WET 219 - Applied Water Law

Under Administrative Law plaintiffs can seek Judicial review, which is a legal process by which courts make sure that the decisions of administrative bodies are fair, reasonable, and lawful. In Canada, there are two types of ‘judicial review’

(i) judicial review on administrative acts, and

(ii) judicial review on the constitutionality of legislation.

At the federal level, Judicial Review is carried out by the Federal Court in accordance with section 18.1 of the Federal Courts Act, which has exclusive jurisdiction to review the legality of actions of most federal offices, boards, commissions and tribunals.

In British Columbia, Judicial Review is conducted by Supreme Court justices where they review a decision that has been made by an administrative tribunal or an administrative decision-maker.

This activity is governed by several provincial Acts that describe the manner in which courts carry out such activities. Two of the more important are the Administrative Tribunals Act, which sets out the time limits for applying for a judicial review, and the Judicial Review Procedure Act, which sets out the procedural requirements.

Citizens, businesses and government can seek judicial review. 

An injunction, generally, is an order issued by a court of original jurisdiction requiring a defendant to refrain from committing a specific act, either in process or threatened, injurious to the plaintiff. Injunctions are granted on the usual grounds for equitable actions, namely, that no adequate remedy exists at law, and that the act complained of is causing, or will cause, irreparable damage to the plaintiff.

Injunctions are generally preventive, restraining, or prohibitory in nature, but on the same grounds, they may be granted to compel a defendant to undertake an affirmative act, such as to destroy a wall that encroaches on the property of the plaintiff or to restore the course of a stream that has been diverted from the plaintiff’s property. Such affirmative orders or decrees are called mandatory interlocutory injunctions. 

The Supreme Court of Canada (SCC) implemented a test involving mandatory injunction based on RJR-MacDonald vs. Canada (Attorney General).  Court wrote that in the cases of mandatory injunctions, the appropriate inquiry at the first stage of the test is into whether the applicants have shown a strong prima facie case, that would succeed at trial.

The SCC rationale for a higher threshold in such cases, writing that

(i) because mandatory injunctions direct a defendant to undertake a positive course of action which is often costly or burdensome; and

(ii) because such orders are generally difficult to justify at the interlocutory stage as restorative relief can usually be obtained at trial, the potentially severe consequences to a defendant which can result from a mandatory interlocutory injunction demand an "extensive review of the merits" at the interlocutory stage.

Because this decision was made by the SCC it is now considered to be a law of the land.

A writ of mandamus or simply mandamus, which means “we command” in Latin, is the name of one of the prerogative writs in the common law, and is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.

At the federal level, Judicial Review is carried out by the Federal Court in accordance with section 18.1 of the Federal Courts Act, which has exclusive jurisdiction to review the legality of actions of most federal offices, boards, commissions and tribunals.

In British Columbia, Judicial Review is conducted by Supreme Court justices where they review a decision that has been made by an administrative tribunal or an administrative decision-maker.

A writ of certiorari is an administrative law remedy that effectively quashes past conduct for which there was no jurisdiction, it is used as part of judicial review, whereby plaintiffs can seek a writ of certiorari. 

Certiorari is derived from the Latin meaning to be “informed”.  Such writs require the lower courts (or tribunal) to deliver their findings to the appeals courts for review.

The procedure enables higher courts to review lower court (or tribunal) decisions for possible judicial errors that might justify overturning those decisions.

At the federal level, such writs are issued in accordance with section 18.1 of the Federal Courts Act, which has exclusive jurisdiction to review the legality of actions of most federal offices, boards, commissions and tribunals.

In British Columbia,  the Supreme Court has the power to issue such writs under the Judicial Review Procedures Act. 

Prohibition is a prerogative writ that stops a lower court or government official from doing something. Such a writ only prevents future action, it does not cancel decisions that have already been made. it is often combined with a writ of certiorari which will vacate the earlier decision prior to prohibition stopping future similar decisions.

In order to obtain such a writ, one has to apply to a court of original inherent jurisdiction. Matters involving the federal government of Canada, are heard in Federal Court which has exclusive original jurisdiction involving the issuance of an injunction, writ of certiorari, writ of prohibition, writ of mandamus or grant declaratory relief, against any federal board, commission or other tribunals.

At the federal level, Judicial Review is carried out by the Federal Court in accordance with section 18.1 of the Federal Courts Act, which has exclusive jurisdiction to review the legality of actions of most federal offices, boards, commissions and tribunals.

In British Columbia, the proper court is the Supreme Court, whose activities are carried out under the Judicial Review Procedures Act. It is a court of general and inherent jurisdiction, which means that it can hear any type of case, civil or criminal. It also hears most appeals from the Provincial Court, in both civil and criminal cases.  

In Canadian administrative law, quo warranto, Latin for "by what warrant" is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some power, or right, or franchise they claim to hold.

At the federal level, Judicial Review is carried out by the Federal Court in accordance with section 18.1 of the Federal Courts Act, which has exclusive jurisdiction to review the legality of actions of most federal offices, boards, commissions and tribunals.

In British Columbia, the proper court is the Supreme Court, whose activities are carried out under the Judicial Review Procedures Act. It is a court of general and inherent jurisdiction, which means that it can hear any type of case, civil or criminal. It also hears most appeals from the Provincial Court, in both civil and criminal cases.