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Judicial Review - Statutory Powers of Decision
MORE CASES
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. National Car Rental Inc. et al. v Municipal Property Assessment Corp. et al.
In National Car Rental Inc. et al. v Municipal Property Assessment Corp. et al. (Div Court, 2023) the Divisional Court, in a case that centers on JR prematurity and adequate alternative remedy, succinctly states the limited role of JR in the tribunal (statutory power of decision) context:[46] The focus of judicial review is whether the administrative process proceeded in a manner that permitted the issues to be raised and an effective remedy to be granted. On this ground, I find no basis for judicial review because the matter can now proceed to a full hearing before the ARB. Should the ARB find there to be a legal basis for events subsequent to January 1, 2016 to be factored into an analysis of the January 1, 2016 valuation date, further steps can be taken. . Ye v Toronto District School Board
In Ye v Toronto District School Board (Div Court, 2023) the Divisional Court considers (and denies) whether a school attendence decision regarding a specific school meets the definition of "statutory power of decision":[29] The TDSB further submits that this Court lacks jurisdiction to hear the application for judicial review because the Applicant seeks declaratory and injunctive relief, as excerpted from the Application above.
[30] Pursuant to s. 2(1)2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), where an applicant seeks declaratory or injunctive relief, such relief can only be granted in respect of the exercise or refusal to exercise a “statutory power”. A “statutory power” means a power or right conferred by or under a statute:(a) make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or refrain from doing any act or thing that, but for such requirement such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.
JPRA, s. 1. [31] A “statutory power of decision” is defined, in part, as a power or right conferred by or under a statute to make a decision prescribing the legal rights, powers, privileges, duties or liabilities of any person or party or the eligibility of any person or party to receive a benefit or licence. For s. 2(1)2 to apply, there must be a direct statutory authority to make the specific decision being challenged: Paine v. University of Toronto (1981), 1981 CanLII 1921, 34 O.R. (2d) 770; Sprague v. Ontario, 2020 ONSC 2335 (Div. Ct.), at para. 20.
[32] As noted above, the Applicant does not seek review of a particular decision, let alone a decision made pursuant to the exercise of a statutory power. Because there was no exercise of a statutory power of decision, judicial review under s. 2(1)2 is not available and the Court cannot grant the declaratory relief sought by the Applicant: Association of Professors of the University of Ottawa v. University of Ottawa, 2018 ONSC 1191, at paras. 4-6.
[33] The student interest programs and the Policy setting out the admission process are not the product of the exercise of a statutory power of decision. Under s. 171(7) of the Education Act, the TDSB has a broad mandate to “determine the number and kind of schools to be established and maintained and the attendance area for each school… in accordance with policies established by the board from guidelines issued by the Minister[.]” Under s. 169.1(1)(3) of the Education Act, the TDSB is also empowered to “develop and maintain policies and organizational structures that” promote the goals referred to in the Act and encourage pupils to pursue their educational goals. There is no provision in the Act that gives the board the authority to offer student interest programs, that requires that the board to offer such programs or that prescribes a manner in which such programs are to be offered.
[34] The Applicant relies on s. 5(1) of the JRPA, which establishes the timeline within which an application for judicial review must be brought, to argue that judicial review is available for a “matter” and not just a decision. Under s. 2(1)2, however, the relief sought by the Applicant is only available where there is an exercise of a statutory power. As discussed above, the Application does not involve a statutory power of decision and does not otherwise satisfy the definition of the exercise of a statutory power.
[35] The Applicant submits that the TDSB can only act if a specific provision in the Education Act allows it to take action. If the Applicant’s position were correct, and a statutory power to act were required, the TDSB would not be able to offer student interest programs. The Applicant further relies on ss. 39-41 of the Act to argue that only the principal of a school has authority to accept students to a school and seeks to have that “right” restored. This is an incorrect reading of those provisions, which do not grant principals sole authority to admit out of district students to secondary schools.
[36] This court has repeatedly held that “attendance of children at a particular school is not a legal right, benefit or licence. No pupil, therefore, has ‘any vested interest’ in any single school.”: Jackson v. Toronto Catholic School Board, 2006 CanLII 23951 (Div. Ct.), at para. 68. In Chang McLean v. Toronto District School Board, 2021 ONSC 6151 (Div. Ct.), this court found that it was settled law that a student has a legal right to attend a school in section or district where they reside but not a school of their choice. In that case, the reallocation of French immersion programs was found not to affect the rights or privileges of students. As a result, the court had no jurisdiction over the reasonableness of the decision.
[37] In respect of the By-law, under s. 58.5(1) of the Education Act, the TDSB is a corporation with all the powers that are conferred or imposed on it under the Act or any other statute. The TDSB is entitled to pass by-laws that govern the conduct of Board and committee meetings, including restrictions on the ability to reconsider past decisions. The By-law that the Applicant seeks to challenge does not affect his rights, interests, or privileges.
[38] Based on the foregoing analysis, the application is not amenable to judicial review. I find that it is plain and obvious that the Application cannot succeed. As a result, I find it unnecessary to consider the TDSB’s submissions regarding the issues of delay and justiciability. . Leahy v. Canada (Justice)
In Leahy v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal considered whether a court could be subject to a judicial review (here the Supreme Court of Canada):[1] This is an appeal of an order of the Federal Court (2021 FC 302, per Furlanetto J.). In that decision, Furlanetto J. granted the respondent’s motion to strike the appellant’s judicial review application of a decision of the Registrar of the Supreme Court of Canada (the Registrar). Under subsection 73(4) of the Rules of the Supreme Court of Canada, S.O.R./2002-156 (the Rules), the Registrar had refused the appellant’s motion for reconsideration of the Supreme Court’s decision to dismiss his motion for leave to appeal from a decision of this Court.
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[8] The Supreme Court is not a federal board, commission or tribunal within the meaning of section 18.1 of the Federal Courts Act. To hold that the Federal Court could compel the Supreme Court to hear a motion for reconsideration would offend the principle that courts control their own processes, which is in turn an element of the unwritten constitutional principle of judicial independence. Further, if the Federal Court could judicially review a decision or order of the Supreme Court, that decision itself would be subject to appeal to the Supreme Court (Scheuneman at para. 11; Sydel at paras. 56-58). The absurdity of the proposition is self-evident.
[9] The appellant argues that the Registrar is not a judge, and cannot therefore decide matters that bear on appeals to the Supreme Court. He further argues that, as applications for leave to appeal are considered by a panel of three judges of the Supreme Court, the same procedure must apply to his motion for reconsideration. I disagree with both of these arguments.
[10] Section 18 of the Supreme Court Act, R.S.C. 1985, c. S-26 authorizes the Registrar to exercise any jurisdiction of a judge sitting in chambers as may be conferred by general rules or orders made under that Act, and subsection 73(4) of the Rules specifically allows the Registrar to refuse to accept a motion for reconsideration. Lest there be any doubt on the point, section 12 of the Rules provides that every order of the Registrar shall be binding on the parties "“as if the order had been made by a judge.”" . Patel v. The Law Society of Ontario
In Patel v. The Law Society of Ontario (Div Court, 2022) the Divisional Court considered whether decisions of the Intake and Resolution Counsel (I&R Counsel) of the Law Society constituted 'statutory powers of decision', this in order to determine whether JRPA s.10 ['Record to be filed in court'] thus applied to require the LSO to file their decision-making record in a JR application. The court held that the I&R Counsel's involvement was investigative (as per LSA 49.3 "Investigations - Conduct"), and the dismissal of an investigate proceeding did not constitute the "exercise of a statutory power of decision" as it effected no rights [JRPA 1]:[5] Section 10 of the JRPA requires that a record of proceedings be filed with the court “when notice of application for judicial review of a decision made in the exercise of a statutory power of decision is served on the person making the decision.” A statutory power of decision is defined as a power or right conferred by or under a statute to make a decision deciding or prescribing:1. The legal rights powers, privileges, immunities, duties or liabilities of any person or party, or
2. The eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not. [6] Under the Law Society Act, the LSO has the discretion to decide whether to investigate a complaint. Subsection 49.3(1) of the Act provides that the LSO “may” investigate when it receives information suggesting that licensee may have engaged in professional misconduct or conduct unbecoming.
[7] Where there is a discretion to investigate, courts have held that the decision to dismiss a complaint is not the exercise of a statutory power of decision: Batacharya v. College of Midwives of Ontario, 2012, ONSC 1072 (Div. Ct.); Harrison v. Association of Professional Engineers of Ontario, 2014 ONSC 6549 (Sup. Ct.), at paras. 17-18. The language of the Law Society Act is similar to the language in the provisions at issue in those cases under the Health Professions Procedural Code and the Professional Engineers Act respectively. This differs from the circumstances in Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, where the complainant had a right under the Police Services Act to have her complaint proceed. In that case, the decision to screen out the complaint was found to be an exercise of a statutory power of decision and a record of proceedings was required. Unlike the Police Services Act, the Law Society Act does not require that every complaint be pursued, rather, it gives the LSO discretion to determine whether to investigate a complaint.
[8] In the absence of the exercise of a statutory power of decision, the court does not have inherent jurisdiction to order production of a record of proceedings: Harrison, at paras. 27-37.
[9] In my view, for the purposes of the motion, the decision of I&R Counsel did not affect the Applicant’s legal right. Therefore, the decision of I&R Counsel to close his complaints was not the exercise of a statutory power of decision. As a result, s. 10 of the JRPA does not apply, and the LSO does not have a duty to file a record of proceedings. . Sui v. Ontario
In Sui v. Ontario (Div Court, 2022) the Divisional Court clarifies the nature of a 'statutory power' as distinct from a 'statutory power of decision':[2] Mr Sui did not address the jurisdiction of the OCJ, or a court hearing an appeal from the OCJ. Instead, he argued that the public service member exercised a "statutory power of decision" in refusing to provide a certificate for the recording furnished for preparation of a transcript by a certified transcriptionist.
[3] Mr Sui is in error in this argument. Statutory authority is not the same thing as a statutory power of decision. All manner of tasks, from the important to the mundane, are performed by the public service pursuant to direct or indirect grants of statutory authority; only a small subset of them rise to the level of being a "statutory power of decision." Providing a recording of a court proceeding - with or without a certificate - is a matter of day-to-day public administration and is not exercise of a statutory power of decision. . Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario
In Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario (Div Ct, 2020) the Divisional Court usefully clarified it's role in a judicial review application. The Travel Industry Council of Ontario [a statutory body under the Travel Industry Act (TIA)] had written to a business that it was in violation of the Act and requiring that it register as a travel agent. The business opposed this position and moved by judicial review before the Divisional Court to (1) set aside the TICO 'decision' and for (2) a declaration that it had not violated the TIA.
On the first request the court held that no decision susceptible to the JRPA had occured as TICO had not either exercised a "statutory power of decision" nor proposed to exercise it, pursuant to JRPA 2(1)2 and related definitions:[17] Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1., sets out the Divisional Court’s jurisdiction on an application for judicial review as follows:2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. [18] Section 1 of the Judicial Review Procedure Act defines “statutory power” as “a power or right conferred by or under a statute” which includes the power “to exercise a statutory power of decision”.
[19] “Statutory power of decision” is defined as follows:“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not, TICO only had the relevant authority to either apply the Superior Court for an injunction against the business' behaviour, or to prosecute under the TIA offence provisions.
Secondly, on the declaration request, the Divisional Court was a statutory court whose application jurisdiction was limited by the JRPA. Not having a 'statutory power' to deal with, the remedy of the applicant lay under the application authority of R14.05(3)(d) of the Rules of Civil Procedure in the Superior Court:R14.05 (3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
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(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution; . Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board
In Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board (Div Ct, 2022) the Divisional Court considered when judicial review was available where a government board only issued 'recommendations':[51] I agree with the Minister that the PSA gives the Board no power to make a decision and that it confines the Board’s duties to making recommendations to the Minister. Under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to grant relief in relation to decisions, not recommendations. Thus, the recommendations of the Board are not reviewable.
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