Ontario Administrative Law — Judicial Review, Tribunals, and Procedural Fairness

Constitutional Basis and Scope of Administrative Law

Administrative law governs the exercise of statutory powers by government decision-makers — tribunals, boards, ministers, and administrative officials. In Ontario, administrative decision-making is subject to both federal and provincial constitutional constraints. The Constitution Act 1867 divides legislative authority between Parliament and provincial legislatures: provincial administrative law flows from provincial legislative competence under s.92 heads of power (property and civil rights, local and private matters, administration of justice). Federal administrative decision-makers are subject to judicial review in the Federal Court under the Federal Courts Act RSC 1985 c F-7. Ontario administrative decision-makers are reviewable in the Divisional Court under the Judicial Review Procedure Act RSO 1990 c J.1 (JRPA).

The Supreme Court of Canada's decision in Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 fundamentally restructured the standard of review framework that now governs judicial review of administrative decisions across Canada, including Ontario administrative law proceedings.

Standard of Review: Vavilov Framework

Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 established a revised standard of review framework. The default standard is reasonableness. Courts presume that legislators intend administrative decision-makers to have the primary responsibility for resolving questions within their statutory mandate.

Correctness applies in two categories. First, where the legislature has explicitly signalled that correctness applies — for example by providing a statutory right of appeal or by prescribing the standard in the enabling statute. Second, for certain categories of legal questions regardless of legislative intent: (1) constitutional questions, including division of powers and Charter questions where the administrative decision-maker's statutory authority is being questioned; (2) general questions of central importance to the legal system as a whole and outside the adjudicator's specialized expertise; (3) questions regarding jurisdictional boundaries between two or more administrative bodies.

Reasonableness review is a single standard that is applied with attention to context. A reasonable decision must be justified, intelligible, and transparent. Vavilov identified two categories of fundamental flaws that will render a decision unreasonable: (1) a failure of rationality internal to the decision-maker's reasoning process — the reasoning does not bear logical scrutiny; and (2) a decision that is untenable in light of the relevant factual and legal constraints — legal constraints include the governing statutory scheme, other relevant statutory and common law principles, prior decisions of the tribunal and courts, and the requirement to respond to the parties' submissions. Mason v Canada (Citizenship and Immigration) 2023 SCC 21 confirmed that Vavilov applies to Charter issues raised before administrative decision-makers: the standard is reasonableness unless correctness is triggered by one of the Vavilov exceptions.

Procedural Fairness: Baker Factors

Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 established a contextual approach to procedural fairness requirements. The content of procedural fairness varies with context; it is not a fixed standard. Baker identified five factors relevant to determining the procedural fairness owed in any particular case:

• Nature of the decision and process used: Decisions that are more adjudicative in nature and that closely resemble judicial proceedings attract higher procedural protections. Legislative or policy decisions attract fewer procedural requirements.
• Nature of the statutory scheme: Where a statute provides for appeal rights or review mechanisms, this signals that the legislature intended procedural protections. Where a statute signals finality or speed, less procedure may be required.
• Importance of the decision to the individual affected: The more significant the impact on the individual's rights, interests, or expectations, the more procedural protection is warranted. Decisions affecting fundamental rights (liberty, security, livelihood) attract the highest protections.
• Legitimate expectations of the party claiming the right: Where a party has been given a specific undertaking or promise of a particular procedure, or where a consistent administrative practice has created a reasonable expectation, fairness may require that the expectation be honoured.
• Choices of procedure made by the agency: Courts give deference to the procedural choices made by tribunals with expertise in their area, particularly where Parliament or the legislature has given the tribunal wide latitude to determine its own procedures.

At minimum, procedural fairness requires the right to be heard (the opportunity to present evidence and argument before an adverse decision is made) and the right to an unbiased decision-maker (the rule against bias). Newfoundland Nurses 2011 SCC 62 confirmed that courts may look to the record and the parties' submissions to supplement sparse reasons — adequacy of reasons is assessed against the Baker contextual factors.

Statutory Powers Procedure Act (SPPA)

The Statutory Powers Procedure Act RSO 1990 c S.22 (SPPA) establishes minimum procedural requirements for Ontario tribunals exercising statutory powers of decision affecting parties' legal rights, powers, privileges, immunities, duties, or liabilities. The SPPA applies unless a tribunal's enabling statute expressly or by necessary implication modifies or excludes its requirements.

Key SPPA requirements include: (1) notice — parties must receive reasonable notice of the hearing and the matters to be decided (s.6); (2) right to hearing — parties have the right to present evidence and make submissions (s.10); (3) oral evidence — oral hearings are the default unless the tribunal determines that written submissions are adequate (s.5.1-5.2); (4) electronic hearings — permitted unless a party objects and satisfies the tribunal that electronic participation would cause prejudice (s.5.2); (5) public hearings — default is public absent grounds for exclusion (s.9); (6) disclosure — parties may examine evidence before a hearing (s.9.1); (7) representation — parties may be represented by counsel or agent (s.10); (8) interim orders — tribunals may make interim decisions pending final disposition (s.16.1); (9) appeals — reserved to the enabling statute but SPPA s.21 preserves judicial review rights.

Amendments to the SPPA by the Tribunal Adjudicative Records Act SO 2019 c 7 and subsequent reforms also address electronic records and modernized disclosure obligations. Tribunals Ontario (the consolidated tribunal cluster) has its own Practice Directions that supplement the SPPA.

Major Ontario Tribunals

Ontario has a large and diverse administrative tribunal system covering most areas of regulated activity:

• Landlord and Tenant Board (LTB): Governs residential tenancy disputes under the Residential Tenancies Act SO 2006 c 17. Subject to judicial review in Divisional Court. Post-Vavilov, LTB decisions on mixed law/fact questions reviewed for reasonableness.
• Ontario Human Rights Tribunal (HRTO): Adjudicates applications under the Human Rights Code RSO 1990 c H.19. Direct access model — complainants apply directly without going through the Human Rights Commission (post-2008 reforms). Remedies include compensation, reinstatement, public interest remedies, and discrimination findings.
• Labour Relations Board (OLRB): Administers the Labour Relations Act SO 1995 c 1 Sch A — collective bargaining rights, unfair labour practices, organizing rights. Strong privative clause limits judicial review to jurisdictional errors and denial of natural justice.
• Environmental Review Tribunal (ERT): Hears appeals from decisions under environmental legislation including the Environmental Protection Act RSO 1990 c E.19. Specialized tribunal with technical expertise; standard of review tilts toward deference.
• Conservation Review Board: Reviews heritage property designations under the Ontario Heritage Act RSO 1990 c O.18.
• Financial Services Regulatory Authority (FSRA): Regulates insurance, credit unions, mortgage brokers, and financial planners. Appeals from FSRA Director decisions go to the Financial Services Tribunal.
• Law Society Tribunal: Adjudicates discipline and licensing matters under the Law Society Act RSO 1990 c L.8. Decisions on professional conduct reviewed on reasonableness for factual findings and penalty; correctness for questions of law of general importance.
• Assessment Review Board (ARB): Hears appeals of property assessments under the Assessment Act RSO 1990 c A.31 — relevant for real property and commercial litigation.

Judicial Review Procedure in Ontario

Judicial review of Ontario administrative decisions proceeds in the Divisional Court under the Judicial Review Procedure Act RSO 1990 c J.1. Key procedural points:

• Leave requirement: No leave is required for judicial review in the Divisional Court for most matters, but some enabling statutes impose a leave requirement. The Court of Appeal has leave requirements for further appeals.
• Time limits: JRPA s.5 — application must be made promptly, and in any event within 30 days of the order or decision, unless the court extends the time. Extensions are discretionary; courts consider prejudice and merits.
• Privative clauses: Many enabling statutes contain privative clauses purporting to bar or limit judicial review. Post-Vavilov, privative clauses signal legislative intent for deference but do not oust constitutional judicial review — courts retain supervisory jurisdiction under s.96 Constitution Act 1867.
• Exhaustion of remedies: Courts generally require parties to exhaust all statutory remedies (appeals, reconsideration) before applying for judicial review, unless the statutory remedy is inadequate or exceptional circumstances justify bypassing it.
• Record: The tribunal is required to produce the record of proceedings. Fresh evidence is generally not admitted; the record is defined by what was before the decision-maker.

Remedies on Judicial Review

JRPA s.2 codifies the traditional prerogative writs as judicial review remedies: certiorari (quash the decision), mandamus (order the tribunal to perform its duty), prohibition (restrain the tribunal from acting), and declaratory relief. In practice, Ontario courts grant certiorari to quash unreasonable decisions and remit to the tribunal for redetermination.

Remittal is the standard remedy on successful judicial review — courts generally do not substitute their own decision for the tribunal's on the merits. The court will substitute its own decision only where there is only one reasonable outcome and remittal would serve no purpose (Vavilov para 142). A court may also decline to grant relief where the outcome would inevitably be the same even on redetermination, or where the defect in procedure caused no prejudice.

Practical Implications for Ontario Solicitors

Administrative law matters arise frequently in Ontario general practice:

• Real estate: LTB proceedings for landlord clients, ARB assessment appeals, Committee of Adjustment variances (reviewable in Divisional Court).
• Employment: Employment Standards Act complaints, WSIB appeals (Workplace Safety and Insurance Appeals Tribunal), OHSA inspector orders.
• Corporate/regulatory: FSRA licensing decisions, securities regulatory proceedings, business licensing appeals.
• Human rights: HRTO applications as respondent counsel, advising on accommodation obligations, defending complaints.
• Immigration: Federal administrative law — Immigration and Refugee Board, Immigration Division, Refugee Appeal Division — Federal Court judicial review.