The Uneasy Coexistence of Rights of Appeal and Applications for Judicial Review

Presenté par la section des juges
vendredi 22 mai 2026 | 12 h - 13:30 h  HE

A difficult issue that has come to the forefront since the Supreme Court of Canada’s reformulation of administrative law in Vavilov is the co-existence of rights of appeal and applications for judicial review in respect of the same administrative decisions. Many administrative regimes federally and provincially provide for limited rights of appeal, for instance on questions of “law” or “jurisdiction”. Under Vavilov, however, applicants may wish to challenge, by way of an application for judicial review, factual findings or applications of law to fact that do not fall within the definition of “law” or “jurisdiction”. Vavilov suggests that they can do so, prompting many questions:

• What are the differences – if any – between the questions that can be raised on a limited right of appeal and those that can be raised on judicial review?
• Do privative clauses have a role to play in blocking or streamlining access to the courts?
• How should courts and litigants proceed if a right of appeal is to the Court of Appeal but an application for judicial review is heard in Superior Court?

Since Vavilov, courts across Canada have been grappling with these questions. In Yatar, the Supreme Court clarified that it is not proper to deny an application for judicial review in the exercise of judicial discretion even where there is a right of appeal, but left other issues to be resolved another day.

This webinar will explore the current confusion, put the issue in its historical and constitutional context, and offer some practical solutions to judges pending further guidance from the Supreme Court.

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