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JR - Against Decisions. Paisley & Whitelaw v. The Chief Building Official of the City of Guelph [meaning of 'order or decision']
In Paisley & Whitelaw v. The Chief Building Official of the City of Guelph (Div Ct, 2026) the Divisional Court dismissed a condo developer's second appeal, this brought against the dismissal of "an appeal to the Superior Court pursuant to s. 25 of the Building Code Act, 1992 ... to overturn an “order or decision” of the respondent .... Chief Building Official (the “respondent” or the “CBO”), respecting the sufficiency of parking at the project."
Here the court considers BCA s.25 ['Appeal to court'], in particular whether an appealable "order or decision" was made. While these reasons are directly applicable to this Building Code appeal context, IMHO the meaning of 'decision' has broader application to all of: appellate, judicial review and statutory interpretation law:[18] As I have said, Fowler Byrne J. dismissed the appeal, which was brought pursuant to s. 25 of the Act, which I quote in part here (emphasis added):25(1) A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8(3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made. ....
5.2.1 Did the appeal judge fail to apply the correct legal principles?
[32] The appeal judge carefully considered the applicable law, reviewing in detail the judgment of Leach J. in Pigozzo, wherein the court undertook a full analysis of s. 25 of the Act and the meaning of “order or decision”. In coming to her conclusion that the CBO’s emails of December 4, 2023, and September 6, 2024, did not constitute orders or decisions, the appeal judge (at para. 29 of her reasons) quoted the following passage from Pigozzo (at para. 13; emphasis in the original):... the rights of appeal provided in s.25(1) of the [Act] are expressly limited to a decision “made” by a CBO, registered code agency or an inspector; i.e., an extant decision, relating to an established set of facts, in respect of which an official actually was called upon to make a determination pursuant to the BCA and did so. In that regard:. No rights of appeal are granted in relation to possible or prospective future decisions, even when a CBO, registered code agency or an inspector goes so far as to indicate, in writing, his or her intentions as to how he or she is likely to decide if and when formally called upon to make such a decision. [33] The appeal judge then continued by noting Leach J.’s reference to the judgment of Gauthier J. in Caisse Populaire Nolin de Sudbury Inc. v. Greater Sudbury (City), [2007] O.J. No. 778 (S.C.J.). In that case, the City’s solicitor had advised a landowner that the demolition of a staircase would not be approved unless another staircase was in place. Although neither Fowler Byrne J. nor Leach J. quoted Greater Sudbury, it is apt to quote the following passage here (para. 24 – 26; emphasis added):The removal of the steel stair case would be the demolition of a material part of the building located at 176 Larch Street. A demolition permit would be required to effect such removal.
The Applicant has not made any application for a permit, in the prescribed form, as required by Subsection 8(1.1) of the [Act].
Consequently, there has been no decision by the chief building official which could be subject to appeal, in accordance with Section 25 of the [Act], ... [34] In the present case, drawing on both Greater Sudbury and Pigozzo, the appeal judge agreed with Leach J.’s conclusions, which she summarized as follows (at para. 28):... the right of appeal conferred by s. 25(1) of the [Act] does not permit appeals in relation to decisions that may or may not be made by a CBO in the future, even if the CBO provides an indication of what he or she may contemplate doing in that regard. [35] The appeal judge concluded that in the present case, where the appellant had not applied for occupancy permits, the CBO had not made any decision respecting the related building permit as required by s. 25. Instead, as the CBO argued, his emails were nothing more than “pre-emptive emails, written in the hope of avoiding a refusal of their building permit, but in no way constitute an order or decision within the meaning of s. 25(1) of the [Act].”
[36] The appellant does not take issue with the correctness of the reasoning in either Pigozzo or Greater Sudbury. Instead, both in this court and before Fowler Byrne J., the appellant submits that those cases are distinguishable from the present case and that the failure to recognize as much led the appeal judge to err in law by failing to apply the correct legal principles. In this respect, the appellant says that the emails from the CBO admit of no ambiguity, clearly express exactly what he would do in certain circumstances, and came directly from the CBO, not mediated by the CBO’s counsel, as in both Pigozzo and Greater Sudbury.
[37] In my view, the emails from the CBO in the present case were expressly contingent and forward-looking (“if” inspections and occupancy permits are requested without adequate parking having been constructed, “then” the building permit will be revoked). As the appellant never requested occupancy permits in the absence of adequate parking, the CBO never revoked the building permit. At the time of the argument of this appeal, it was still the case that no such requests had been made. The fact that the CBO said that a decision would be made in the future is not the same as making a decision or issuing an order. The requisite pre-conditions for the making of such a decision never crystallized so no decision was ever made. To paraphrase Pigozzo, there was no extant decision relating to an established set of facts in respect of which the CBO was required to make a determination and did so. There was, therefore, no decision or order from which the appellant could appeal. The fact that the emails were sent by the CBO himself does not alter their contingent nature and is, in my view, a distinction between the cases which is not meaningful.
[38] I note that there are good policy reasons to approach this jurisdictional question as the trial judge did. As Leach J. said in Pigozzo (at para. 13), a CBO may offer its opinion on a legal question and even put that opinion in writing without having made an order or decision. Where no decision has been made, such an opinion might be revisited. Leach J. put the point as follows:Whatever course of action an official may be contemplating in relation to a formal determination to be made in the future, he or she accordingly has and should have the ability to revisit his or her initial thoughts when making a formal determination based on the precise facts prevailing at the time a formal decision needs to be made. Were it otherwise, the ability of such officials to take changing circumstances and all information relevant to their decisions into account would be constrained, and frustrate the purpose of the Act to make decisions appropriate to evolving circumstances. [39] I add to these observations that a CBO’s expression of opinion allows the builder to know that opinion, to engage with the CBO about it, to challenge it in discussion, and to formulate solutions to the issue or issues identified by the CBO, including by working with the CBO to find those solutions. In part, that is what happened here in connection with towers A and B. If every expression of a position by a CBO opened a right of appeal, CBO’s would be reticent to express them and all these benefits would be lost.
[40] In any case, the appellant also submits that the application judge erred by distinguishing and failing to apply the decisions on which the appellant relies: Wolfond v. North York (City) Building Commissioner (1990), 1990 CanLII 6682 (ON HCJ), 74 O.R. (2d) 466 (Dist. Ct.) and Woodglen & Co. v. North York (City), [1984] O.J. No. 3320 (Div. Ct.). In these cases, the courts confirmed that a communication need not be in any particular form to qualify as a decision, as long as the communication expresses a final determination of the rights of the person to whom it applies. The appellant adds, relying on Waxman v. Ontario (2006), 2006 CanLII 35617 (ON SCDC), 216 O.A.C. 353 (Div. Ct.), that the court may find that a decision has been made when in informal communications the decision-maker reveals that it has already made up its mind and the result of any formal proceeding is preordained.
[41] I agree with the appeal judge and with the respondent that Wolfond does not assist the appellant. There was no issue in Wolfond about whether a decision had been made, because the municipality had plainly refused the builder a building permit. Wolfond is relevant only in that the court relied on an earlier informal communication by the municipality confirming that a permit would be issued given that the proposed building complied with all applicable laws at that time. Before the permit could be issued, however, a new municipal by-law was passed, and the proposed building was no longer compliant. In those circumstances, the court held that the builder ought to have had his permit.
[42] As Fowler Byrne J. concluded (at para. 41), the facts in the present case are “quite different.” The appellant was never advised by the CBO that it would have its occupancy permits, and although the building inspector did not raise parking issues with the appellant, the appellant at all relevant times knew that compliance with the zoning by-law was required for the purposes of the building permit. The appellant was further aware, as the application judge found, that the CBO insisted on compliance with the zoning by-law by providing adequate parking to residents of the project. As the respondent points out, the CBO has a statutory duty under the Act to ensure that no building permit is issued unless compliance with the Act, the Code and all “applicable law” is demonstrated: the Act, s. 8(2)(a). The definition of “applicable law” for the purposes of s. 8(2) of the Act is set out in the Code and includes by-laws: the Code, s. 1.4.1.3(1)(f).
[43] Moreover, unlike Wolfond, there was no intervening change in the law, nor did the appellant make any application for a permit. In short, Wolfond is distinguishable from the present case, and the appeal judge made no error in so concluding.
[44] Similarly, in Woodglen (to which the application judge did not refer), there was no debate that a decision had been made as a permit had been refused. The real issue was whether the municipality’s official plan was included in the definition of “applicable law.” The court held that it was not. Since the proposed building complied with by-laws in force at the time of the application for the permit, the permit ought to have been granted. These facts and conclusions have no bearing on this case.
[45] As for the decision in Waxman, this case is not about whether a decision or order was made under s. 25 of the Act. On the contrary, Waxman is a case about procedural fairness, the need for there to be meaningful production in administrative law cases, and the need to give litigants time to prepare a defence. The circumstances in Waxman and the exceptional order made in that case have no bearing on the issues in this appeal.
[46] To summarize, I am of the view that the appeal judge did not fail to advert to and apply the relevant legal test. By referring to and applying Pigozzo and Greater Sudbury she did exactly that. She made no extricable error in law. She did not err by distinguishing the cases relied upon by the appellant. . Young v. Cox et al.
In Young v. Cox et al. (Div Ct, 2026) the Divisional Court considered a JR-justiciability issue, here whether there had been a 'reviewable decision':Was there a reviewable decision?
[20] The Respondents submit that the December 27, 2025 email was not a decision at all but merely information communicated to the Applicant. This submission presents a significant obstacle to the proposed judicial review.
[21] The statutory scheme is important. Under ss. 33 and 35 of the MEA, a candidate becomes entitled to have a nomination examined only after nomination papers are submitted. The Clerk then decides whether to certify or reject the nomination. The Act expressly states that the Clerk's decision to certify or reject a nomination is final.
[22] The Applicant never submitted a nomination. Consequently, no nomination was before the Clerk for examination and no statutory duty arose requiring the Clerk to determine whether the Applicant qualified as a candidate under s. 35 of the MEA. The December email did not certify or reject a nomination. Rather, it communicated the Clerk's understanding of the legal effect of the Applicant's prior failure to file a financial statement.
[23] PDF typeThe reasoning in West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821, cited by the Respondents, supports the proposition that not every expression of opinion by a public official constitutes an exercise of statutory authority reviewable on judicial review.
[24] On this record, the Applicant has not demonstrated a prima facie basis to conclude that the December email itself constituted a reviewable administrative decision. . Grassy Narrow First Nation v. His Majesty the King in Right of Ontario, et al
In Grassy Narrow First Nation v. His Majesty the King in Right of Ontario, et al (Div Ct, 2026) the Divisional Court dismissed a JR, this brought against "the actions of a Director appointed under the Environmental Protection Act" who refused "to exercise his powers under the Act to issue stop and control orders against the mine".
Here the court considers, without clearly deciding, the JR-justiciability of an EPA "Director's letter":[22] HMKIRO submits that the Director’s letter is not properly subject to judicial review, as it simply affirmed existing rights under the previous ECA and resulted in no change to the status quo. The Director’s response to Grassy Narrows was an unreviewable “courtesy letter”. HMKIRO submits that in any event, the Director acted reasonably in refusing to issue a stop order, and had no statutory basis upon which to issue a control order. Further, the duty to consult was not triggered.
[23] In my view, HMKIRO’s submission that the Director’s actions were no more than a “courtesy letter” and not subject to judicial review likely goes too far. While the scope of judicial review of a discretionary enforcement decision may be narrow, such decisions are not generally shielded from judicial review. The Judicial Review Procedure Act R.S.O. 1990, c. J.1 expressly contemplates review of the refusal to exercise a statutory power. However, given my conclusions below that the application cannot succeed, I do not need to resolve this issue and have proceeded on the assumption, not the decision, that the Director’s letter is subject to judicial review.
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[40] The most significant of the obstacles is the context in which the Director’s actions occurred. The Director is determining what, if any, enforcement actions should be taken. This is an area in which the Director enjoys significant discretion. Ministerial decisions of a discretionary nature attract a high degree of deference. Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41 (CanLII), [2001] 2 SCR 281 at para. 56. Further, as the Court of Appeal has recently reiterated, “[i]t is well established that an administrative decision maker’s decision not to take enforcement steps in response to a complaint is subject to a limited right of judicial review on procedural fairness grounds”: West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821 at para. 124. . Society of Composers, Authors and Music Publishers of Canada v. Apple Canada Inc.
In Society of Composers, Authors and Music Publishers of Canada v. Apple Canada Inc. (Fed CA, 2026) the Federal Court of Appeal dismissed, on a motion to strike, a SOCAN-brought JR, this brought against a Copyright Board ruling regarding preliminary case management issues.
Here the court considers the respondent's argument that the matter sought to be JR'd was not a 'decision', and thus was not JR-justiciable:[6] Three respondents, Buena Vista International, Inc., Warners Bros. Entertainment Inc. and Netflix Inc., now bring a motion to strike the application. They contend that the Phase I Ruling is an interlocutory one in a larger and ongoing administrative process and is therefore not a "“decision”" amenable to judicial review; ....
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A. The Phase I Ruling is not amenable to judicial review
[17] First, only administrative action that affects rights, imposes legal obligations, or causes prejudicial effects is amenable to judicial review: Democracy Watch v. Canada (Attorney General), 2020 FCA 69 at para. 19; Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 at paras. 175–176, leave to appeal to SCC refused, 38379 (2 May 2019); Democracy Watch v. Canada (Conflict of Interest and Ethics Commissioner), 2009 FCA 15 at para. 10 [Democracy Watch]; Air Canada v. Toronto Port Authority Et Al, 2011 FCA 347 at para. 29 [Toronto Port Authority]; (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72 at para. 94 [Canadian Council for Refugees]; Air Passenger Rights v. Canada (Attorney General), 2024 FCA 128 paras. 18–31.
[18] The Board’s decision determining the tariffs at the end of Phase II would be such an action. However, I am not persuaded the Phase I Ruling affects legal rights, imposes legal obligations, or causes prejudicial effects to SOCAN that warrant judicial review at this stage of the proceeding. While I accept that the Phase I Ruling may affect the way the balance of the proceeding to determine the tariffs is conducted, that may be said of many interlocutory orders.
[19] SOCAN posits that the Board’s decision is final in substance no matter how the Board describes it. In doing so, SOCAN says it is not suggesting that the Board intended to manipulate the prematurity doctrine. Yet, it relies on Federal Court decisions where the relevant administrative decision maker was seen as trying to shield itself from judicial review: Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732 at para. 23, and GCT Canada Limited Partnership v. Vancouver Fraser Port Authority, 2020 FC 1062 at para. 44, appeal dismissed, 2021 FCA 183. The circumstances at issue here are simply not comparable to those addressed in those cases.
[20] SOCAN also submits that this Court has previously recognized a first order of the Board in a bifurcated proceeding as a matter amenable to judicial review. That is true. But I agree with the respondents that Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers (C.A.), 2002 FCA 166 [CAIP] is distinguishable. First, the decision under review in CAIP—the Board’s first decision in a bifurcated proceeding—disentitled SOCAN from collecting royalties from an entire class of users and thus was final in that respect: CAIP at paras. 2, 4, 23. Second, the parties consented to the Court’s jurisdiction, and prematurity was not addressed: CAIP at paras. 33–34. Finally, CAIP predates Democracy Watch, Toronto Port Authority, and Canadian Council for Refugees.
[21] I also agree with the respondents that SOCAN’s reliance on Wilson is misplaced. In Wilson the administrative decision maker bifurcated the proceeding into a merits and remedy phase—creating a "“natural break between two separate phases of the proceedings”", which, in the words of this Court, "“often does not cause the ills identified ""in ""C.B. Powell""”": Wilson at para. 36.
[22] In contrast, here the Board bifurcated the proceeding in consultation with the parties but has yet to apply the legal interpretations set out in its Phase I Ruling. Thus, the impact of the Phase I Ruling will crystallize only when a formal decision on the tariffs is made under the Copyright Act: Çolakoğlu Metalurji A.S. v. Altasteel Inc., 2025 FCA 29 at para. 11. In other words, Phase I and Phase II together concern the merits of the proceeding. . West Whitby Landowners Group Inc. v. Elexicon Energy Inc.
In West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of a JR regarding "whether an intervention by the Ontario Energy Board (the “OEB” or the “Board”) in a cost-sharing dispute between a group of real estate developers in Whitby, Ontario, and the licensed monopoly distributor of electricity in that region, is judicially reviewable".
Here the court considers the wide range of forms that an administrative decision-maker's decision may take:[104] Administrative decision makers, especially regulatory bodies, may issue decisions in many forms. The fact that a decision may be conveyed in a letter rather than an order is no bar to judicial review: see e.g., the decisions found to be judicially reviewable in Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149 (contained in a letter from staff representing the Independent Police Review Office screening out a complaint); and, Graywood Div. Ct. (contained in a letter from the OEB dismissing a complaint).
[105] The scope of a reviewable regulatory decision was considered by the Federal Court of Appeal in Telus Communications Inc. v. Federation of Canadian Municipalities, 2023 FCA 79, [2023] 3 F.C.R. 3, aff’d 2025 SCC 15, 502 D.L.R. (4th) 59. In that case, the court noted the broad decision-making authority of the Canadian Radio-television and Telecommunications Commission (“CRTC”), and highlighted the distinction between policy statements and decisions in specific disputes: at paras. 55, 62-63. The court paid particular attention to the language used by the CRTC in addressing the dispute in that case, and concluded that the language used was not preliminary or tentative, but reflected a determination by the CRTC of the matter before it, interpreting the legislative provision at issue:On the basis of that language, I fail to see how the CRTC could later entertain an application by a carrier for an order to access a municipal structure for the purposes of constructing, operating and maintaining mobile wireless apparatus. There is nothing tentative in the wording of its decision, and there is no further step involved before the decision becomes effective as was the case in the earlier policy decisions which this Court determined not to be “decisions” for the purposes of section 64 of the Act. Moreover, the Decision is based on the CRTC’s interpretation of the Act, not on the assessment of facts or the existence of a particular technology that could change or evolve in the future. In other words, the Decision is clearly definitive and is meant to be a definitive finding.[Emphasis added.] [106] In my view, a similar analysis applies in this case. The language used by the OEB in the correspondence was neither preliminary, nor tentative, but rather was, and was intended to be, a definitive interpretation and application of the Code.
[107] The decision of the Board determined the legal issue in dispute by interpreting the Code, and further, allocated the costs of MS16 between Elexicon and the appellant based on its determination.
[108] To use the wording of the Federal Court of Appeal in Telus, based on the Board’s framing of its response to the parties’ dispute, I fail to see how the Board could have later entertained an application by the appellant in relation to the expansion or enhancement issue and come to a different conclusion.
[109] This context may be contrasted with settings where the OEB expressly issues opinions that it intends to be non-binding. For example, the OEB, in its factum, refers to the Divisional Court’s decision in Powerline Plus Ltd. v. Ontario (Energy Board), 2013 ONSC 6720, 315 O.A.C. 315 (Div. Ct.), in which the propriety of the Board relying on certain OEB staff “compliance bulletins” issued to the public was at issue. In that context, the Divisional Court noted that the Board had acknowledged that it was not bound in any way by the compliance bulletins but that, equally, it was not required to ignore them: at para. 57. The Board stated in its decision that it regarded the submissions of Board staff to be no more authoritative than any others: at para. 57.
[110] This context is entirely different from the case on appeal, where the Board presented the staff conclusions as determinative of the issue in dispute, and did so in a context where it was understood by all parties, including the Board, that its conclusions would be binding on Elexicon and the appellant.
[111] In sum, I would find that the decision contained in the OEB Letters was exercised pursuant to the Board’s statutory authority under s. 105 of the Act, and is thus a decision made under a power conferred by statute. .... . Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer)
In Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer) (Div Court, 2024) the Divisional Court considered JR 'justiciability', here where the decisions challenged "do not affect .... legal rights or obligations":Issue 1: Is Judicial review available?
Nature of Decisions not amenable to judicial review
[68] The applicants assert that FSRA is exercising statutory powers under ss. 3 and 6 of the FSRA Act and the Decisions are amenable to judicial review.
[69] FSRA submits that the court does not have jurisdiction because the purported Decisions are not an exercise of statutory power and have no effect on the legal rights or obligations of the applicants. FSRA further submits that the application should be dismissed due to the applicants’ delay.
[70] FSRA is not specifically required or empowered by statute to issue the Transparency Guidance or publish the NOP. In this case, the Decisions were to provide a non-binding guidance document on FSRA’s administrative processes and to publish (or not publish) documents on FSRA’s website. Section 3 of the FSRA Act provides FSRA’s statutory objects: the goals FSRA strives to achieve. Section 3 does not confer any jurisdiction, authority, or a statutory power of decision upon FSRA. Section 6 provides FSRA’s natural person powers, empowers FSRA to administer and enforce legislation, and prohibits FSRA from establishing, acquiring, or dissolving subsidiary corporations. While the Transparency Guidance states that the policy achieves FSRA’s statutory objects, neither ss. 3 nor 6 confer any authority or obligation on FSRA to publish NOPs and FSRA does not rely on either section to do so.
[71] The applicants attempt to draw a parallel to The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div.Ct.), aff’d 2019 ONCA 393, 147 O.R. (3d) 398. In that case, the College of Physicians and Surgeons was found to have exercised a statutory power to establish standards for physicians in enacting policies which set broad expectations of physician behaviour which were expected to be persuasive in disciplinary hearings alleging professional misconduct.[4] The facts in that case are distinguishable. In this case FSRA is not requiring any licensee to do anything.
[72] The nature of the Decisions in this case supports that they are not statutory powers of decision and that they are not amenable to judicial review.
No Effect on Legal Rights or Obligations of the Applicants
[73] To be subject to judicial review a decision must affect the applicants’ legal rights or obligations.[5]
[74] The applicants allege that the publication of the NOP had an adverse effect on their reputation and that they have a right to have their reputation protected and dealt with fairly, specifically concerning publication of both the NOP and the RFH before the merits have been decided by FST.
[75] Although the applicants have an interest in their reputation, the publication of allegations by the regulator does not give rise to a right to judicial review. The Decisions here do not affect the legal rights, interests, property, privileges, or liberty of the applicants. The Transparency Guidance issued by FSRA simply describes when and how FSRA will publish documents related to its enforcement proceedings. Reputational damage in the circumstances of this case does not give rise to a right of judicial review.
Conclusion on availability of judicial review
[76] Having found that the Decisions do not affect the legal rights or obligations of the applicants, I conclude that judicial review is not available. In the event I am wrong in my conclusion, I go on to consider the issues of delay and reasonableness of the Decisions. . Tuquabo v. Canada (Attorney General)
In Tuquabo v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of an order striking JR pleadings, here where the applicant sought to judicially review CRA letters [under FCA s.18.1]:[3] In my view, the Motion Judge made no error in striking the appellant’s Notice of Application. In his application, the appellant sought judicial review of two letters from the Canada Revenue Agency (CRA). In the first, dated July 31, 2017, the CRA requested additional information in respect of the appellant’s Notice of Objection for the 2014 taxation year. In the second, dated May 9, 2023, the CRA replied to correspondence about the appellant’s income tax matters and his appeal to the Tax Court of Canada. The appellant also sought judicial review of a Notice of Confirmation, dated January 17, 2018, disallowing his objection and confirming his income tax assessment for the 2014 taxation year.
[4] The Motion Judge found that the application is clearly bereft of any chance of success, as it is for all intent and purposes a challenge to the validity of the Minister’s assessment. As such, she determined that the Tax Court has exclusive jurisdiction on such matters pursuant to the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the ITA), and therefore, that it was not properly before the Federal Court. As for the letters, the Motion Judge found that they were not reviewable decisions or matters within the meaning of section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act), because they do not affect legal rights, impose legal obligations or cause prejudicial effects: Democracy Watch v. Canada (Attorney General), 2021 FCA 133 at para. 23, citing Air Canada v. Toronto Port Authority et al., 2011 FCA 347 at para. 29 and Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15 at para. 10.
[5] Having carefully considered the record, I have not been convinced by the appellant that the Motion Judge made any reviewable errors. As is well established, a decision to strike a pleading is discretionary and can only be set aside if the motion judge committed a palpable and overriding error or an error of law: Michaels of Canada, ULC v. Canada (Attorney General), 2023 FCA 243 at paras. 2–5; Sagos v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 47 at paras. 2–4. The Motion Judge stated the correct legal test on a motion to strike and properly relied on JP Morgan Asset Management (Canada) Inc., according to which a moving party must demonstrate that the application is "“so clearly improper as to be bereft of any possibility of success”", such that there must be "“an obvious, fatal flaw striking at the root of this Court’s power to entertain the application”": JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250 at para. 47.
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[7] As for the two letters, they are clearly not reviewable decisions as they did not affect the appellant’s legal rights, imposed no legal obligation, and caused no prejudicial effects. The July 31, 2017 letter simply requested further documents from the appellant to support his position, whereas the May 9, 2023 letter from the Assistant Commissioner of the CRA’s appeal branch is a courtesy letter providing the appellant with information about his ongoing appeal, as held by the Motion Judge.
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