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Judicial Review - Investigation. 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. . Dr. Luchkiw v. College of Physicians and Surgeons of Ontario
In Dr. Luchkiw v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered a JR of a disciplinary finding of the 'Inquiries, Complaints and Reports Committee' (ICRC) of the College of Physicians and Surgeons of Ontario (CPSO), here regarding issuing COVID vaccination exemptions and related COVID matters. In this quote the court states it's hesitancy to JR the appointment of investigators:[58] As a general rule, this Court declines to hear applications for judicial review of the decision to appoint investigators before the administrative process is complete: Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2022 ONSC 1220 (Div. Ct), at paras. 7, and 9. As noted in Lala v. College of Physiotherapists (Ontario), (2003), 127 ACWS (3d) 589 (Div. Ct.), at para. 2:The only issue in this application relates to the basis for the appointment of an investigator. This Court has consistently followed a well-established line of authority against a piecemeal approach to the judicial review of administrative action. In the absence of exceptional circumstances, it is preferable to allow administrative proceedings to run their full course before the tribunal and to consider the legal issues arising from the proceeding, including procedural matters, against the backdrop of a full record and a reasoned decision of the tribunal. . Vaughan Health Campus of Care v. Essensa
In Vaughan Health Campus of Care v. Essensa (Div Ct, 2021) the Divisional Court denied a judicial review application of the decision of the Ontario Chief Electoral Officer to refer complaints to investigation, based on it not being justiciable under the JRPA:[1] This is an application for judicial review of a decision of the Chief Electoral Officer of Ontario to refer certain complaints to the Attorney General as apparent contraventions under the Elections Finances Act.
[2] We are of the view that the issues raised in this application are indistinguishable at law from the decision of the Court of Appeal for Ontario in PC Ontario Fund v. Greg Essensa, Chief Electoral Officer, 2012 ONCA 453. There, the Court of Appeal wrote, at paragraphs 11 and 12:11. We agree with the Divisional Court that under the statutory scheme established by the EFA, the CEO’s decision to investigate the PCPO’s allegations, the manner in which he chose to conduct that investigation and his decision not to report the matter to the Attorney General as an apparent contravention, are not susceptible to judicial review.
12. When he dealt with the appellants’ allegations involving the WFC, the CEO’s decision not to report the complaint to the Attorney General did not decide or determine any legal rights. The CEO’s treatment of the complaint made by the appellants may well have had significant political consequences. However, it did not amount to a decision affecting the legal rights, interests, property, privileges or liberty of any person or party. It was not, therefore, a decision amenable to review under the traditional prerogative writs and it did not amount to the exercise of a “statutory power of decision” within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1 and 2(1). From a legal perspective, the CEO’s decision was analogous to that of a police officer refusing to lay a charge or a crown attorney declining to prosecute a case on the ground that there is no reasonable prospect of a successful prosecution. The appellants’ plea to afford the EFA a “purposive interpretation” that would make the decision susceptible to judicial review amounts to a plea to create a different statutory regime, and that we cannot do. [3] We are unanimously of the view that the decision of the Chief Electoral Officer in this case similarly does not affect the legal rights, interests, property, privileges or liberty of any person or party.
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