Judicial Review in the Federal Courts

Overview

Federal administrative law in Canada operates through a statutory framework created pursuant to section 101 of the Constitution Act, 1867. Prior to the creation of the Federal Court of Canada in 1971, provincial superior courts exercised inherent supervisory control over federal administrative officers through prerogative writs. Parliament centralized this jurisdiction by establishing the Federal Court of Canada (now the Federal Court and Federal Court of Appeal) and granting it exclusive supervisory authority over federal administrative action.

A procedural reform in 1992 consolidated historical prerogative writs into a single proceeding: the application for judicial review governed by sections 18, 18.1, and 18.2 of the Federal Courts Act and Part 5 of the Federal Courts Rules.

This study note examines federal judicial review, including the scope of a federal board, commission or other tribunal, the jurisdictional division between the Federal Court and Federal Court of Appeal, standing, the statutory 30-day period for decisions or orders, subject to extension, remedies under section 18.1(3), the closed-record evidentiary rule, interlocutory stays under section 18.2, and appellate procedures.

┌────────────────────────────────────────────────────────────────────────┐
│               CANADIAN FEDERAL JUDICIAL REVIEW STRUCTURE               │
└───────────────────────────────────┬────────────────────────────────────┘
                                    │
        ┌───────────────────────────┴───────────────────────────┐
        ▼                                                       ▼
┌───────────────────────────────┐       ┌───────────────────────────────┐
│     FEDERAL COURT OF APPEAL   │       │         FEDERAL COURT         │
│     (Section 28 FCA Boards)   │       │      (Section 18 Baseline)    │
│  - CRTC, CTA, CIRB, CITT,      │       │  - Ministers of the Crown     │
│    Competition Tribunal, etc. │       │  - Immigration & Refugees     │
│  - Exclusive 1st instance JR  │       │  - Parole, Prisons, RCMP      │
└───────────────┬───────────────┘       │  - Federal boards not in s.28 │
                │                       └───────────────┬───────────────┘
                │                                       │
                │        Ordinary appeal (s. 27)*       │
                └───────────────────────────────────────┘
                                    │
                                    ▼
                ┌───────────────────────────────────────┐
                │        SUPREME COURT OF CANADA        │
                │       (Leave required under s. 40)    │
                └───────────────────────────────────────┘

*Specialized regimes can require leave or exclude an appeal. The diagram lists examples only; the statutory source and subject matter control.

Learning Objectives

Upon completing this study note, the reader will be able to:

• Identify whether an administrative body qualifies as a federal board, commission or other tribunal and determine whether original jurisdiction lies in the Federal Court under section 18 or the Federal Court of Appeal under section 28.
• Draft an originating notice of application complying with Rule 301, establish standing as a directly affected party or public interest litigant, and bring motions for an extension of time under the Grewal framework.
• Formulate strategic requests for remedies under section 18.1(3), requisition the certified tribunal record under Rule 318 while applying closed-record exceptions, substantiate interlocutory stay motions under section 18.2, and navigate appeals under section 27.

Constitutional Basis and Exclusive Jurisdiction

Federal Paramountcy and Section 101 of the Constitution Act, 1867

Section 101 of the Constitution Act, 1867 authorizes Parliament to establish courts for the administration of federal law. The Federal Courts are statutory courts whose jurisdiction must be grounded in legislation, though they also have powers needed to control their own process: Windsor (City) v. Canadian Transit Co., 2016 SCC 54, paras. 25–34.

Historically, Three Rivers Boatman Ltd. v. Canada Labour Relations Board, [1969] S.C.R. 607, concerned provincial superior-court supervision before the Federal Court’s creation. It should not be described as upholding a transfer to a court that did not yet exist.

Sections 18 and 28 now channel the listed public-law remedies against federal boards to the Federal Courts. That allocation must be read with habeas corpus, ordinary civil claims and the collateral consideration of federal law in provincial proceedings (TeleZone; Strickland).

The Scope of Federal Board, Commission or Other Tribunal

Subsection 2(1) defines a federal board by the source of the exercised or purported power: an Act of Parliament or an order under Crown prerogative. It excludes the Tax Court and its judges and associate judges, provincially constituted bodies, and the specified provincial or section 96 appointees.

First identify the particular power being exercised and its source (Anisman, 2010 FCA 52, paras. 29–31). Then consider whether the impugned conduct is public in character (Air Canada v. Toronto Port Authority, 2011 FCA 347, paras. 52–60). Federal incorporation alone does not turn every employment or commercial transaction into reviewable public action; contractual form alone does not conclusively make an act private.

Subsection 2(2) excludes the enumerated parliamentary entities, including the Parliamentary Protective Service and Parliamentary Budget Officer. The Ethics Commissioner’s exclusion is limited to the identified Parliament of Canada Act functions; it is not a blanket exclusion of Conflict of Interest Act functions. Subsection 2(3) deems the Parliamentary Budget Officer a federal board for the reference mechanism in subsection 18.3(1).

Section 28 assigns direct review to the Federal Court of Appeal for listed bodies, including the CRTC, Canada Industrial Relations Board, Copyright Board, Canadian Transportation Agency and Competition Tribunal. Some entries contain subject-matter exceptions. Subsections 28(2)–(3) adapt sections 18–18.5 to this jurisdiction and exclude parallel Federal Court proceedings. The CBSA is not generally a section 28 body.

Always check a specialized statutory appeal. Section 18.5 excludes judicial review to the extent the decision may be appealed through a route it identifies. For example, Broadcasting Act subsection 31(2) provides a leave-to-appeal route on law or jurisdiction; the leave application is ordinarily due within one month of the CRTC decision, with an extension power. Review of other questions remains distinct.

Democracy Watch v. Canada (Attorney General), 2026 SCC 28, paras. 66–72, 82–88, invalidated Conflict of Interest Act section 66 insofar as it excluded review for errors of law and fact. Constitutional protection of legality review applies where the Federal Courts receive exclusive supervision. The Court did not entrench the entire Vavilov standard or determine the precise minimum permissible legislative standard.

Provincial Jurisdiction and the Habeas Corpus Exception

Despite the exclusivity established by section 18, provincial superior courts retain inherent constitutional authority in applications for the writ of habeas corpus.

Subsection 18(2) concerns habeas corpus for a member of the Canadian Forces serving outside Canada. Provincial superior courts retain habeas corpus jurisdiction in other appropriate cases involving federal detention; subsection 18(2) is not the source of that inherent jurisdiction.

May, 2005 SCC 82, Khela, 2014 SCC 24, and Chhina, 2019 SCC 29, preserve this remedy while recognizing two established exceptions: challenges properly brought through the criminal conviction/sentence appeal route, and a complete, comprehensive and expert statutory review process as broad and advantageous as habeas corpus for the particular challenge. The applicant first establishes deprivation of liberty and a legitimate ground to question its legality; the authority must then justify detention. Not every immigration detainee or prisoner automatically bypasses the statutory scheme. Chhina concerned the legality of lengthy detention, not a general review of every immigration decision.

Crown Liability and Concurrent Jurisdiction: The TeleZone Principle

In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, the Supreme Court clarified the division between judicial review and civil liability. Section 18 of the Federal Courts Act prevents provincial superior courts from issuing public law prerogative remedies against federal boards, but does not remove their concurrent jurisdiction over civil damages claims against the Crown. The statutory basis is section 21(1) of the Crown Liability and Proceedings Act: it designates the superior court of the province where the claim arises, except matters within exclusive Federal Court jurisdiction. Section 21(2) also excludes provincial jurisdiction while the same person's Federal Court proceeding on the same cause of action is pending.

A plaintiff claiming that a federal department acted tortiously may sue for damages in a provincial superior court without first applying for judicial review in the Federal Court. However, provincial courts cannot quash the administrative decision or issue mandatory orders against the federal official. To set aside an administrative order or compel official performance, the litigant must proceed before the Federal Courts.

In Strickland v. Canada (Attorney General), 2015 SCC 37, the Supreme Court confirmed that provincial superior courts also possess concurrent jurisdiction to determine the constitutional validity or ultra vires character of federal subordinate regulations when that issue arises collaterally in civil, family, or criminal proceedings regularly pending before them.

The Unified Application for Judicial Review

Notice of Application under the Federal Courts Rules

Under subsection 18(3), the remedies in subsections 18(1)–(2) are pursued by an application for judicial review. Part 5 of the Federal Courts Rules supplies the ordinary application procedure, subject to specialized legislation and rules.

Rule 301 requires Form 301 to identify the court and parties, the tribunal, details of the challenged order and its first communication, precise relief, concise grounds with statutory references, and the documentary evidence to be used. Grounds should be supported by material facts, rather than an unexplained assertion of unfairness.

The grounds in subsection 18.1(4) must be read with Vavilov and the applicable standard; an error-of-law ground does not invariably require correctness review. A Rule 317 request may be included in the notice but is not mandatory in every case.

Rule 302 establishes a single-decision rule: an application for judicial review may not challenge more than one decision unless authorized by court order. Without authorization to combine decisions in one application, separate applications may be managed together or consolidated under Rule 105.

Judicial review of interlocutory decisions rendered during ongoing administrative proceedings is firmly discouraged. In Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, the Federal Court of Appeal held that litigants must exhaust internal administrative proceedings before seeking judicial intervention. Absent exceptional circumstances, the court will dismiss premature applications challenging interim rulings.

Standing: Directly Affected Parties and Public Interest Litigants

Under section 18.1(1) of the Federal Courts Act, an application for judicial review may be initiated by the Attorney General of Canada or by any person who is directly affected by the matter.

A directly affected applicant must show a real effect on rights, obligations or interests under subsection 18.1(1). The degree and nature of any commercial prejudice matter; merely identifying oneself as a competitor is insufficient, but competitors are not universally excluded.

Public interest standing is discretionary. Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, paras. 37–52, directs a flexible balancing of:

1. A serious justiciable issue.
2. A genuine interest in the issue.
3. Whether the proceeding is a reasonable and effective means of bringing it before the court.

No fixed duration of activism is required. Standing to litigate a public issue does not itself establish that the applicant was owed an individual hearing right; identify the source and beneficiary of the procedural duty.

Identifying Respondents and Tribunal Standing under Rule 303

Naming respondents in federal judicial review is governed by Rule 303 of the Federal Courts Rules:

• Rule 303(1)(a) requires naming any person directly affected by the order sought, other than the tribunal itself. In adversarial proceedings, the opposing party before the tribunal must be named as respondent.
• Rule 303(1)(b) requires naming any party designated by statute (such as the Minister of Citizenship and Immigration in immigration proceedings).
• Rule 303(2) provides that if no other person can be named under subrule (1), the Attorney General of Canada must be named as respondent.

Rule 303(1)(a) normally excludes the tribunal itself as respondent. Northwestern Utilities, [1979] 1 S.C.R. 684, explains impartiality concerns; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, paras. 41–59, adopts a contextual approach to tribunal participation. Depending on its role, expertise and the presence of other parties, submissions may extend beyond explaining the statute. A tribunal cannot use litigation to invent new reasons for its decision.

Under Rule 303(3), on the Attorney General’s motion, the court may substitute another person or body, including the tribunal, if the Attorney General named under subrule (2) is unable or unwilling to act. Intervention under Rule 109 is a separate mechanism.

The 30-Day Limitation Period and Extension of Time

Subsection 18.1(2) ordinarily requires an application concerning a decision or order within 30 days of its first communication to the directly affected party or the office of the Deputy Attorney General of Canada. A judge may extend time before or after expiry. The statutory text governs the trigger; the signature date alone is not conclusive.

The provision speaks specifically of a decision or order; do not automatically calculate the same period for every continuing failure to act. Check specialized statutes first. IRPA paragraph 72(2)(b), for example, requires filing and service within 15 days for a matter arising in Canada or 60 days outside Canada, subject to its qualifications and extension power.

The extension inquiry considers the familiar Grewal and Hennelly factors:

1. A continuing intention to pursue the application.
2. An arguable case.
3. Prejudice to the respondent or others.
4. A reasonable explanation for the delay.

These factors inform the overriding interests-of-justice inquiry rather than four inflexible cumulative prerequisites. A weak explanation weighs against an extension but is not invariably fatal (Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, para. 33). Use evidence from the persons with relevant knowledge; the statute does not universally require the applicant’s personal affidavit.

Worked example: Seeking an Extension of Time for a Belated Environmental Application

Factual Scenario

In this hypothetical, a coalition with established standing challenges a reviewable federal decision communicated 45 days earlier. Assume subsection 18.1(2), rather than a specialized deadline or statutory appeal, applies. Its records show participation in the earlier public hearings and prompt board resolutions authorizing litigation. An acute medical emergency incapacitated the file director; external counsel was retained immediately on reassignment. The 15-day delay is documented. The decision omitted the statutory consideration of cumulative downstream impacts. The proponent’s permits take effect only in six months, and no site preparation has begun. Assess the request to extend time.

Remedies under Section 18.1(3) of the Federal Courts Act

Subsection 18.1(3) permits the court to compel an act unlawfully omitted or refused, or unreasonably delayed, and to declare unlawful, quash, set aside, remit, prohibit or restrain the listed administrative actions. This is a summary of the statutory powers.

Relief is discretionary, but a denial of procedural fairness is not ordinarily excused merely because no different result is proved. Mobil Oil, [1994] 1 S.C.R. 202, illustrates the narrow situation where only one lawful outcome was possible. Other recognized considerations include adequate remedies and the practical utility of relief.

┌────────────────────────────────────────────────────────────────────────┐
│             STATUTORY REMEDIES UNDER SECTION 18.1(3) FCA               │
├──────────────────────────┬─────────────────────────────────────────────┤
│ Paragraph 18.1(3)(a)     │ - Mandatory Order (Mandamus)                │
│ Coercive / Positive      │ - Directs execution of non-discretionary    │
│                          │   duty or cures unreasonable delay          │
├──────────────────────────┼─────────────────────────────────────────────┤
│ Paragraph 18.1(3)(b)     │ - Quashing Order (Certiorari)               │
│ Curative / Preventative  │ - Remittal with directions                  │
│                          │ - Order of Prohibition                      │
│                          │ - Declaratory Judgment                      │
│                          │ - Permanent Injunction                      │
└──────────────────────────┴─────────────────────────────────────────────┘

Quashing and Remittal: The Scope of Certiorari

Under paragraph 18.1(3)(b), the court may set aside an unlawful administrative decision, encompassing the common-law writ of certiorari. The court may quash a decision in whole or in part, severing invalid portions where the remainder can stand independently (Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302).

Remittal is ordinarily appropriate because Parliament entrusted the merits to the administrator. Vavilov, 2019 SCC 65, paras. 139–142, permits declining remittal in limited circumstances, including an inevitable result, and also considers delay, fairness, urgency and efficient use of public resources. It does not give the court a general substitution power.

Any directions must be read with the formal order and reasons. The administrator must comply with the judgment and the legal constraints it establishes; the reasons are not merely optional advice. Whether to use a different panel depends on the defect, fairness and the court’s order, rather than an automatic rule for every unreasonable factual finding.

Compelling Action: Mandamus and Unreasonable Delay

Under paragraph 18.1(3)(a), the court may issue a mandatory order compelling an administrative authority to perform a duty it has unlawfully failed, refused, or unreasonably delayed in executing. This represents the statutory codification of mandamus.

In Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), affirmed [1994] 3 S.C.R. 1100, the Federal Court of Appeal established the governing criteria for mandamus:

1. There must be a public legal duty to act.
2. The duty must be owed to the applicant.
3. The applicant must possess a clear legal right to performance.
4. The applicant must have satisfied all statutory conditions precedent.
5. The applicant must have made a prior demand, allowed a reasonable time for compliance, and met with an express or implied refusal.
6. No adequate alternative remedy must exist.
7. The order must possess practical utility.
8. No equitable bar to relief, and a favourable balance of convenience. These considerations must be applied with the limits on dictating a discretionary outcome.

If the official has a duty to decide but discretion as to the outcome, mandamus ordinarily compels a decision rather than a particular result. An order dictating the result requires an established legal entitlement leaving no lawful choice.

To establish unreasonable delay under paragraph 18.1(3)(a), the applicant must satisfy the three-factor test in Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33: the delay must exceed what the process requires, the applicant must not be responsible for the delay, and the authority must fail to justify the elapsed time.

Restraining Unlawful Action: Order of Prohibition

Under paragraph 18.1(3)(b), the court may issue an order of prohibition to prevent an administrative body from proceeding without jurisdiction.

Unlike certiorari, which cures an existing invalid decision, prohibition is preventative, intervening before a final decision is made (Krause v. Canada, [1999] 2 F.C. 476 (C.A.)).

Prohibition is subject to prematurity and adequate-remedy principles. C.B. Powell, 2010 FCA 61, paras. 31–33, and Halifax, 2012 SCC 10, paras. 35–37, require exceptional circumstances for judicial intervention before the process ends. Merely calling an objection jurisdictional does not create an exception; irreversible prejudice and the capacity of the statutory process must be examined.

Declaratory Relief and Injunctions against Federal Authorities

Paragraph 18.1(3)(b) authorizes declaratory judgments and permanent injunctions against federal boards.

A declaration determines a real legal issue and must have practical utility (Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, paras. 11–12; Solosky, [1980] 1 S.C.R. 821). Unlike an injunction, a declaration does not itself command conduct enforceable by contempt; public authorities are expected to respect the law declared.

A permanent injunction under paragraph 18.1(3)(b) disposes of substantive rights at the conclusion of the judicial review hearing, enjoining illegal action. It must be distinguished from interlocutory injunctions under section 18.2, which provide temporary protection pending the final hearing and can, where justified, require positive action.

Evidentiary Architecture and Tribunal Records

The Record Rule and Exceptions for Natural Justice and Jurisdiction

Judicial review before the Federal Courts is not a trial de novo. The reviewing court assesses whether the decision was reasonable and lawful based on the evidentiary record that was before the decision-maker at the time the decision was made.

Ordinarily the court uses the evidence before the administrator, as explained in Association of Universities and Colleges of Canada v. Access Copyright, 2012 FCA 22, paras. 19–20, and Delios v. Canada (Attorney General), 2015 FCA 117, paras. 41–46. Recognized exceptions include:

1. Evidence of procedural defects not apparent on the administrative record.
2. Non-argumentative background material that helps explain the record without adding merits evidence.
3. Evidence showing the complete absence of evidence for a finding.

These examples are not a licence to introduce new merits evidence by labelling it “jurisdictional.” Evidence about interim relief or standing has its own relevant purpose.

Proof by Affidavit and Cross-Examination under Rule 308

Rules 306–307 govern service of supporting affidavits and exhibits. Rule 316, not Rule 319, permits the court on motion to authorize oral testimony in special circumstances. Rule 319 concerns return of original tribunal material after the hearing.

Rules 80–81 govern affidavit form and personal knowledge. Rule 81 permits statements of belief with grounds on motions other than summary judgment or summary trial; an absolute ban on all hearsay in every motion is inaccurate. Argument is ordinarily addressed in submissions rather than affidavits.

Rule 83 provides for cross-examination of an adverse affiant. Rule 308 sets the ordinary deadline: all cross-examinations must be completed within 20 days after the respondent’s affidavits are filed or the time to file them expires, whichever is earlier. This is not 20 days after receiving the applicant’s affidavits. Rules 84–97 and relevant case-management orders also apply.

The Certified Tribunal Record under Rule 318

Rule 317 permits a party to request identified, relevant material in the tribunal’s possession that the party does not already possess. The applicant may include the request in the notice. This is not a demand for every document held by the institution.

Under Rule 318, within 20 days after service of the request, the tribunal transmits a certified copy to the Registry and the requesting party, or the original to the Registry if it cannot be reproduced. A tribunal or party may object in writing, giving reasons to all parties and the Administrator; the court may give directions and decide production under subrules (3)–(4).

Rules 309(2)(e.1) and 310(2)(c.1) allow relevant material certified and transmitted under Rule 318 to be included in the application records without a separate authenticating affidavit. Ordinary affidavit, cross-examination and record deadlines may be varied by applicable rules or orders.

Interlocutory Relief and Stays under Section 18.2

The Tripartite Standard in Federal Public Law

Filing an application for judicial review does not operate as an automatic stay of the contested decision. An administrative order remains enforceable unless the court orders otherwise.

Section 18.2 permits interlocutory relief through appropriate interim orders pending final determination of judicial review.

The court applies the tripartite framework from Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 and RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:

1. Serious Question to Be Tried: A preliminary showing that the application is neither frivolous nor vexatious.
2. Irreparable Harm: Clear evidence that the applicant will suffer non-compensable harm if relief is refused.
3. Balance of Convenience: An assessment determining which party will suffer greater prejudice, informed by the public interest.

Irreparable Harm and the Public Interest Presumption

A serious question is the ordinary first-stage threshold. A mandatory interlocutory injunction generally requires a strong prima facie case (R. v. Canadian Broadcasting Corp., 2018 SCC 5, paras. 15–18). The underlying application’s prospects matter, but Newbould, 2017 FCA 106, warns against treating prematurity as a separate threshold that prevents applying the injunction test.

Irreparable harm concerns the nature of the injury and whether it can effectively be repaired:

• Financial harm can qualify where damages will not provide an effective remedy; insolvency is an example, not the only possible exception.
• The evidence must support a real risk of non-compensable harm; speculation is insufficient. Depending on the interest involved, a sound inference from the surrounding facts can establish harm.
• Ordinary costs and inconvenience generally do not suffice. Newbould v. Canada (Attorney General), 2017 FCA 106, [2018] 1 F.C.R. 590, requires something beyond the ordinary reputational risk inherent in the inquiry at issue; it also permits proof of reputational harm by inference.

Public authorities may rely on the public interest in carrying out their statutory mandate (RJR-MacDonald, pp. 346–349). The court still weighs the evidence and consequences; neither every administrative decision nor every enforcement measure automatically prevails over private harm.

Worked example: Motion for a Stay of a Federal Regulatory Suspension

Factual Scenario

In this hypothetical, a packaging facility faces an emergency federal suspension. Assume section 18 review is available and the statute permits emergency suspension only for the specific risk alleged. The regulator invoked imminent health hazards despite laboratory reports confirming zero pathogen contamination. Uncontradicted accounting evidence shows that a 14-day shutdown would cause spoilage, supermarket contract cancellations, banking default and bankruptcy. The facility offers an independent certified auditor to inspect and clear every outbound shipment; assume the evidence establishes that this arrangement protects public safety. Assess the requested interim stay.

Appeals to the Federal Court of Appeal

Appeal as of Right under Section 27

The ordinary section 27 route is an appeal as of right from a final judgment under paragraph 27(1)(a) or an interlocutory judgment under paragraph 27(1)(c). There is no paragraph 27(1)(c.1). Specialized statutes can require leave or exclude appeal.

Subsection 27(2) requires filing the notice of appeal:

• Within 10 days after pronouncement of an interlocutory judgment.
• In other cases, within 30 days, excluding days in July and August, after pronouncement.

A Federal Court of Appeal judge may extend either period before or after expiry; subsection 27(3) requires prompt service. Section 52(b) authorizes dismissal, the judgment that should have been given, or a new trial where applicable.

The Standard of Review on Appeal: The Agraira Principle

When the Federal Court of Appeal reviews a judgment of the Federal Court in a judicial review matter, it acts as a second-tier reviewing court.

Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, paras. 45–47, directs the appellate court to determine whether the reviewing judge chose and applied the correct standard.

The appellate court steps into the shoes of the Federal Court judge:

• If the administrative decision was reviewed for reasonableness under Vavilov, the appellate court conducts its own reasonableness review of the administrative decision, owing no deference to the Federal Court judge's reasons.
• Where the Federal Court judge made primary factual findings on fresh evidence admitted under an exception to the record rule, those findings are reviewed for palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33).

Statutory Leave Requirements and the Certified Question Mechanism

IRPA section 72 requires leave, subject to section 86.1, exhaustion of statutory appeals, and its own filing and service periods: ordinarily 15 days for a matter arising in Canada or 60 days outside Canada, with extensions for special reasons. Paragraph 72(2)(e) excludes appeals from leave decisions and interlocutory judgments.

Under paragraph 74(d), an appeal from the merits judgment ordinarily requires the judge to certify and state a serious question of general importance. Certification is a jurisdictional gateway, not a substitute for an arguable appeal or a general fact rehearing. An appeal involving a validly certified question is not confined to answering only that question (Pushpanathan, [1998] 1 S.C.R. 982, para. 25). Narrow jurisprudential exceptions to statutory appeal bars require separate authority; they are not assumed here.

Practice Checklist

Commencing the Judicial Review Application (Applicant)

• Confirm Federal Board Jurisdiction: Verify that the decision-maker derives authority from federal statute or royal prerogative and exercises public power under section 2 of the Federal Courts Act.
• Determine the route: Check sections 18, 18.5 and 28 and any specialized appeal, leave requirement or exclusion.
• Calculate the actual deadline: Apply the relevant communication/knowledge trigger. Section 18.1(2)’s ordinary 30-day filing period differs from IRPA’s filing-and-service periods. If late, seek the appropriate extension.
• Draft and serve: Under Rule 301, identify parties, tribunal, decision, grounds, relief and evidence. Rule 304 ordinarily requires service within 10 days after issuance on all specified recipients, including the tribunal, other participants and the Attorney General as applicable.
• Name respondents: Apply Rule 303(1)–(2); note the court-ordered substitution mechanism in subrule (3).
• Request relevant missing material: Use Rules 317–318; identify what is needed rather than demanding the entire institutional archive.
• Check constitutional notice: Federal Courts Act section 57 ordinarily requires notice to Canada’s and each province’s Attorney General at least 10 days before argument, unless otherwise ordered.
• Seek interim relief if needed: Substantiate the applicable test under section 18.2.

Defending the Administrative Decision (Respondent / Attorney General)

• Consider preliminary objections: Jurisdiction, timeliness, standing, prematurity and adequate remedies require their own factual and legal basis.
• Respect the timetable: Rule 305 appearance: 10 days after service; Rule 306 applicant affidavits: 30 days after issuance; Rule 307 respondent affidavits: 30 days after service of applicant affidavits. Check orders and specialized rules.
• Transmit or object to the record request: Rule 318 transmission is ordinarily within 20 days of service of the request.
• Complete cross-examinations: Rule 308’s 20 days run from filing of respondent affidavits or expiry of that filing time, whichever is earlier.
• Oppose Interlocutory Stay Motions: Submit affidavit evidence establishing absence of irreparable harm and rely on the public interest presumption.
• Prepare application records: Rule 309 applicant record: 20 days after completion or expiry of cross-examinations, whichever is earlier. Rule 310 respondent record: 20 days after service of the applicant’s record.