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Judicial Review - JR-Damage Option [JRPA 8] 1. Overview
The third jurisdictional option, which I call the 'JR-damage' option, is little-known and under-utilized. It was recently highlighted in the case of Skof v. Bordeleau (Ont CA, 2020) where Nordheimer JA pointed out that JRPA s.8 (which is frankly, horribly-written) countenanced the bringing of Superior Court actions (ie. normal 'lawsuits') with a specific added judicial-review (JR) remedy. This judicial review (JR) remedy is a declaration and/or injunction regarding the "exercise, refusal to exercise or proposed or purported exercise of a statutory power", which you may be familiar with from s.3 ['Remedies']. It's the JRPA 2(1)2 remedy, which I refer to as the 'Statutory Powers Injunctions and Declaration Remedy'. Of the two JR remedies this is the more commonly-used, more than the 'prerogative writ' [JRPA 2(1)1] remedy.
The advantage of the JR-damage option is that it is filed in the Superior Court (rather than the Divisional Court), a court that has full plenary jurisdiction, including that over damages. Most lawsuits are all about damages, so this makes the JR-damage option very attractive to many. Who, injured by a negative tribunal ruling, doesn't want to sue those involved as well?
2. Breaking Down JRPA Section 8
However, as mentioned JRPA s.8 is horribly-written. Understanding it's aspects takes some careful consideration. After such consideration I summarize it's operation as follows:
(a) It's an Action, not an Application
Section 8 deals with an action in the Superior Court that seeks a JRPA 2(1)2 remedy, that is "a declaration or injunction, or both" where "the exercise, refusal to exercise or proposed or purported exercise of a statutory power" is involved (a 'JR remedy'). Actions are the more common of court proceedings (the 'lawsuit'), as opposed to applications - most JRs are applications.Note: While this JR Guide addresses application procedures, action procedures (ie. for the typical lawsuit) are huge and not addressed in this Guide. See Superior (Civil) Court . (b) The Action May, but Need Not, Include Other Relief
This action may, but need not, include other relief. For example, the plaintiff may include a damage claim - or not, the essence of a JRPA s.8 action is that the 'statutory powers injunctions and/or declaration remedy' is there.
(c) Summary Application Optional to a Party
On application of a party [the "summary application"], the JR remedy shall be treated and disposed of 'summarily', "as if it were an application for judicial review".
It took me some time to figure out what s.8 meant by 'summary'. At first I thought this related to the current R20 'Summary Judgment' (or it's predecessors), but s.8 pre-dates the current summary judgment rules (which were amended in 2010). I think the meaning lies in the reference: "as if it were an application for judicial review", as this suggests that JR procedures themselves are considered 'summary'. That makes sense since - in the larger Rules of Civil Procedure (RCP) context - of the two main civil proceedings, actions and applications, applications can be considered 'summary'. Applications [R38] are designed to avoid the traditional evidentiary trial (though they still usually have a submissions hearing), and other evidentiary aspects such as discovery. Applications are affidavit and factum-based legal proceedings.
(d) Optional 'Application' Transfers
It was only after I considered this next portion of s.8 that I felt confident that I'd concluded correctly on the 'summary' issue. Upon being faced with such a s.8 action - and a subsequent party moving to treat it 'summarily' - the court has the options [ie. "may"] of transferring the proceeding to either of two forms of application:. transferring the hearing to the Divisional Court [see 'Main Option'], or
. granting leave for it to be disposed of in accordance with JRPA 6(2) [see 'Urgent' Option]. These are the first two options [1 ans 2] that I set out in this section. Both are 'applications', and therefore the wording: "direct that the action be treated and disposed of summarily" [JRPA s.8], is consistent with my thinking that 'summary' means 'application'. The structuring of the 'optional transfers' portion of JRPA s.8 allows the Superior Court to steer the case 'back on track' either through the 'normal' JRPA 2(1) route, or - if necessary - the so-called 'urgent' JRPA 6(2) route.
3. What if No 'Summary Application' is Brought?
There's more.
It seems implicit that - if no party brings a 'summary application' - that the action may continue to proceed (in a non-summary manner) like a typical action in the Superior Court, both with respect to the JR remedy and any other relief - if sought. Naturally, the most interest regarding other Superior-Court remedies will certainly be that regarding damages, the most common Superior Court action remedy - this is why I have labelled this procedural option the "JR-Damage" option.
But let's follow through on this possibility in likely practice. Any s.8 JR-damage 'action' is almost certainly going to name - as defendants - a government-type party and even the tribunal. No such defendant will welcome a damage claim against itself, and thus they would try to steer the proceeding to one of the two 'application' routes, routes which lack any damage jurisdiction. There is no guarantee that they would succeed, particularly if the plaintiff has a strong damage case - but that's a matter to be decided on any particular case.
My suspicion is that historically JRPA s.8 'died a natural death' with the growth of the ubiquitous 'good/bad faith' government immunity protections, those that protect government ministries, tribunals and agencies across legal Ontario from lawsuits [eg. Ministry of Community and Social Services Act, s.4(3); Ministry of Agriculture, Food and Rural Affairs Act, s.6(1); Residential Tenancies Act s.223, 226.3, 232]. But now, with the evolution of administrative law to encompass the tort of abuse of process for administrative failings [see Abrametz v Law Society of Saskatchewan v Abrametz (SCC, 2022), paras 73-102], the tort of misfeasance in public office (for example) and other torts - the 'good faith immunity' protections may be (thankfully) waning.
Where such a government 'summary application' fails, or where none of the parties' make a 'summary application' themselves, the whole matter can thus be heard in Superior Court - including the JR aspects. The times may be ripe for a resurrection of the JR-damage JRPA s.8 claim.
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