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Judicial Review - Remedies Generally [JRPA 2(1)]. Fond du Lac First Nation v. Mercredi
In Fond du Lac First Nation v. Mercredi (Fed CA, 2020) the Federal Court of Appeal, on an appeal from a judicial review application involving a First Nations election, stated that the awarding of a remedy is discretionary, and - while not necessarily agreeing with the disposition of the court below - reviewed what options it had (they were quite broad):[4] The appellant submitted that the Federal Court did not need to award a remedy in order to address the circumstances before it. The decision whether to award a remedy is discretionary: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202. And, overall, remedies awarded by a reviewing court are discretionary. Absent error of law, the discretionary remedial decisions of a reviewing court can be set aside only on the basis of palpable and overriding error: Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131, 424 D.L.R. (4th) 366 at para. 51; Canada v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209 at paras. 88-89. We are not persuaded that there was any such error here.
[5] That is not to say that we would have necessarily granted the remedial order the Federal Court did. If a similar case were to arise in the future, the reviewing court should consider all of the remedial tools at its disposal and, during argument, put a number of these to counsel. While the reviewing court must tailor its remedy to fit with the relevant elections legislation adopted by the First Nation (see, e.g., Gitxaala Nation v. Canada, 2016 FCA 187 at paras. 333-341) much scope for creativity exists. For example, strict timing requirements for implementation can be imposed to ensure that the remedial purposes are carried out quickly. It is also possible for the reviewing court to supervise the implementation of its remedy to ensure it is followed: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3. Other terms, consistent with public law values, can also be imposed: see discussion in Paradis Honey Ltd. v. Canada, 2015 FCA 89 at para. 138. However, in the end, regardless of what is decided, remedial orders should be clear and specific so they can be enforced. Those to whom they are directed need to know what constitutes compliance and what constitutes non-compliance: Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612 at para. 24. . Michalski v. McMaster University
In Michalski v. McMaster University (Div Ct, 2022) the Divisional Court considers a judicial review challenging a university's COVID vaccination policy. During this it considered the distinction between the prerogative writs [JRPA 2(1)1] and remedies for a statutory power of decision [JRPA 2(1)2]. It ultimately denied relief on discretionary grounds ["may": JRPA 2(1)]:[55] A brief discussion of the Court’s jurisdiction to hear the Application is in order before addressing the Applicants’ grounds for judicial review.
[56] Subsection 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.11 (“JRPA”) states:On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. [57] Subsection 1(1) of the JRPA defines “statutory power of decision” to mean,a power or right, conferred by or under a statute, to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party; or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not. [58] The Applicants submit that this Court has jurisdiction under s.2(1)2 of the JRPA to review the Validation Team’s decisions to deny them exemptions from the university’s mandatory vaccination policy. McMaster disputes that the impugned decisions were an exercise of a statutory power. McMaster does not contest this Court’s jurisdiction to review the decisions, but it argues that jurisdiction derives from s.2(1)1 of the JRPA because the decisions are of a kind that is reached by public law and to which a public law remedy can be applied: Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, at paras. 24 and 32.
[59] The Applicants’ submissions on jurisdiction may be summarized as follows. McMaster is a statutory body governed by An Act Respecting McMaster University (The McMaster University Act, 1976), as amended by Bill 173, Chapter 5, S.O. 2016. McMaster developed and adopted its vaccination policy in conformity with instructions issued by Ontario’s Chief Medical Officer of Health pursuant to a Regulation under the Reopening Ontario Act, 2020. McMaster’s President delegated to the Validation Team administrative and decision-making powers with respect to the evaluation of student requests for exemption from the vaccine mandate based on non-medical human rights grounds. The decision-makers who rejected the Applicants’ exemption requests were therefore exercising delegated statutory powers when they made decisions about the Applicants’ on-campus privileges and eligibility to continue to receive the benefit of their education at McMaster.
[60] This argument is not supported by the jurisprudence on the interpretation of s. 2(1)2 the JRPA. The Court of Appeal for Ontario has ruled that “it is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in the exercise of a ‘statutory power of decision’; and … that must be a specific power or right to make the very decision in issue”: Paine v. University of Toronto (1982), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.) at p.5.
[61] While it is arguable that McMaster’s adoption of its mandatory vaccination policy was an exercise of a specific statutory power of decision conferred by Regulation enacted under the Reopening Ontario Act, 2020, that issue is not before this Court because the Applicants abandoned their requests for injunctive and declaratory relief, and for an order quashing the policy. Their focus is now on quashing the Validation Team’s decisions to deny their exemption requests. They have pointed to no statute (or Regulation) that confers a specific power to make those decisions.
[62] The McMaster University Act, 1976 grants the university’s Board of Governors and Senate broad powers to adopt certain policies. It also grants McMaster’s President powers to implement university policies, but it does not explicitly address vaccination policies. Moreover, neither the university’s governing statute nor the Reopening Ontario Act, 2020 (nor any Regulations enacted pursuant to either of those laws) confers on the President a specific power to make the very decisions at issue in this case, namely whether students have established a creed-based entitlement to an exemption from the vaccine mandate. The Validation Team’s impugned decisions therefore do not constitute an exercise of a statutory power delegated from the President.
[63] The Court’s jurisdiction to make the requested order quashing the impugned decisions does not, however, depend on the Applicants establishing that the Validation Team exercised a statutory power of decision within the meaning of s. 2(1)2 of the JRPA. We agree with McMaster’s submission that the Court can take jurisdiction over the Application and may grant an order quashing the impugned decisions because the judicial review application raises issues of a public nature, and the relief sought (certiorari) is one of the prerogative writs set out in s. 2(1)1 of the JRPA. It is unnecessary to review the relevant factors leading to the Court’s determination that this matter is sufficiently public in character to bring it within the purview of public law because the parties agree that it has a sufficient public dimension.
[64] The Court therefore has jurisdiction to review the Validation Team’s impugned decisions on their merits and to order the relief sought by the Applicants. The exercise of that jurisdiction is, however, within the discretion of the Court. The permissive language in s.2(1)1 of the JRPA (“the court may … by order grant any relief”) continues the longstanding discretionary nature of judicial review and of certiorari as a prerogative remedy: Strickland v. Canada (Attorney-General), 2015 SCC 37, [2015] 2 S.C.R. 713, at paras. 37-38.
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