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Judicial Review - Prerogative Remedies - Mandamus [JRPA 2(1)1]. New Blue Ontario Fund v. Ontario (Chief Electoral Officer)
In New Blue Ontario Fund v. Ontario (Chief Electoral Officer) (Div Court, 2024) the Divisional Court illustrates some Election Finances Act procedures, here were a political party felt they were entitled to greater allowance subsidies.
Here the court considers a late-added mandamus argument, apparently asserting that the CEO's administrative response was so misconceived/inadequate as to have been 'not made' [SS: my interpretation] (the case uses the term 'reviewable', as though the 'decision' was not reviewable) [para 11]. This may have been done in an attempt to avoid the standard Vavilov JR 'reasonableness' review, as the typical successful mandamus remedy is to remit the matter 'back down' to the decision-maker (though the court didn't accept this position):The Applicants’ Position on Mandamus
[17] The Applicants submit that the CEO has misunderstood his mandatory, non-discretionary obligations under the EFA. They argue that the mandamus analysis applies on this application because the CEO was not making a decision. Rather, his role in respect of the quarterly allowance is a “purely mechanical, non-discretionary paymaster role ... tasked with carrying out the mechanics of a mandatory payment scheme.” The Applicants submit that the analysis is different from that on the more commonly encountered application for judicial review of a decision by a statutory decision-maker. They argue that mandamus analysis applies where, as here, a public official is mandated to make a payment rather than to make a decision or otherwise exercise discretion.
The Test for Mandamus is not made out
[18] In the letter sent to the CEO claiming that the quarterly allowance was owed to New Blue, its counsel took the opposite position from the position taken on this application that the CEO was not making a decision. Counsel asserted in the letter that it was the CEO’s role to determine and direct payment of this allowance and that should the quarterly allowance be declined, “we ask that you provide reasons for that decision ...” ([Emphasis added.)
[19] In the initial notice of application, the Applicants pleaded that the CEO made a decision which affected their legal rights and privileges. The style of proceeding included: “And in the Matter of a decision dated September 20, 2022 issued by the Chief Electoral Officer of Ontario pursuant to the Election Finances Act, R.S.O. 1990, c. E.7”. Paragraph 1(a) sets out the claim for relief sought: “An order quashing and setting aside the decision of the respondent Chief Electoral Officer of Ontario ...”. The grounds for relief claim that the “CEO erred in interpreting the EFA” (para. 2(n)); that the “CEO wrongly determined New Blue’s eligibility (para. 2(o)); and that the Decision of the CEO amounts to the exercise of a “statutory power of decision… within the meaning of section 2(1) of the Judicial Review Procedure Act” (para. 2(p)). [Emphasis added.]
[20] The Respondent consented to the Applicants amending their application whereby the primary claim was amended to claim mandamus relief. The grounds for relief continued to claim that the “CEO wrongly determined New Blue’s eligibility ...” but pleaded that this was purely ministerial in nature.
[21] By amending its pleading to seek an order of mandamus, the Applicants invite the court to conduct a de novo interpretation of s.32(1) of the EFA, without examining the CEO’s decision in light of submissions before him, to determine whether it was reasonable as Vavilov[2] instructs.
[22] A reviewing court must assess the “true or real nature” of an application, to distill the essence of the dispute. As Justice Stratas has explained, the “form of the pleading takes a back-seat to its substance”: Schmidt v. Canada (Attorney General), 2018 FCA 55, [2019] 2 F.C.R. 376, at para. 18, leave to appeal refused [2018] S.C.C.A. No. 253. The court assesses the pleading “holistically and practically” based on “a realistic appreciation of the practical result” sought by the applicant: (Grand River Enterprises Six Nations Ltd. v. Canada (Attorney General), 2017 ONCA 526, at para. 46).
[23] Despite claiming mandamus, the court is asked to deal with the same case that was pled in the original application. The Applicants’ real disagreement is with the CEO’s interpretation of the EFA. As the Applicants admitted in their first pleading, the CEO’s decision was an exercise of a “statutory power of decision” under section 2(1) of the JRPA. The CEO exercised his statutory authority under the EFA and decided that New Blue was not entitled to the quarterly allowance payment it was seeking. This is a decision affecting New Blue’s legal rights and entitlement to privileges under the EFA.
[24] The Applicants state in their factum that the key question for the court is: “properly interpreted, does the EFA require the CEO to pay quarterly allowances to New Blue for Q3 2022, Q4 2022 and Q1 2023?”[3] (emphasis added).
[25] Vavilov explains that when “a legislature has created an administrative decision-maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it.” Thus, when an administrative decision is challenged, the Court “should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness”: Vavilov, at paras. 24-25. The Legislature has entrusted the CEO with responsibility to answer what the Applicants have identified as the key question.
[26] The Applicants’ suggestion that s. 32.1 of the EFA is “mechanical” and “unequivocal” is undermined by its over ten pages of interpretive arguments in its factum. In any event, the CEO has the statutory authority to decide all questions that come before him, including the appropriate interpretation of the EFA. His decision on that issue is entitled to deference by this court. The purpose of an order of mandamus is to compel the decision-maker to make a decision that it has failed or refused to make. Mandamus thus lies only if no decision has yet been made: Canada (Attorney General) v. Iris Technologies Inc., 2021 FCA 244, 192 C.P.R. (4th) 171, at para. 5.
[27] As noted above, the CEO determined that New Blue was not eligible to receive any payment and gave reasons for it. The CEO interpreted the subsection as requiring the calculation to be based on the results of the 2018 election, which was the most recent election prior to 2022 Q2. This is repeatedly referred to as a “decision” in the Applicants’ pleading.
[28] We conclude therefore that the CEO rendered a reviewable decision when he wrote to New Blue informing it that it was ineligible for the quarterly subsidies covered by s. 32.1(2.1) of the EFA. There was no refusal to perform a public duty and no clear right to the performance of a duty to make the payments as required to meet the test for mandamus: Apotex v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (C.A.), 162 N.R. 177, aff’d 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100 (“Apotex”).
[29] The Applicants rely on three mandamus cases to support their reframed application:a. Sunrise North Senior Living Ltd. v. Sheriff (Regional Municipality of York), 2020 ONSC 469, 443 D.L.R. (4th) 458 (Div. Ct.) (“Sunrise”) where mandamus was ordered to compel the sheriff who had refused to evict a tenant pursuant to an order of the Landlord and Tenant Board;
b. Yassin v. Canada (Public Safety and Emergency Preparedness), 2018 FC 423 (“Yassin”) where mandamus was ordered to compel the Minister to render a decision on a request for ministerial relief; and
c. 407 ETR Concession Company Limited v. Ontario (Registrar of Motor Vehicles) (2005), 2005 CanLII 49963 (ON SCDC), 82 O.R. (3d) 703 (Div. Ct.) (“407 ETR”) where the Registrar of Motor Vehicles refused to validate or issue vehicle permits to individuals who failed to pay tolls and administrative fees owed to 407 ETR. [30] In Sunrise, at para. 56, the court sets out the eight-part test for mandamus articulated in Apotex which is not in dispute here. In both Sunrise and Yassin, the relevant decision-makers had failed to carry out an order or to render a decision and are therefore distinguishable.
[31] 407 ETR rests on the now-outdated concept of jurisdictional questions. At para. 54, the court states: “It is the court’s function to ensure the public body does not make decisions based on a misapprehension of jurisdiction.” As set out above, Vavilov has now established that there is now only a very limited category of preliminary or jurisdictional question that escapes the uniform reasonableness standard.
[32] We conclude that the test for mandamus is not met. The CEO’s decision to deny New Blue the payments it is seeking must be reviewed on a reasonableness standard, to which we now turn. . Donovan v. Human Rights Tribunal of Ontario
In Donovan v. Human Rights Tribunal of Ontario (Div Court, 2023) the Divisional Court sets out a test for mandamus:[60] This request that the court order the hearing to proceed is, in essence, a request for an order of mandamus. For an order of mandamus to be granted, the Applicant must establish four criteria:(a) the Applicant must have a clear legal right for something to be done;
(b) the duty to be performed must be incumbent on the party that the order is sought to be directed;
(c) the duty must be purely ministerial in nature; and
(d) there must be a demand and a refusal to perform the duty for which performance is being sought.[23: Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778 (Div. Ct.), at para. 12.] . Right to Life Association of Toronto v. Canada (Attorney General)
In Right to Life Association of Toronto v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal cited a leading case for the test for mandamus:[17] Mandamus is a discretionary remedy that may be granted where the applicant satisfies the eight criteria set out by this Court in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742, 162 N.R. 177 (F.C.A.), aff’d 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100, 176 N.R. 1, or in cases of severe maladministration as described in cases such as Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93 at para. 14 and D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167 at paras. 16-21 [D’Errico]. ...
[18] ... Absent extreme maladministration, courts grant mandamus "“only where the outcome on the merits is a foregone conclusion – in other words the evidence can lead only to one result”": D’Errico at para 16; Doyle v. Canada (Attorney General), 2022 FCA 56, 2022 A.C.W.S. 740. . Trigonakis v. Sky Regional Airlines Inc.
In Trigonakis v. Sky Regional Airlines Inc. (Fed CA, 2022) the Federal Court of Appeal dismissed an appeal from a successful JR application of a Canada Labour Code adjudication by an airline pilot who the airline dismissed for refusing to submit to 'fitness for duty' tests. As the leading case of Vavilov indicates, on a successful JR of a tribunal decision the normal remedy is remitting to case back down to the Board by another adjudicator, and that was the remedy granted at the Federal Court.
Stratas JA, obviously considering the airline's case to be very strong, laments the airline respondent's failure to cross-appeal seeking mandamus against the Board "requiring the new adjudicator to dismiss the appellant’s complaint on the ground that dismissal was the only reasonable result on this factual record, the legislative standard, and the contractual documents". This is a reference to Vavilov where the Supreme Court makes an exception to the normal 'remit' JR rule, when remitting "would stymie the timely and effective resolution of matters in a manner that no legislature could have intended" [Vavilov, para 142]. This use of mandamus in an adjudicative context strikes me as novel, but it's plain that Stratas dislikes the waste of court and tribunal time when a case is obvious in it's result:[13] The respondent has not cross-appealed against that disposition. In particular, it has not sought mandamus requiring the new adjudicator to dismiss the appellant’s complaint on the ground that dismissal was the only reasonable result on this factual record, the legislative standard, and the contractual documents: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 142, citing Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-30, Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1 at paras. 53-54 and Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175 at paras. 51-56 and 84. Thus, we have to leave in place the Federal Court’s disposition. . Ash v. Chief Medical Officer of Health of Ontario
In Ash v. Chief Medical Officer of Health of Ontario (Div Court, 2022) the Divisional Court considered mandamus on a motion to quash a JR, which was granted for pleadings failure:[12] To succeed on a claim for mandamus, an Applicant must establish[3]:(i) a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced;
(ii) the duty whose performance it is sought to coerce by mandamus must be actually due and incumbent on the official at the time the relief is sought;
(iii) the duty must be purely ministerial in nature – in other words, “plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers”; and
(iv) there must be a demand and a refusal to perform the act the Applicant seeks to have ordered. [13] Section 77.9 of the HPPA provides as follows:Directives to boards and medical officers
77.9 (1) The Chief Medical Officer of Health may issue a directive to any or all boards of health or medical officers of health requiring the adoption or implementation of policies or measures concerning the matters set out in subsection (2) if the Chief Medical Officer of Health is of the opinion,
(a) that there exists, or there is an immediate risk of, a provincial, national or international public health event, a pandemic or an emergency with health impacts anywhere in Ontario; and
(b) that the policies or measures are necessary to support a co-ordinated response to the situations referred to in clause (a) or to otherwise protect the health of persons.
Restriction
(2) The Chief Medical Officer of Health may only make a directive under this section with respect to measures or policies concerning,
(a) infectious diseases;
(b) health hazards;
(c) public health emergency preparedness; or
(d) a matter prescribed in regulations made by the Minister.
Compliance required
(3) A board of health or medical officer of health that is served with a directive under this section shall comply with it.
Duration
(4) Subject to subsections (5) and (6), a directive under this section is in force for the period set out in the directive, which shall not exceed six months.
Termination or renewal
(5) The Chief Medical Officer of Health may terminate a directive under this section, or renew it for one or more additional periods of not more than six months each.
Consultation
(6) The Chief Medical Officer of Health shall consult with every affected board of health and medical officer of health before,
(a) renewing a directive under this section so that it is in force more than six months; or
(b) issuing a directive identical or substantially similar to one or more directives already issued, where the effect would be that identical or substantially similar directives would be in force for the same board or medical officer of health for a total period of more than six months, whether or not they are in force for consecutive periods. (emphasis added) [14] There are at least two fundamental problems with the Applicants’ claim for mandamus that make it doomed to fail. Both relate to the nature of the CMOH’s statutory duty under s. 77.9(1) of the HPPA (assuming for the sake of argument that the authority under s. 77.9 is correctly characterized as a duty).
[15] The first problem relates to the absence of any pleading in the Application of the conditions precedent to trigger the authority of the CMOH to act under s. 77.9(1), or any evidence of the conditions precedent to trigger the authority of the CMOH to act.
[16] Section 77.9(1) creates a discretionary power on the part of the CMOH to issue directives to any or all boards of health or medical officers of health requiring the adoption or implementation of policies or measures concerning the matters set out in subsection (2).
[17] Section 77.9(1) contains a condition precedent trigger for the authority for the CMOH to act pursuant to the section. He must be of the opinion: (a) “that there exists, or there is an immediate risk of, a provincial, national or international public health event, a pandemic or an emergency with health impacts anywhere in Ontario,” and (b) “that the policies or measures are necessary to support a co-ordinated response to the situations referred to in clause (a) or to otherwise protect the health of persons.” I refer to these two opinions as the requirements of “immediate risk” and “necessity of a coordinated response.”
[18] Absent the CMOH forming the two opinions that are the conditions precedent to the CMOH having the authority to issue a directive under s. 77.9(1), he has no authority to act under s. 77.9(1).
[19] The Applicants have not pleaded that the CMOH has formed either of the condition precedent opinions regarding immediate risk and the necessity of a coordinated response. Although this is primarily a motion based on the pleadings on their face, I have also considered that in the Applicant’s affidavits filed on this motion, there is also no evidence that the CMOH has formed the condition precedent opinions required to trigger his authority to issue a directive under s. 77.9(1). Instead, the evidence proffered by the Applicants on the main Application is their affidavits, setting out, in the case of Mr. Ash, his belief that COVID-19 vaccines are harmful to children and in the case of the Northey’s, their belief that COVID-19 vaccines are not proven to be beneficial to children.
[20] In the context of this motion to quash based on the pleadings, in the absence of any pleading that the CMOH has formed the opinion required as a condition precedent to acting under s. 77.9(1) of the HPPA, there is no basis for claiming that he has any authority to act under s. 77.9(1), and certainly no duty. The Application for mandamus is therefore doomed to fail. On this basis, the Applicants’ claim for mandamus is incapable of success and must be quashed.
[21] The second problem with the Applicants’ claim for mandamus relates to the nature of the CMOH’s authority under s. 77.9(1). This section grants the CMOH the discretion to act where he has formed the necessary opinions. The CMOH may issue a directive if he forms the necessary precondition opinions. Section 77.9(1) confers discretion on the CMOH to issue a directive (he “may issue a directive” … if he “is of the opinion that….”).
[22] The discretionary nature of the authority is significant because mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way[4].
[23] Section 77.9(1) is framed as a discretion once the CMOH forms the condition precedent opinions. The Applicants’ claim for a mandamus order asks this court to direct the CMOH on how to exercise his discretion under s. 77.9(1), which is beyond this court’s jurisdiction. This court’s authority to make a mandamus order does not allow it to direct the CMOH on how to exercise his discretionary powers under s. 77.9(1). . Doyle v. Canada (Attorney General)
In Doyle v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered a request for mandamus as an appeal remedy:[5] Mandatory orders, or what the Federal Courts Act, R.S.C. 1985, c. F-7 calls mandamus, are not freely available. They are available in two narrow circumstances.
[6] First, courts can grant mandatory orders or mandamus where the "“evidence can lead only to one result”": D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167 at para. 16; Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93 at para. 14. The Federal Court noted this principle (at para. 39) and found that it could not make a mandatory order in this case (at para. 40). It found (at paras. 40-44) that an investigator will need to uncover "“additional evidence either to reconcile conflicting positions or add missing evidence”" in order to get at the merits of the appellant’s complaint. That remedial finding "“depend[ed] upon the factual appreciation and discretion of the court”" and so, absent palpable and overriding error—and there is none here—we must defer to that finding: Canada (Attorney General) v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209 at paras. 88-90.
[7] Second, courts can grant mandatory orders or mandamus in circumstances of extreme maladministration. A very high threshold must be met before relief can be granted: see D’Errico and LeBon, above. That threshold has not been met here.
[8] Under this legislative scheme, it is for the administrative actor, here the investigator, to examine the evidence, find facts and offer views on the merits of the appellant’s complaint. Absent the rare circumstances where mandamus is available, reviewing courts, such as the Federal Courts, do not do those things. They are restricted to two tasks: reviewing what the administrative actor has done and, if there has been a material procedural flaw or a substantive defect overcoming any deference that may be owed, sending the matter back to the administrative actor. See, most recently, Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19 at para. 37 and authorities cited therein. . Canada (Attorney General) v. Iris Technologies Inc.
In Canada (Attorney General) v. Iris Technologies Inc. (Fed CA, 2021) the Federal Court of Appeal considered the nature of an order for mandamus:[5] In Alberta Wilderness Association v. Canada (Attorney General), 2013 FCA 190 at paras. 34, 38-40, this Court held that rule 317 does not apply in an application for an order of mandamus. That is because the purpose of an order of mandamus is to compel the decision-maker to make a decision that it has failed or refused to make. Mandamus thus lies only if no decision has yet been made. And if no decision has yet been made, there can be no decision that is "“the subject of the application.”"
[6] An applicant seeking an order of mandamus must, therefore, rely on affidavit or other evidence to show that it meets the test set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, 1993 CanLII 3004 (F.C.A.), affirmed, 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100. . Sexsmith v. Canada (Attorney General)
In Sexsmith v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal commented on the remedy of mandamus:[40] Mr. Sexsmith seeks mandamus requiring the authorization to be granted. On the pre-conditions for mandamus, see generally Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93, citing relevant Supreme Court authority; and see also D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167. Mandamus is available only where the facts and law are such that the administrative decision-maker has no choice and must determine the matter in a particular way. As well, in rare cases, mandamus can be granted for significant maladministration or administrative misconduct. Here, neither circumstance is present. On redetermination, Mr. Sexsmith’s application could either be granted or denied depending on how the facts and the law are reasonably viewed. . Watson v. The Corporation of the Municipality of Stirling-Rawdon
In Watson v. The Corporation of the Municipality of Stirling-Rawdon (Div Ct, 2021) the Divisional Court states a simple fact regarding mandamus:[14] I do not accept this argument. The discretion about what is “necessary” to disclose and what is not is conferred on the Commissioner, not the court. Mandamus generally does not lie to compel the exercise of discretion. .... . Canadian Snowbirds Association Inc. v. Attorney General of Ontario
In Canadian Snowbirds Association Inc. v. Attorney General of Ontario (Div Ct, 2020) the Divisional Court characterized mandamus as a discretionary and unusual remedy:[83] Mandamus is an extraordinary remedy that is discretionary and is only to be utilized in situations that are exceptional (Ontario (Attorney General) v. Mazurkewich, [2000] O.J. No. 4254 at para. 49 (Sup. Ct.)). In situations where a piece of legislation, or a regulation is outside the bounds of authority provided for by statute, the general practice of the courts is to invalidate the offending subordinate legislation through certiorari or a declaration (Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para. 169, Brown and Rowe JJ dissenting in part, but not on this point). . 1582235 Ontario Limited v. Ontario
In 1582235 Ontario Limited v. Ontario (Ont CA, 2020) the Divisional Court sets out a novel use of an order of mandamus:[62] The Applicants seek a remedy quashing the Ministry’s set-off decision and ordering that the Ministry reimburse the Applicants for the facility fees that were taken pursuant to its unlawful and, therefore, unreasonable set-off decision.
[63] The Ministry argues that the Applicants’ request for reimbursement is, in effect a request for damages, something that cannot be obtained on an application for judicial review.
[64] We agree that damages are not available on judicial review. We disagree that this is what the Applicants are seeking. In this case, the only way to remedy the wrong that the Ministry engaged in is to order relief by way of mandamus, requiring the Minister to reimburse the Applicants for the monies they took by way of the set-off decision. This is not a case where remitting the matter to the Ministry to re-consider is appropriate as the result is inevitable – the option of set-off was not available to the Ministry when it made the decision it did. Nor would simply granting declaratory relief be appropriate as the Ministry would still be in possession of funds that it had no lawful right to take at the time it did. There is authority to grant relief by way of mandamus in exceptional circumstances where a decision to not do so threatens to bring the administration of justice into disrepute (see for example: D’Errico v. Canada (Attorney General)[30]). It would threaten to bring the administration of justice into disrepute if the Ministry were permitted to benefit from conduct that a court has found to be unlawful.
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