Judicial Review of a Board Decision
Board decisions are final and can only be changed in limited circumstances. If you believe the Board’s decision is unreasonable, you can file an Application for Judicial Review with the Federal Court of Appeal. If you believe the Board made a serious mistake and should correct its original decision, you can ask it to reconsider its decision. This type of application is called an Application for Reconsideration. Information on how to file an Application for Reconsideration can be found here.
The following chart compares the two types of applications:
| Application for Reconsideration | Application for Judicial Review | |
|---|---|---|
| Filing location |
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| Deadline for filing |
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| How it will be handled |
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| Respondent |
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This page answers questions regarding the process for asking the Federal Court of Appeal to review the Board’s decision, including how you apply for judicial review, the deadline for filing the application, and what you need to prove.
Who can ask the court to review a decision of the Board?
Both the complainant (who is sometimes called an applicant, depending on the type of matter filed with the Board) and the respondent can ask the Federal Court of Appeal to review the Board’s decision and file an Application for Judicial Review. Persons or organizations who have been given intervenor status cannot ask the Court to review the Board’s decision.
How much time do I have to ask the court to review a Board Decision?
You have 30 calendar days from the date that you received the Board’s decision (the date on the decision) to file an Application for Judicial Review with the Federal Court of Appeal.
How do I file an Application for Judicial Review?
Applications are filed with the Federal Court of Appeal by filling out a form called “Form 301–Notice of Application” and filing it with the Court. You can find the form on the Court’s website under the tab “Legislation, Rules and Practice Directions” and by then clicking on “Rules and Forms.” You will then need to follow the instructions in the form and file the completed form with the Court and then serve it on the respondent.
If you need help, contact the Registrar of the Court. On the Court’s home page, click on the tab “Self-Represented Litigants” and then “Registry.” There, you will find the addresses and telephone numbers of the Court’s Registry offices across Canada.
What do I need to prove to the court to be successful?
The Federal Court of Appeal will look at the Board’s decision to see whether it was reasonable.
The Court will normally accept the facts as the Board found them, and it will ask itself whether, given the facts and the arguments that were presented by the parties to the Board, the Board’s decision was reasonable. The Court will respect the Board’s expertise in the areas in which it makes decisions.
The Court will also look at whether the reasons that the Board gave for reaching its decision were rational and allowed the parties to understand why the Board found as it did.
In some cases, the Court will assess whether the Board’s conclusions were correct. This is the case when the Board determines whether it has jurisdiction to hear a matter that is before it.
The Court will also consider whether the Board allowed the parties a fair opportunity to present their case and respond to the case against them. If the Court finds that the Board has not done that, it may return the matter to the Board to be re-heard.
IMPORTANT: In order to be successful, you must convince the Court that the Board’s decision was unreasonable or that the Board did not allow you a fair opportunity to argue your case. It is insufficient to simply argue that the Board’s decision was wrong and re-state the case that you made before the Board.
What can the court order?
The Federal Court of Appeal can agree with the Board’s decision, agree with part of the Board’s decision, or not agree with the Board’s decision. If it does not agree with the Board’s decision, it usually sends the matter back to the Board to be re-decided.
The Court can also order the unsuccessful party to pay some of the costs of the successful party in bringing or defending the Application for Judicial Review.
What happens to the Board’s decision while the Application for Review is before the court?
Until a decision is issued by the Federal Court of Appeal, the Board’s decision stands. That means that any orders given by the Board in its decision are still in effect and must be followed. In some circumstances, you can ask the Court to “stay” the Board’s decision while the Court considers the application. However, this type of order is difficult to obtain.
How do I get help?
Judicial Review Applications and arguments are complicated. You may wish to seek legal advice before proceeding.
You can access the Federal Court of Appeal’s contact information on its website here.
You can contact the Court at its principal office in Ottawa at 1-800-565-0541 or TDD 613-995-4640 or at any of its regional offices across Canada.