For Presentation In:
Calgary – September 16, 2014
Edmonton – September 17, 2014
INTRODUCTION
What is judicial review?
Judicial review is the mechanism through which the courts supervise the actions of governments and
their agencies. In the leading case, Dunsmuir v. New Brunswick, the Supreme Court of Canada
describes the function of judicial review:
By virtue of the rule of law principle, all exercises of public authority must find their
source in law. All decision-making powers have legal limits, derived from the enabling
statute itself, the common or civil law or the Constitution. Judicial review is the
means by which the courts supervise those who exercise statutory powers, to ensure
that they do not overstep their legal authority. The function of judicial review is
therefore to ensure the legality, the reasonableness and the fairness of the
administrative process and its outcomes.1
Professor David Mullan has described the background to the courts’ jurisdiction to supervise the
actions of government:
Historically, the English courts corrected unlawful administrative action through the
various prerogative writs, later supplemented by the equitable remedies of injunction
and declaration and, to a limited degree, monetary relief. This was the system of
judicial review inherited from England by the various provinces of Canada.2
In Alberta, this inherent jurisdiction has been subsumed into the remedy of judicial review under the
Alberta Rules of Court. Now, the remedy of judicial review includes the prerogative writs, injunction
and declaration. Damages cannot be obtained through judicial review.
Prerogative writs
The prerogative writs3 are:

Certiorari—allows a court to review the record of an administrative body to determine
whether the administrative body is acting lawfully, reasonably and fairly. The court may
grant an order “quashing” or setting aside the decision and remitting back to the
administrative body for reconsideration. In some cases, a court will simply set the
decision aside and not remit it to the administrative body for reconsideration.
[2008] 1 S.C.R. 190; 2008 SCC 190 at para. 28.
Mullan, Administrative Law (3d) at p. 455.
3 For an extensive discussion of the prerogative writs, see Jones and deVillars, Principles of Administrative Law (6th Ed) at
pp. 663 to 698.
1
2
1

Mandamus—allows a court to make an order that compels a government authority to
perform a legal duty. Mandamus can only be granted if there is a legal duty; it will not be
granted to compel an administrative body to exercise a discretion in a particular way.

Prohibition—allows a court to make an order that prevents an administrative body or
government official from acting unlawfully. It is directed at decisions that have yet to be
made.

Quo Warranto—allows a court to require a decision maker to show by what legal authority
he or she is acting and to order that the decision maker cease acting if not authorized.
Historically, this writ was used to challenge a person’s entitlement to public office;
however, in the case of elected officials it has largely been superseded by statutory
procedures and in other cases by the use of certiorari and prohibition.

Habeus Corpus—a venerable writ of the court associated with civil liberties. An order of
habeus corpus requires an official who has custody of a person to bring that person
before the court and demonstrate to the court the authority by which he or she holds the
person. It has become a very flexible remedy that governs not only penal detention but
also other forms of administrative detention. It can also be used to relieve against the
conditions under which a person is held.
Injunctions and declarations
The historical roots of injunction and declaration lie in private law. Before the introduction of the
modern judicial review rules, injunctions and declarations could only be sought through an action;
now they are an integral part of the power of a court on judicial review.4

Injunctions—an injunction can be used to stop an administrative body from acting
unlawfully or to compel it to act. Significantly, a court will not grant an injunction against
the Crown. Injunctions take a number of forms—they can be prohibitory or mandatory;
they can be permanent or interim. An interim injunction allows the court to “freeze”
matters temporarily until a full court application on the issue can be heard. This is a
significant addition to the judicial review panoply, because the prerogative writs are final
orders and cannot be issued on an interim basis.

Declaration—a court has the power to make a legal “declaration of rights.” A declaration
does not compel a party to abide by it. However, by convention in Canada, the Crown,
For an extensive discussion of injunctions and declaration in the judicial review context, see Jones and deVillars, supra at
pp. 699 to 734.
4
2
which is immune from injunctions, respects a declaration. As neither prerogative
remedies nor injunctions lie against the Crown, declaration is often the only way of
stopping unlawful Crown action.
Neither Parliament nor the Legislature can remove the ability of the Court to undertake judicial
review of government action
Legislation frequently includes “privative clauses” which purport to oust the jurisdiction of the court
to exercise its judicial review authority. These are frequently cast in the widest terms. For example,
the Expropriation Act5 provides:
Proceedings before inquiry officer
17 No proceedings by or before an inquiry officer or the Board in carrying out the
functions of an inquiry officer shall be restrained by injunction, prohibition or other
process or proceedings in any court or are removable by certiorari or otherwise into
court nor shall any report or recommendation by the inquiry officer or the Board in
carrying out the functions of an inquiry officer be subject to review in any court.
However, these privative clauses cannot oust the jurisdiction of the court, which is constitutionally
entrenched. The Supreme Court noted in Dunsmuir at para. 31:
The legislative branch of government cannot remove the judiciary's power to review
actions and decisions of administrative bodies for compliance with the constitutional
capacities of the government. Even a privative clause, which provides a strong
indication of legislative intent, cannot be determinative in this respect (Executors of
the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, at p. 127). The
inherent power of superior courts to review administrative action and ensure that it
does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101
of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v.
Bibeault, [1988] 2 S.C.R. 1048, at p. 1090, "[t]he role of the superior courts in
maintaining the rule of law is so important that it is given constitutional protection".
In short, judicial review is constitutionally guaranteed in Canada, particularly with
regard to the definition and enforcement of jurisdictional limits.
Conclusion
Judicial review is a flexible tool that provides the courts with the authority to ensure that government
only exercises the power granted to it and does so reasonable and fairly.
5
RSA 2000, c. E-13.
3