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JR - Discretion (2). BizTech v. Accreditation Canada
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court considers the constitutional status of judicial reviews (JR), here in the context of determining whether JR can be "a proceeding" under Arbitration Act s.7(1) ['Stay'] and thus whether the court can exercise it's discretion to hear it or not:[133] When it comes to the stay of this judicial review proceeding, the starting point of the analysis is that judicial review by the courts is protected by s. 96 of the Constitution Act, 1867. It is a cornerstone of our justice system. And legislative lawmakers cannot remove the court’s ability to conduct judicial review: Ontario Place Protectors v. Ontario, 2025 ONCA 183, at para 33; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563, at para. 24. Thus, the fact the JRPA does not include mandatory language excluding arbitration is legally irrelevant given the constitutional status of judicial review, its relationship to the rule of law and the status of superior courts. As Lorne Sossin J.A. explains in Practice and Procedure Before Administrative Tribunals (Toronto: Ontario: Thomson Reuters), § 38:2. Nature, Source and Purpose of Judicial Review:Judicial review refers to the constitutional power, right and responsibility of the superior courts to ensure that state authority is exercised in accordance with the law. It is a vital aspect of the rule of law. As such the ability of courts to judicially review state action is not dependant on a legislature creating such a right. Unlike a right of appeal, which exists only to the extent that a legislature creates it, judicial review exists independent of legislative desire or creation as an inherent power of the superior courts flowing from sections 96 to 101 of the Constitution Act, 1867.
By virtue of the concept of the rule of law, all exercises of public authority must find their source in law. Furthermore, all decision-making powers have legal limits, derived from the enabling legislation, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep these limits. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [134] The JRPA is thus distinct from other statutes in this regard.
[135] However, this recognition does not answer the question before me. As urged in Peace River, the answer depends very much on the legal context, the terms of the arbitration agreement, and the specific facts of the case.
[136] The constitutional right to seek judicial review does not mean “a right to require the court to undertake judicial review” regardless of the nature of the question before it: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 30; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, at p. 93.
[137] Discretion is inherent in undertaking the task of judicial review. At minimum, the court must determine whether judicial review is appropriate. In deciding that, if the court determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application. The court also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at para. 54; ss. 2(2), (5) of the JRPA. . Voices of Willowdale Inc. v. City of Toronto
In Voices of Willowdale Inc. v. City of Toronto (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this against an OLT decision "to adopt a zoning by-law to permit the construction of a three-story apartment building for people leaving homelessness. The new development would be in addition to the existing four-story building on the property, which houses 600 senior citizens.":
Here the issue was whether the court should exercise it's discretion to hear a JR after a leave to appeal application [under OLTA s.24] was dismissed (unusually, the OLTA has a leave requirement at the first level of court appeal):Should we exercise our discretion to hear the judicial review application in light of the ruling on the motion for leave to appeal?
[19] VOW brought a motion for leave to appeal under s. 24 of the OLTA, which permits an appeal to this Court, with leave, on questions of law.
[20] On May 17, 2024, the motion for leave to appeal was dismissed. As is the practice in this Court, no reasons were provided.
[21] The City argues that VOW should not be permitted to proceed with judicial review on issues of law it raised in its notice of application for leave to appeal. The City argues VOW had a route to appeal errors of law and is now estopped from raising the same issues for which they were denied leave. The City submits that judicial review is a remedy of last resort and this Court should not exercise its discretion to hear the judicial review application because VOW had a full opportunity to raise any legal errors in its leave application.
[22] The Tribunal also submits that the Applicant should not be permitted to raise the same issues in their judicial review application that were raised in its leave motion.
[23] In Vavilov, the Supreme Court of Canada held that a right of appeal on a question of law does not preclude an individual from seeking judicial review for questions not dealt within the appeal.
[24] This Court was faced with a decision whether to consider an application for judicial review even though a statutory appeal had been filed, in Shearer v. Oz, 2024 ONSC 1723. In Shearer, both the appeal and the application for judicial review were before the same Divisional Court panel. The Court heard the appeal on a question of law. The Court also exercised its jurisdiction to hear the application for judicial review on questions of fact or mixed fact and law. Corbett J., stated at para. 32 that:In respect to the application for judicial review, this court will not entertain the application to the extent that its substance is addressed adequately by another process. In this case, the "other process" is the appeal. The only issues before us that could form a basis for judicial review that this court will entertain, therefore, are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion, all of which are reviewed on a standard of reasonableness in an application for judicial review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. [25] This Court dismissed VOW's motion for leave to appeal without reasons. In oral argument during this application hearing, the City conceded that some of the issues raised in the motion for leave to appeal were ones of mixed fact and law and, therefore, outside the scope of a statutory appeal. I am satisfied that all the issues raised in this application for judicial review are either questions of fact, or questions of mixed fact and law with no extricable questions of law. Those issues could not have been dealt with in an appeal under s. 24 of the OLTA. Judicial review is still available to VOW on issues of fact, or mixed fact and law and the principle of issue estoppel does not arise. As a result, I find that this is an appropriate case in which to exercise our discretion to hear the application for judicial review notwithstanding the unsuccessful application for leave to appeal: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713. . Byrne v. Canada (Border Services Agency)
In Byrne v. Canada (Border Services Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, this against a CITT dismissal of an appeal, that brought when the "Canada Border Services Agency prohibited the entry of the pistol into Canada, finding that it was a "“prohibited weapon or device”" as it met the definition of a replica firearm under subsection 84(1) of the Criminal Code".
Here the court declines to hear purely legal issues (holding that only issues of fact and issues of mixed fact and law could be heard) on a JR where there was an unused appeal on "any question of law" available [under s.68(1) Customs Act]:[2] .... To the extent that Mr. Byrne alleges that the CITT committed errors of law, his recourse was through appeal to this Court under subsection 68(1) of the Customs Act, R.C.S. 1985, c. 1 (2nd Supp.): Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209 at para. 29. This Court’s jurisdiction on an application for judicial review such as this is confined to reviewing errors of fact or mixed fact and law. . Equity Builders Ltd. et al. v. Landlord and Tenant Board et al. [LTB recon as AAR versus JR discretion]
In Equity Builders Ltd. et al. v. Landlord and Tenant Board et al. (Ont Divisional Ct, 2025) the Divisional Court (mostly) dismissed a multiple-proceeding combination of both LL-initiated JRs and RTA s.210 appeals, here respecting multiple units in a Sarnia apartment building. After a fire "the Chief Building Official for the City of Sarnia issued an order to the Landlord directing that the premises be vacated", followed by a second order several days later restricting access to a lesser number of units. The LL subsequently refused re-entry to tenants not covered by the later less restrictive order, eventually resulting in RTA orders of illegal lock-out for numerous units - and that "the Landlords had substantially interfered with the reasonable enjoyment by the Tenants of their units; and found that the Landlords obstructed, coerced, threatened or interfered with the Tenants".
Here the court considers a JR prematurity issue were the advanced adequate alternative remedy is an administrative LTB reconsideration, and it's interaction with the court's JR discretion [JRPA s.2(1,5)]:Should this Court Hear the Application for Judicial Review
[60] The Tenants submit that this court should decline to hear the application for judicial review because the Tenants failed to request a reconsideration of the Board’s orders. Under Rule 26.1 of the Board’s Rules of Procedure:Any party may request review of any order which makes a final determination of the party’s rights. For these purposes an interim order may contain a final determination of rights. A person who is directly affected by a final order may also request a review of an order. [61] Rule 26.8 (e) of the Board’s Rules stipulates that a request for review must provide sufficient information to support a preliminary finding of an alleged serious error or an explanation of why the requestor was not reasonably able to participate in the hearing.
[62] The Board’s guideline contemplates that “serious errors” justifying a review of a decision include “unreasonable finding[s] of fact on a material issue” and “unreasonable exercise[s] of discretion which [result] in an order outside the usual range of remedies or results and where there are no reasons explaining the result”.
[63] According to the Tenants, the Board’s discretion to review is broad, and in this case, reconsideration would have been an adequate alternative remedy that should have been exhausted before applying for judicial review.
[64] In Yatar, the Supreme Court of Canada emphasized that determining the appropriateness of judicial review is ultimately a “balancing exercise” that goes beyond simply assessing the adequacy of the alternative remedy. As put by the Court, at para. 64:This Court in Strickland, at para. 43, also emphasizes the appropriateness of judicial review in the circumstances, referring to a “balancing exercise”:The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case. Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis…(citations omitted, emphasis in original). [65] The Tenants are not suggesting that this court should not hear the Landlords’ appeal because of a failure to apply for a review of the Board’s orders. Further, their factum correctly points out that the grounds with respect to both the appeal and the application for judicial review are closely connected and intertwined. Therefore, from a judicial economy perspective, hearing the applications for judicial review at the same time as the appeals will not entail a significant use of additional judicial resources.
[66] In United Brotherhood of Carpenters (Local 249) v. Matrix North Construction Ltd., 2019 ONSC 5647, the Divisional Court found that it may be appropriate to require reconsideration before judicial review when “there are conflicting decisions by the Board on a matter of policy, and the Court determines that the Board should be given an opportunity to clarify the issue”: at para. 41. No such issue is raised in this proceeding. Another instance that might justify requiring judicial review might be where there is an allegation of procedural fairness, and the Court determines that the Board should have an opportunity to provide a remedy for the problem. However, the Tenants have conceded that the procedural fairness issues raised in this case are errors of law and, therefore, this court will be addressing them in the context of the appeal.
[67] To use the language adopted in Yatar, supra, the balance of convenience favours hearing the issues raised in the applications for judicial review at the same time as the issues raised in the appeal.
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