The Federal Court of Canada hears cases that involve federal law. This includes reviewing decisions made by federal boards, commissions and tribunals and determining whether they were unreasonable, unfair or made in error.
First Stage: Obtaining Leave of Court
Step 1: The Application for Leave and for Judicial Review
The process of appealing an immigration matter to the Federal Court begins with the application for leave and for judicial review. This means that the person affected must first obtain permission (leave) for a judge of the Federal Court before the matter can be heard. This process starts with serving an application for leave and for judicial review on the other party and filing it with the Court registry within 15 days (if a matter arose in Canada) OR 60 days (if a matter arose outside Canada) after the day on which the applicant is notified or becomes aware of the decision or matter to be reviewed. This is accompanied by paying the filing fee and followed by filing proof of service within 10 days after the application is served.
Step 2: Obtain Tribunal’s Decisions and Reasons
Sometimes, the application does not include the written reasons of the tribunal. In such situations, the registry will send a request to the tribunal or decision maker to obtain decisions and reasons.
Step 3: Preparing the Applicant’s Record
The person applying for judicial review (Applicant) must file a record within 30 days from the day of filing the application if the Applicant confirmed having received the tribunal’s written reasons for the decision OR if the Applicant received the tribunal’s notice that no reasons are available. The Applicant’s Record will include:
- The application for leave;
- The tribunal’s decision or reasons;
- The written reasons of the tribunal or the notice of no reasons available;
- Affidavits verifying the facts relied on by the applicant in support of the application;
- A memorandum or argument that includes written submissions of facts and law that the applicant relies on for the request of relief (or order) that the court should grant;
- A statement indicating the language of the hearing and language for the materials of the hearing
Step 4: Receiving the Respondent’s Affidavits and Memorandum of Arguments
The respondent (the other party in the proceedings) has 30 days from the date of service of the Applicant’s Record to file their side’s affidavits and memorandum of arguments with proof that they have been served on all other parties.
Step 5: Reply Memorandum
After receiving the respondent’s memorandum and affidavits, the Applicant has a chance to file a memorandum of argument in reply within 10 days.
Step 6: Disposition of Application for Leave
At this stage, the Court will decide whether to grant leave (or permission) to the applicant to present the case before the court at a hearing. This will be determined by the Court in writing without the need for any party to appear personally. If the court decides NOT to grant leave, then the matter is concluded. There is no right to appeal a decision made by the Court on an application for leave.
Second Stage: Leave Granted
Step 1: The Tribunal’s Record
If leave is granted by the Court, the Court will issue an “order granting leave” which will include the date, time, place and language of the judicial review application. When the order granting leave is received by the parties, the Tribunal will send certified copies of its records to the parties and to the registry. This record includes:
- The decision or order along with written reasons;
- All documents relevant to the matter that the Tribunal has in its records;
- Any affidavits or other documents during the Tribunal’s hearings; and
- A transcript of oral testimony giving during the Tribunal’s hearings.
Step 2: Judicial Review Hearing
The hearing must be scheduled no sooner than 30 days and no later than 90 days after leave was granted, unless otherwise agreed to by the parties. At the hearing, the parties are given an opportunity to present their case through oral submissions. At the conclusion of the hearing, the reviewing judge may deliver the judgment or may reserve judgement for a later date.
If the Federal Court grants the applicant’s judicial review application, it may refer the case back to the tribunal for re-consideration. Otherwise, the original decision stands. If the parties are in agreement with the decision, this usually ends the judicial review process. If one party would like to appeal the decision, then they may apply for leave to the Federal Court of Appeal.
