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22Nov
2019

Judicial Review: What You Need To Know

Judicial review is the mechanism by which the courts supervise those who exercise statutory powers to ensure that they do not overstep their delegated authority. The role of judicial review in today’s society and, in particular, in the context of local government decision-making was described by the Supreme Court of Canada in Catalyst Paper Corp. v. North Cowichan as follows:

10 It is a fundamental principle of the rule of law that state power must be exercised in accordance with the law. The corollary of this constitutionally protected principle is that superior courts may be called upon to review whether particular exercises of state power fall outside the law. We call this function “judicial review”.

11 Municipalities do not have direct powers under the Constitution. They possess only those powers that provincial legislatures delegate to them. This means that they must act within the legislative constraints the province has imposed on them. If they do not, their decisions or bylaws may be set aside on judicial review.

12 A municipality's decisions and bylaws, like all administrative acts, may be reviewed in two ways. First, the requirements of procedural fairness and legislative scheme governing a municipality may require that the municipality comply with certain procedural requirements, such as notice or voting requirements. If a municipality fails to abide by these procedures, a decision or bylaw may be invalid. But in addition to meeting these bare legal requirements, municipal acts may be set aside because they fall outside the scope of what the empowering legislative scheme contemplated. This substantive review is premised on the fundamental assumption derived from the rule of law that a legislature does not intend the power it delegates to be exercised unreasonably, or in some cases, incorrectly.

From the foregoing, it can be seen that, as local governments are creatures of statute, and only have the powers delegated to them by the Provincial and Federal governments, judicial review is available in relation to all aspects of local government action, whether it be the exercise of their natural person powers or the exercise of legislative and quasi-judicial powers.

In this regard, judicial review proceedings may be brought against local governments on either procedural fairness grounds or on substantive grounds.

In light of the breadth of the availability of judicial review in relation to local government action, all local governments should have a fundamental understanding of judicial review and how it may impact their activities.

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