|
Judicial Review - JR-Damages [JRPA 8]The Skof v Bordeleau (Ont CA, 2020) case [below] is enlightening on the ability to combine JR remedies with normal Superior Court lawsuits (for damages and more).
. Whiteduck v. Ontario
In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considered the federal and Ontario availability of lawsuits ('actions') to challenge administrative acts, as opposed to judicial reviews:[66] Ontario relies on Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 2 S.C.R. 585, at para. 19, for the proposition that a proceeding to set aside an administrative decision must be brought by way of judicial review. In TeleZone, the plaintiff sued the federal government for damages in tort and breach of contract for rejecting its personal communications services licence application. The Supreme Court rejected Canada’s argument that the plaintiff must first seek judicial review of the decision to reject the licence application before proceeding with a civil action. It did so on the basis that TeleZone was not seeking to set aside or nullify the decision. Even so, the plaintiff could pursue damages in the Ontario Superior Court of Justice despite the Federal Courts Act, R.S.C. 1985, c. F-7.
[67] In my view, the decision in TeleZone is not applicable. TeleZone dealt with decisions of the federal government, the Federal Court’s jurisdiction under the Federal Courts Act, and the concurrent jurisdiction of provincial superior courts under the Act. Section 18 of the Act confers exclusive original jurisdiction on the Federal Court to determine any case seeking administrative remedies, including writs of certiorari, against any federal board, commission, or tribunal. There is no equivalent statutory provision in Ontario ousting the Superior Court’s jurisdiction on the facts of this case, as I have noted in the analysis of the more limited reach of the Judicial Review Procedure Act. . Shaulov v. Law Society of Ontario
In Shaulov v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal recognizes the alternative 'action/damage' JR commencement route embodied in JRPA s.8:(5) Jurisdiction over the appellant’s administrative law claims
[22] As the respondents concede, the motion judge erred in concluding that the Superior Court of Justice has no jurisdiction to determine the appellant’s administrative law claims that relate to the exercise of a statutory power because they were started by way of an action rather than an application. Pursuant to s. 8(1) of the Judicial Review Procedures Act, R.S.O. 1990, c. J.1, a judge of the Superior Court may retain jurisdiction over these claims: Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, 101 O.R. (3d) 321, at para. 63, leave to appeal requested but application for leave discontinued, [2010] S.C.C.A. No. 397. The motion judge should therefore have determined whether the administrative law claims should be dismissed under r. 21.01(1)(b).
[23] As this is an issue that the motion judge should have determined, I would remit to her the question of whether the administrative law claims should be dismissed under r. 21.01(1)(b). . Skof v. Bordeleau
In Skof v. Bordeleau (Ont CA, 2020) the Court of Appeal - on an successful appeal of a granted motion to strike - highlighted an important (and little-realized) point about JRPA s.8. The Court of Appeal, finding that it was not "clear and unequivocal" that an action combining damages and JR remedies in the Superior Court couldn't proceed, reinstated the action.
The Court of Appeal under JRPA 8, countenances a party seeking certain JR remedies [JRPA 2(1)2: 'injunctions and declarations regarding statutory powers'], amongst other remedies, in a Superior Court action. In such a case, if a party applies, the court may order that the JR matter be dealt with summarily (which is apparently meant as akin to a JR application). On such an application, the court may transfer the proceeding to the Divisional Court, or treat it under JRPA 6(2) (the 'urgency' provision) and keep it in the Superior Court.
I find that there are ambiguities in the s.8 provision - 1. is the court on such an application bound to exercise one of the two suggested orders, or can they just treat it summarily in the Superior Court with no further orders?, and 2. if no such application is made, can the proceeding continue normally in Superior Court?
This is an interesting and challenging case that throws the prior widespread belief (and maybe more) 1. that you can't combine damages and JR remedies in one proceeding, and 2. that, barring s.6(2) 'urgency', you can't advance JR remedies outside the Divisional Court.Note: The section of the JRPA referred to [s.8] reads:8. Where an action for a declaration or injunction, or both, whether with or without a claim for other relief, is brought and the exercise, refusal to exercise or proposed or purported exercise of a statutory power is an issue in the action, a judge of the Superior Court of Justice may on the application of any party to the action, if he or she considers it appropriate, direct that the action be treated and disposed of summarily, in so far as it relates to the exercise, refusal to exercise or proposed or purported exercise of such power, as if it were an application for judicial review and may order that the hearing on such issue be transferred to the Divisional Court or may grant leave for it to be disposed of in accordance with subsection 6 (2). Here's the key quote:V: Judicial Review
[21] On this point, the motion judge appears to have been of the view that the issues here could be addressed only by judicial review. As result, in his view, the appellant was not entitled to bring an action for such relief but, rather, had to pursue an application for judicial review to the Divisional Court. This led the motion judge to strike out the appellant’s action.
[22] With respect, the motion judge erred in so concluding. Assuming that the appellant’s action constitutes a claim for judicial review, there is nothing in the Judicial Review Procedure Act that precludes an aggrieved party from seeking relief by way of an action. Indeed, the Judicial Review Procedure Act contemplates that very possibility because it refers, in s. 8, to actions that seek relief in the nature of judicial review, and provides that a judge of the Superior Court of Justice can deal with such actions summarily, or can treat the action as an application for judicial review and refer it to the Divisional Court. I would note, on this point, that one reason why an aggrieved party might choose to bring an action, as opposed to an application for judicial review, is that in the former, unlike the latter, damages can be sought. . Ahmed v. Peel District School Board
In Ahmed v. Peel District School Board (Div Ct, 2021) the Divisional Court states some basics of judicial review and the Divisional Court:[11] The Divisional Court derives its jurisdiction from statute. Judicial review is governed by the Judicial Review Procedure Act. The jurisdiction of the Divisional Court on an application for judicial review is limited to making orders to which the applicant would have been entitled in two circumstances:1. by way of an application in the nature of mandamus, prohibition or certiorari, or
2. by way of an action for a declaration or injunction in relation to the exercise of a statutory power of decision. The Divisional Court has no jurisdiction to award damages or compensation.
[12] The only “decision” of the respondent in respect of which the applicant seeks relief in his application for judicial review is the decision not to pay him compensation in 2020 for loss and damage alleged to have been caused by the failure of the respondent to accommodate his learning disability while he was a student from 2000 to 2010.
[13] This is not relief in the nature of mandamus, prohibition or certiorari. Nor does it involve declaratory or injunctive relief arising from the exercise of a statutory power of decision. . Ling v. Justice of the Peace Review Council
In Ling v. Justice of the Peace Review Council (Div Ct, 2021) the Divisional Court holds that a Divisional Court application under the JRPA does not have damage jurisdiction [but cp. Skof v Bordeleau]:[17] However, there is one fundamental deficiency in Mr. Ling’s application for judicial review. The Divisional Court does not have jurisdiction to award damages in the context of an application for judicial review. The orders that the Divisional Court can make on an application for judicial review are circumscribed by section 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. The Divisional Court is a statutory court. The Court’s jurisdiction is limited to those matters prescribed by statute. The decision in Elmardy v Toronto Police Services Board that Mr. Ling refers to in his submissions was a Divisional Court decision granting an appeal from a civil trial. The Court in that case did not award damages in the context of an application for judicial review, but rather awarded damages in the context of granting a civil appeal. If this application for judicial review goes forward and Mr. Ling is successful, this court will not have jurisdiction to award damages but will be limited to the relief available in section 2 of the Judicial Review Procedure Act. . Firsov v. Canada (Attorney General)
In Firsov v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal would have denied a damages remedy on a JR as it lacked such jurisdiction (the appeal fell on it's merits anyway):[67] Cst. Firsov also seeks payment of $1,000,000.00 as "“punitive damages”" for what he asserts was the improper treatment he has received at the hands of the RCMP. However, as we explained to Cst. Firsov in the course of the hearing, damages are not available as a remedy in connection with judicial review applications: Brake v. Canada (Attorney General), 2019 FCA 274 at para. 26; Garshowitz v. Canada (Attorney General), 2017 FCA 251 at para. 10, [2017] F.C.J. No. 1268; Maximova v. Canada (Attorney General), 2017 FCA 230 at para. 14, [2017] F.C.J. No. 1212. Consequently, none will be awarded here.
|
