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JR - Charter-Constitutional. Apitipi Anicinapek Nation v. Ontario [IMPORTANT re constitutional Divisional Court jurisdiction] [venue]
In Apitipi Anicinapek Nation v. Ontario (Ont Div Ct, 2025) the Ontario Divisional Court allowed a Crown motion, here seeking "to quash part of the underlying application for judicial review for lack of jurisdiction".
The court considers whether it (as the Divisional Court in a JR) has jurisdiction to consider a Constitution Act s.52(1) declaration remedy, here in an indigenous context:[15] The moving parties therefore move to strike out those parts of the notice of application for judicial review that seek relief under s. 52 of the Constitution Act, 1982, as set out in the notice of motion, and the related notice of constitutional question. The AAN disagrees, submitting that the Divisional Court has jurisdiction.
[16] The substantive jurisdiction of the Divisional Court is statutory. It is a court of review. It has statutory appellate jurisdiction as set out in the Courts of Justice Act, R.S.O. 1990, c. C.43 (the CJA) and other statutes, which is not at issue here. Its jurisdiction on applications for judicial review, which is at issue here, is found in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the JRPA).
[17] Contrary to the AAN’s submissions, the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge. Nor does r. 14.05 of the Rules of Civil Procedure expand the Court’s substantive jurisdiction on an application for judicial review: J.N. v. Durham Regional Police Service, 2012 ONCA 428, at para. 16.
[18] Section 2 of the JRPA sets out this Court’s jurisdiction for an application for judicial review. It is limited to applications for an order “in the nature of mandamus, prohibition or certiorari”, and other proceedings for a declaration or injunction “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”. The Constitutional Challenge put forward in this application for judicial review does not fall within this jurisdiction.
[19] The JRPA defines “statutory power” and “statutory power of decision” in s. 1. The closest the Constitutional Challenge comes to falling within that definition is the general reference to regulations as part of the LARIA “Regime”. However, the application for judicial review does not assert that any regulation made under LARIA is unauthorized or invalid. The AAN is concerned about the absence of a statutory power to proceed with its proposal to the MNR under LARIA. The AAN seeks an order that the LARIA Regime be amended within one year after the requested s. 52 declaration to provide for the duty to consult under s. 35 to be triggered and met.
[20] With respect to s. 35 of the Constitution Act, 1982, legislation and the exercise of statutory powers must comply with s. 35. However, s. 35 is not itself a statutory power under the JRPA: Whiteduck v. Ontario, 2023 ONCA 543, para. 60; JRPA, s. 1; Legislation Act, 2006, S.O. 2006, c. 21, Sch F, s. 87.
[21] Further, the legislative process at large is not the exercise of a statutory power: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at paras. 2, 18, 33, 38, per Karakatsanis J; Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161 (Div. Ct.), at para. 38.
[22] Nor is this a question of which procedure is preferrable. “Once jurisdiction is determined, then the procedure to be followed is the procedure prescribed in the forum with jurisdiction”: Alford v. Law Society of Upper Canada, 2018 ONSC 4269, at para. 45.
[23] The AAN further submits that this Court may hear the Constitutional Challenge because it is ancillary to the judicial review of the Decision. Most germane are two decisions of this Court: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 and Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708.
[24] In Mississauga First Nation, at para. 54, the Court found that a constitutional challenge to amendments to legislation was ancillary to and dependent on the determination of the duty to consult in a judicial review application. However, in that case, the Court found that there was a refusal to exercise a statutory power, based on an unreasonable delay of about three years in addressing the application for judicial review, during which time the legislation was amended to remove a key statutory provision. Similarly, in Regional Municipality of York, an environmental assessment was pending for several years during which an amendment was passed that rendered the matter moot.
[25] We do not have like circumstances in this case. There was no inter-related step taken after the Decision to undermine the challenge to the Decision in this application for judicial review. The Constitutional Challenge to the entire Regime, and related request that the Regime be amended, is not merely support for the judicial review. It is a request for broad primary relief including legislative amendments and should be decided by a Superior Court judge. The provincial superior courts have always occupied a position of prime importance to rule on the constitutional validity of legislation: MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at pp. 752-753. The cases relied upon by the AAN do not approach what would be needed to show that the Constitutional Challenge is ancillary to this application for judicial review.
[26] Having considered all the AAN submissions, we conclude that the Constitutional Challenge plainly does not fall within the jurisdiction of this Court under s. 2(1) of the JRPA. That claim is properly addressed before the Superior Court, not in this application for judicial review.
[27] In reaching this decision, we have taken into account the importance of s. 35 of the Constitution Act, 1982, and all that it serves, as well as the importance of access to justice. While those principles do not expand the Court’s jurisdiction as broadly as is suggested by the AAN on this motion, they are reasons to exercise our jurisdiction to transfer the Constitutional Challenge to the Superior Court along with terms to facilitate a smooth transfer.
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