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JR - Jurisdiction. Berentschot v. Ontario
In Berentschot v. Ontario (Ont Div Ct, 2025) the Ontario Divisional Court concluded that it has no JR jurisdiction to review a decision of the Superior Court:[1] The Applicant has brought an Application for Judicial Review of the decision of Justice C.M. Smith dated May 22, 2025, dismissing the Applicant’s claim pursuant to Rule 2.1.01(1) of the Rules of Civil Procedure, and the decision of Justice Leibovich dated July 10, 2025, dismissing the Applicant’s motion to “reconsider” the decision of Justice Smith.
[2] On July 31, 2025, I directed the Registrar to give notice to the Applicant that the Court was considering making an order dismissing her application under Rule 2.1.01.
[3] My Endorsement of July 31, 2025 stated:The Application for Judicial Review appears on its face to be frivolous, vexatious or an abuse of process.
The Divisional Court does not have jurisdiction to entertain an application for judicial review of a Superior Court Judge, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1. See: Bevan v. Ontario Society for the Prevention of Cruelty to Animals, 2006 CanLII 10140 (ON CA), at para. 8; 1147335; 9383859 Canada Ltd. v. The Court of Appeal for Ontario, 2023 ONSC 5344, at para. 10; Kostiuk v. Liu, 2024 ONSC 3500, at paras. 4 and 5.
Decisions of Superior Court may be appealed to the Divisional Court or the Court of Appeal depending on the nature of the Order to be appealed and whether leave to appeal must first be obtained: see sections ss. 6 and 19 of the Courts of Justice Act. An appeal from the decision of Justice Smith to dismiss the action lies to the Court of Appeal.
Pursuant to Rule 2.1.01, the registrar is directed to send notice to the Applicant in Form 2.1A to provide the Applicant with one opportunity to explain why the Application should not be dismissed in accordance with the process set out in Rule 2.1.01(3). ....
[8] Any attempt to bring a claim in a court that has no jurisdiction to grant the relief sought qualifies as an abuse of process, even if the claim is not otherwise frivolous or vexatious: Edusei v. Philips, 2025 ONSC 4723, at para. 17.
Analysis
[9] The Divisional Court is a statutory court and has no jurisdiction other than that conferred on it by statute: Re Service Employees International Union, Local 204 and Broadway Manor Nursing Home et al., 1984 CanLII 2112 (ON CA); Wabinski v. Pickleball Ontario, 2023 ONSC 7020, at para. 2; Harris-Saunders v. Toronto, 2021 ONSC 1407, at para. 14.
[10] As indicated, the Divisional Court does not have jurisdiction to entertain an application for judicial review of a Superior Court Judge, but only those of an “inferior court”. This is by virtue of the definition of “statutory power of decision” in s. 1 of the Judicial Review Procedure Act (JRPA), which includes “the powers of an inferior court”. Judicial Review in the context of the JRPA is a public law concept that establishes a statutory court to review the decisions of tribunals and inferior courts (and other persons exercising statutory powers) to ensure that these tribunals respect the rule of law: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, at para. 13.
[11] Decisions of Superior Court judges are subject to review by the Court of Appeal or the Divisional Court by way of appeal: ss. 6 and 19 of the Courts of Justice Act.
[12] The fact that the Applicant in this case characterizes her claim as a “Charter” claim does not immunize it from Rule 2.1, nor does s. 24(1) of the Charter operate as an independent source of jurisdiction: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 SCR 863, at paras. 261-262. “Section 24(1) gives no jurisdictional or procedural guide”, Mills at para. 267.
[13] As a statutory court, the Divisional Court’s jurisdiction must be found in its enabling statute, in this case, the JRPA. The Charter does not expand these statutory limits.
[14] Since the Divisional Court has no jurisdiction to judicially review the decision of a Superior Court judge, the Application for Judicial Review is dismissed under Rule 2.1.01 as an abuse of process. There will be no order as to costs.
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