Writ of Mandamus: Difference between revisions
No edit summary Tag: wikieditor |
No edit summary Tag: wikieditor |
||
| Line 1: | Line 1: | ||
{{LevelZero}}{{HeaderPreTrial}} | |||
{{seealso|Judicial Review of Parole Ineligibility for Murder}} | |||
==General Principles== | ==General Principles== | ||
{{seealso|Mandamus, Certiorari, and Prohibition}} | {{seealso|Mandamus, Certiorari, and Prohibition|Writ of Certiorari}} | ||
An order of ''mandamus'' (latin for "we command") is a common law "prerogative writ" power of a superior court to order a lower court or government agent to perform a mandatory duty correctly.<ref> | An order of ''mandamus'' (latin for "we command") is a common law "prerogative writ" power of a superior court to order a lower court or government agent to perform a mandatory duty correctly.<ref> | ||
{{CanLIIRP|MPS|fwsfs|2013 BCSC 525 (CanLII)|298 CCC (3d) 458}}{{perBCSC|Romilly J}} ("Mandamus, ... is the name of the prerogative writ that issues from a court of superior jurisdiction to the inferior tribunal commanding the latter to exercise its jurisdiction.") | {{CanLIIRP|MPS|fwsfs|2013 BCSC 525 (CanLII)|298 CCC (3d) 458}}{{perBCSC|Romilly J}} ("Mandamus, ... is the name of the prerogative writ that issues from a court of superior jurisdiction to the inferior tribunal commanding the latter to exercise its jurisdiction.") | ||
Revision as of 13:50, 27 July 2023
- < Procedure and Practice
- < Pre-Trial and Trial Matters
General Principles
An order of mandamus (latin for "we command") is a common law "prerogative writ" power of a superior court to order a lower court or government agent to perform a mandatory duty correctly.[1]
It is a discretionary remedy to compel a lower court to exercise jurisdiction where it has incorrectly refused to do so.[2]
The order is only available where the body refuses to exercise its jurisdiction.[3]
A prerogative writ is a manner of correcting errors of jurisdiction made by inferior courts as well as correcting failures of natural justice or procedural fairness.[4]
Mandamus is available where an inferior judicial body "has either failed or wrongly exercised its jurisdiction such that there has been a jurisdictional error... If [the judicial body] erroneously refuses to act on the grounds that it lacks territorial or legal jurisdiction, mandamus will lie to compel it to accept jurisdiction."[5]
- Where Review is Unavailable
When the duty is of a "judicial nature", mandamus is not available regardless of whether the decision was incorrect. No superior court can change that decision except for exceptional circumstances such as prejudice, bias, personal interest, dishonesty, and the like.[6]
- Discretion to Refuse
Despite having jurisdiction, a superior court can refuse prerogative relief if there is an equally effective alternative remedy.[7]
- ↑ R v MPS, 2013 BCSC 525 (CanLII), 298 CCC (3d) 458, per Romilly J ("Mandamus, ... is the name of the prerogative writ that issues from a court of superior jurisdiction to the inferior tribunal commanding the latter to exercise its jurisdiction.")
- ↑ R v MacDonald, 2007 NSSC 255 (CanLII), 225 CCC (3d) 1, per Murphy J, at para 17
- ↑ R v Faber, 1987 CanLII 6849 (QC CS), 38 CCC (3d) 49, per Boilard J, at p. 54
- ↑ R v Forsythe, 1980 CanLII 15 (SCC), [1980] 2 SCR 268, 53 CCC (2d) 225, per Laskin CJ
- ↑ MPS, supra, at para 10
- ↑ R v Coughlan, 1969 CanLII 949 (AB QB), [1970] 3 CCC 61 (Alta. T.D.), per Riley J, at p. 72 ("The law respecting the same has been well established over the years and can be summarized on the basis that any inferior Court or board or person may be required to perform his duty if he refuses to do so but, if the duty is performed in any matter judicial in nature, certiorari and/or mandamus will not lie regardless of whether an incorrect decision is reached, and no superior Court can reverse or alter any decision or direct the inferior Court to come to a different decision, save in such exceptional circumstances as prejudice, bias, personal interest, dishonesty or the like. ")
- ↑ Harelkin v University of Regina, 1979 CanLII 18 (SCC), [1979] 2 SCR 561, per Beetz J, at p. 588