12.3 Judicial Review Basics for Paralegals

Judicial review is deliberately the last topic in this chapter because it sits at the outer edge of a paralegal's competence: the P1 exam expects you to recognize when a matter has become a judicial review issue and understand the basic legal framework — not to conduct the review yourself. Getting this boundary right is itself a tested competency.

What Judicial Review Is (and Isn't)

Judicial review is the process by which a superior court supervises the legality of decisions made by administrative tribunals, boards, and other statutory decision-makers. It is not a retrial and not a substitute for an appeal: the reviewing court does not re-decide the merits or substitute its own preferred outcome. Instead, it asks whether the decision-maker acted within its authority, followed a fair process, and reached a decision that can be justified under the law and the record — the court supervises how the decision was made, not simply whether the court agrees with it.

Appeal vs Judicial Review

A paralegal's first job when a client says "I want to appeal" is to check the enabling statute: if it creates no appeal route, the only avenue is judicial review — a different process with different rules, remedies, and, critically, a different forum.

The Judicial Review Procedure Act and the Divisional Court

Before 1971, a party seeking to challenge a tribunal decision needed the correct historical prerogative writ — certiorari, mandamus, prohibition — each with its own technical rules. The JRPA replaced that patchwork with a single, unified application for judicial review, while preserving the underlying remedies (the court can still quash a decision as if granting certiorari, compel action as if granting mandamus, or issue a declaration or injunction). Under JRPA s. 6(1), an application for judicial review must be made to the Divisional Court, normally heard by a panel of three judges. Section 6(2) allows a single judge of the Superior Court to hear an urgent application only where the delay of waiting for the Divisional Court would likely cause a failure of justice — a high bar that courts apply narrowly, especially now that expedited panel hearings are routinely available.

Standard of Review After Vavilov

Since Canada (Minister of Citizenship and Immigration) v Vavilov (2019 SCC 65), the starting point for every judicial review application is a presumption of reasonableness review: the court asks whether the tribunal's decision is justified, transparent, and intelligible in light of the facts and law, and it defers to the tribunal's expertise rather than asking what the court itself would have decided. That presumption is rebutted — meaning the stricter correctness standard applies instead — only in narrow circumstances: where the legislature has provided a statutory right of appeal (appellate standards then apply), or where rule-of-law concerns demand a single correct answer, such as constitutional questions, general questions of law of central importance to the legal system, or disputes about jurisdictional boundaries between two tribunals. For the exam, the key takeaway is the default: most tribunal decisions get reasonableness review, meaning the court will uphold a decision that falls within a range of defensible outcomes even if the court might have decided differently itself.

Remedies, Delay & Exhausting Alternatives

Courts hearing a judicial review application can grant several remedies, alone or in combination: quashing the decision (sending it back for redetermination), declarations, injunctions, and orders compelling a tribunal to act (mandamus) or preventing it from proceeding (prohibition). Two practical limits matter for spotting exam fact patterns. First, courts generally require an applicant to exhaust adequate alternative remedies — an internal appeal, reconsideration process, or statutory review — before turning to judicial review, except in exceptional circumstances such as a genuine breach of natural justice. Second, although the JRPA itself does not set a single fixed limitation period, courts can refuse relief for undue delay in bringing the application, so paralegals must flag review deadlines to clients immediately rather than waiting.

The Scope-of-Practice Boundary Every P1 Candidate Must Know

This is the single most important practical point in this section: judicial review applications are heard in the Divisional Court, and under Law Society Act By-Law 4, a P1 paralegal's scope of practice does not currently extend to representing a client in the Divisional Court. A paralegal who has represented a client all the way through a tribunal hearing must recognize the moment that file needs judicial review and refer the client to a lawyer rather than attempting to act — continuing to act would breach both By-Law 4 and the scope-of-practice duties covered earlier in this guide. The Law Society consulted the profession in 2025 on a proposal to expand paralegal scope to include certain Divisional Court appeals and judicial reviews; candidates should rely on the scope rules in force at the time of their exam, not on a pending proposal.

Paralegal Scenario

A paralegal successfully represents a tenant at an LTB hearing, but the adjudicator refuses to let the tenant call a witness and issues an eviction order the same day. The tenant wants to challenge the decision. Because the Residential Tenancies Act provides an appeal route to the Divisional Court only on a question of law, and this fact pattern instead raises a fairness problem (refusal to call a witness), the stronger avenue may be judicial review rather than a statutory appeal — but either path lands in the Divisional Court, which is outside this paralegal's scope. The correct, exam-tested answer is to advise the tenant of the option and the urgency of any deadline, and refer them to a lawyer, rather than filing the application personally.