Where a government body, such as CRA or the Social Security Tribunal, makes any decision, the person in respect of whom that decision was made has the right to request a judicial review, typically by the Federal Court. The Court’s role is to review whether the decision was reasonable based on relevant information but not to substitute its own decision for that of the government body. Recent examples of decisions subjected to judicial reviews include the following:

• refusal to waive taxes on excess TFSA or RRSP contributions (see VTN 458(11) and 455(9) for examples);
• refusal to waive penalties and interest (see VTN 458(10) and 457(8) for examples);
• denial of EI benefits (see VTN 458(3) for one example);
• challenging a CRA determination of an organization’s status where no assessment has been issued (see VTN 454(9) for an example);
• refusal to process a requested adjustment to a tax return (see VTN 457(8) and 453(7) for examples, even past the usual statute-barred date); and
• rejection of late elections (see VTN 456(8) for one example).

this tight timeline

Applications for a judicial review should be provided to the Federal Court within 30 days after decision is communicated to the taxpayer (although the Court does have the ability to grant extensions).

An October 16, 2019 Federal Court of Appeal case (Gittens vs. Attorney General of Canada, A-314-18) provided a summary of the role of the courts in conducting a Judicial Review, including the following points:

• The Court is required to provide deference – some respect and some leeway – to the decision maker. The Court’s task is to ensure the decision maker had some basis in evidence to arrive at the decision made.

the limits on the powers of the Court in a judicial review

• The Court is not allowed to make its own findings based on a review of the evidence, or to second-guess the decision maker, or redo their job.
• Where procedural fairness has been observed, and the decision reached is substantively reasonable – that is, it is defensible based on the facts and the law – the Court cannot interfere. It can only interfere in cases where procedural unfairness and/or a substantive error makes the decision indefensible and unacceptable.

ensuring all relevant information is provided to the appropriate body in requesting any decision

• The Court cannot consider fresh evidence – its review must be based solely on the evidence available to the original decision maker.