Must the Show Go On? Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139
In several recent decisions, the Federal Court of Appeal has set out a general framework for conducting judicial reviews of administrative action. Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 is an example. Stratas J.A. noted that there are “three distinct analytical steps” in any judicial review:
(1) Preliminary objections. Are there any recognized reasons why the judicial review or any issues in it should not be heard? For example, the matter may be moot, the matter may not be sufficiently public in nature to be reviewable, the Court may not have statutory jurisdiction over the matter or the relief sought, the basis for the review was not raised below but should have been, the judicial review may be premature, other forums may exist in which the applicant may obtain adequate and effective relief, or the applicant is impermissibly relitigating an issue that has been previously decided. This is not a complete list.
(2) The merits of the judicial review. Bearing in mind the standard of review, are substantive or procedural grounds for review of an administrative decision triggered? In the case of other matters that may properly form the subject of judicial review under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, is there a basis upon which a remedial response—e.g., declarations, prohibition orders, orders for mandamus or procedendo—would be warranted?
(3) Remedies. What remedies are legally available in the circumstances of the case? Here, it must be remembered that remedies are discretionary. Thus, the Court must consider whether to exercise its discretion in favour of a remedy, and if so, what sort of remedy and on what terms, if any? (at para. 28)
These preliminary objections are “show stoppers”: “Where they are well-founded and the reviewing court cannot hear some or all of the issues placed before it, those issues are finished” (at para. 29). In general, it will be inappropriate for the reviewing court to delve into the merits despite a well-stated preliminary objection.
But, of course, sometimes these preliminary objections cannot be addressed definitively early in the proceedings. For instance, it may be difficult to know whether an alternative remedy is adequate or not without a full appreciation of the merits of the case. This may be why Stratas J.A. also suggested “it might be wise” in some circumstances to proceed even where a preliminary objection has been raised (at para. 30). Accordingly, it seems sensible to treat this analytical framework as solid but not rigid. As long as one allows for the possibility of overlap between the categories, the framework is a useful way of conceptualizing the task of judicial review.
In this case, Stratas J.A. was able to determine definitively that alternative avenues of relief exist for the applicant, who alleged he had been left stateless, to become a citizen of either India or Canada (at paras. 46-55).
This content has been updated on July 8, 2015 at 08:31.