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Quashing a Judicial Review Application. Whearty v. Waypoint Centre for Mental Health Care
In Whearty v. Waypoint Centre for Mental Health Care (Div Court, 2024) the Divisional Court dismissed a motion the quash (styled as 'strike') a JR, here from an HRTO order that ordered counsel for a party to remove themselves due to the appearance of conflict:[4] Mr. Whearty has filed an application for judicial review of the interim decision removing Ms. Kronis as his counsel. The Human Rights Tribunal has brought this motion to strike the judicial review application on the basis that it is premature.[1]
[5] An application for judicial review will not be struck unless it is “plain and obvious” that the application cannot succeed: Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150, at para. 18. . Casa Loma Residents Association v. 555 Davenport Holdings Inc.
In Casa Loma Residents Association v. 555 Davenport Holdings Inc. (Div Court, 2024) the Divisional Court sets out a test for quashing a JR:[6] There is a threshold test for a motion to quash, and the threshold is high. The moving party must show that the leave motion is manifestly devoid of merit and that it is beyond doubt that the judicial review would fail: Schmidt v. Toronto-Dominion Bank, 1995 CanLII 3502 (ON CA); Certified General Accountants Association of Canada v. Canadian Public Accountability Board, 2008 CanLII 1536 (ON SCDC). ... . Ontario Place for All Inc. v. Ontario Ministry of Infrastructure
In Ontario Place for All Inc. v. Ontario Ministry of Infrastructure (Div Court, 2024) the Divisional Court allows a motion to quash a JR:Is it plain and obvious the application cannot succeed?
[6] The court may quash an application for judicial review where it is plain and obvious or beyond doubt that the application cannot succeed: Democracy Watch v. Ontario Integrity Commissioner, 2021, ONSC 7383, at para. 27; Ye v. Toronto District School Board, 2023 ONSC 2918, at para. 18. . Connor Engels v. Office of the Independent Police Review Director
In Connor Engels v. Office of the Independent Police Review Director (Div Court, 2024) the Divisional Court granted a motion to quash a JR, here of a decision of the Law Enforcement Complaints Agency (LECA) (formerly the OIPRD) that upheld a Toronto police chief decision regarding their complaint:[7] This court will only quash an application for judicial review if it is plain and obvious the application will fail: Unimac-United Management Corp. v. Metrolinx, 2016 ONSC 2032 at para. 8. I am satisfied that Mr. Engels’ application for judicial review of the Toronto Police Service investigation is bound to fail and should be quashed. To understand this conclusion, I must review the chronology of Mr. Engels’ complaint and the provisions of the Police Services Act, R.S.O. 1990, c. P.15 in some detail.[1] . Guillaume v Chief Animal Welfare Inspector
In Guillaume v Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered an R2.1.01 frivolous and vexatious motion, here to quash a JR:[14] The Court of Appeal for Ontario has repeatedly highlighted that the dismissal of a proceeding as abusive under r. 2.1.01 is a blunt instrument, reserved for the “clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8; Khan v. Law Society of Ontario, 2020 ONCA 320, 446 D.L.R. (4th) 575, at para. 6; Hart v. Balice, 2022 ONCA 787, at para. 7.
[15] An application for judicial review should be dismissed as frivolous, vexatious and/or an abuse of process if it cannot possibly succeed or be of any benefit to the applicant: Awada v. Allstate, 2021 ONSC 8108 (Div. Ct.), at para. 6. . Ye v Toronto District School Board
In Ye v Toronto District School Board (Div Court, 2023) the Divisional Court sets out the test for a motion to quash a JR:The Test on a Motion to Quash
[18] The test on a motion to quash an application for judicial review is whether it is “plain and obvious” or “beyond doubt” that the application cannot succeed: Democracy Watch v. Ontario Integrity Commissioner, 2021 ONSC 7383 (Div. Ct.), at para. 27. This standard applies to issues of standing, jurisdiction, justiciability or other defects on the face of the Application: Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778 (Div. Ct.), at para. 8. . 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 quashing a JR:The Test for quashing an Application for Judicial Review
[8] The test on a motion to quash an Application for judicial review is whether it is “plain and obvious” or “beyond doubt” that the Application cannot succeed[1]. This standard applies to issues of standing, jurisdiction, justiciability, or other defects on the face of the Application[2]. The test is the same as on a Rule 21 motion to strike an action. . Canada (Attorney General) v. Iris Technologies Inc.
In Canada (Attorney General) v. Iris Technologies Inc. (Fed CA, 2022) the Federal Court of Appeal considered the test for quashing (striking) a judicial review application:[2] An application for judicial review will be struck out when it is bereft of any possibility of success (Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 47 and 91 [JP Morgan]). In applying this standard, a court is to read the application holistically and realistically with a view to determining the real essence of the application (at para. 49). . Air Passenger Rights v. Canada (Transportation Agency)
In Air Passenger Rights v. Canada (Transportation Agency) (Fed CA, 2020) the Federal Court of Appeal set out the threshold for striking an application for judicial review:[12] In Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, (JP Morgan) this Court noted that the threshold for striking an application for judicial review is high:47 The Court will strike a notice of application for judicial review only where it is "so clearly improper as to be bereft of any possibility of success" [footnote omitted]: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 (C.A.), at page 600. There must be a "show stopper" or a "knockout punch" — an obvious, fatal flaw striking at the root of this Court's power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117, at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286, at paragraph 6; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.
48 There are two justifications for such a high threshold. First, the Federal Courts' jurisdiction to strike a notice of application is founded not in the rules but in the Courts' plenary jurisdiction to restrain the misuse or abuse of courts' processes: David Bull, above, at page 600; Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 18 C.C.L.I. (5th) 263. Second, applications for judicial review must be brought quickly and must proceed "without delay" and "in a summary way": Federal Courts Act, above, subsection 18.1(2) and section 18.4. An unmeritorious motion — one that raises matters that should be advanced at the hearing on the merits — frustrates that objective. . Barclays Bank PLC v. Devonshire Trust
In Barclays Bank PLC v. Devonshire Trust the Court of Appeal stated the test for quashing a judicial review application:[9] The test on a motion such as this to quash an application for judicial review is the plain and obvious test. In Deeb v. IIROC, [2012] O.J. No. 691, Pepall J. (as she then was) in quashing a motion for judicial review stated:32 The test on a motion to quash is whether it is plain and obvious that the application cannot succeed: Adams v. Canada, 2011 ONSC 325 (CanLII). Is it beyond doubt that the application for judicial review will fail?
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