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Judicial Review - Remedies Generally [JRPA 2(1)]. Apitipi Anicinapek Nation v. Ontario [IMPORTANT re constitutional Divisional Court jurisdiction]
In Apitipi Anicinapek Nation v. Ontario (Ont Div Ct, 2025) the Ontario Divisional Court allowed a Crown motion, here seeking "to quash part of the underlying application for judicial review for lack of jurisdiction".
The court considers whether it (as the Divisional Court in a JR) has jurisdiction to consider a Constitution Act s.52(1) declaration remedy, here in an indigenous context:[15] The moving parties therefore move to strike out those parts of the notice of application for judicial review that seek relief under s. 52 of the Constitution Act, 1982, as set out in the notice of motion, and the related notice of constitutional question. The AAN disagrees, submitting that the Divisional Court has jurisdiction.
[16] The substantive jurisdiction of the Divisional Court is statutory. It is a court of review. It has statutory appellate jurisdiction as set out in the Courts of Justice Act, R.S.O. 1990, c. C.43 (the CJA) and other statutes, which is not at issue here. Its jurisdiction on applications for judicial review, which is at issue here, is found in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the JRPA).
[17] Contrary to the AAN’s submissions, the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge. Nor does r. 14.05 of the Rules of Civil Procedure expand the Court’s substantive jurisdiction on an application for judicial review: J.N. v. Durham Regional Police Service, 2012 ONCA 428, at para. 16.
[18] Section 2 of the JRPA sets out this Court’s jurisdiction for an application for judicial review. It is limited to applications for an order “in the nature of mandamus, prohibition or certiorari”, and other proceedings for a declaration or injunction “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”. The Constitutional Challenge put forward in this application for judicial review does not fall within this jurisdiction.
[19] The JRPA defines “statutory power” and “statutory power of decision” in s. 1. The closest the Constitutional Challenge comes to falling within that definition is the general reference to regulations as part of the LARIA “Regime”. However, the application for judicial review does not assert that any regulation made under LARIA is unauthorized or invalid. The AAN is concerned about the absence of a statutory power to proceed with its proposal to the MNR under LARIA. The AAN seeks an order that the LARIA Regime be amended within one year after the requested s. 52 declaration to provide for the duty to consult under s. 35 to be triggered and met.
[20] With respect to s. 35 of the Constitution Act, 1982, legislation and the exercise of statutory powers must comply with s. 35. However, s. 35 is not itself a statutory power under the JRPA: Whiteduck v. Ontario, 2023 ONCA 543, para. 60; JRPA, s. 1; Legislation Act, 2006, S.O. 2006, c. 21, Sch F, s. 87.
[21] Further, the legislative process at large is not the exercise of a statutory power: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at paras. 2, 18, 33, 38, per Karakatsanis J; Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161 (Div. Ct.), at para. 38.
[22] Nor is this a question of which procedure is preferrable. “Once jurisdiction is determined, then the procedure to be followed is the procedure prescribed in the forum with jurisdiction”: Alford v. Law Society of Upper Canada, 2018 ONSC 4269, at para. 45.
[23] The AAN further submits that this Court may hear the Constitutional Challenge because it is ancillary to the judicial review of the Decision. Most germane are two decisions of this Court: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 and Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708.
[24] In Mississauga First Nation, at para. 54, the Court found that a constitutional challenge to amendments to legislation was ancillary to and dependent on the determination of the duty to consult in a judicial review application. However, in that case, the Court found that there was a refusal to exercise a statutory power, based on an unreasonable delay of about three years in addressing the application for judicial review, during which time the legislation was amended to remove a key statutory provision. Similarly, in Regional Municipality of York, an environmental assessment was pending for several years during which an amendment was passed that rendered the matter moot.
[25] We do not have like circumstances in this case. There was no inter-related step taken after the Decision to undermine the challenge to the Decision in this application for judicial review. The Constitutional Challenge to the entire Regime, and related request that the Regime be amended, is not merely support for the judicial review. It is a request for broad primary relief including legislative amendments and should be decided by a Superior Court judge. The provincial superior courts have always occupied a position of prime importance to rule on the constitutional validity of legislation: MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at pp. 752-753. The cases relied upon by the AAN do not approach what would be needed to show that the Constitutional Challenge is ancillary to this application for judicial review.
[26] Having considered all the AAN submissions, we conclude that the Constitutional Challenge plainly does not fall within the jurisdiction of this Court under s. 2(1) of the JRPA. That claim is properly addressed before the Superior Court, not in this application for judicial review.
[27] In reaching this decision, we have taken into account the importance of s. 35 of the Constitution Act, 1982, and all that it serves, as well as the importance of access to justice. While those principles do not expand the Court’s jurisdiction as broadly as is suggested by the AAN on this motion, they are reasons to exercise our jurisdiction to transfer the Constitutional Challenge to the Superior Court along with terms to facilitate a smooth transfer. . Gratton-Masuy Environmental Technologies Inc. v. Ontario
In Gratton-Masuy Environmental Technologies Inc. v. Ontario (Ont CA, 2010) the Ontario Court of Appeal dismissed a plaintiff's appeal, here brought against a Divisional Court order that "allowed the respondents' appeal from the motion judge's decision [SS: which struck the claim in part on a R21 motion], dismissed the appellants' action against the Commission and struck the statement of claim as against the Subcommittee Members and the Crown."
Here the court finds (applying the 'Westlake' test) that the Building Materials Evaluation Commission was not suable [paras 42-47]). It further finds that it was neither subject to declarations or injunctions - though "where declaratory or injunctive relief in the nature of certiorari, mandamus or prohibition is claimed" (ie. in a JR context) they still may be 'liable' [para 52]:(iii) Declaratory and injunctive relief
[48] The appellants argue, however, that Westlake has no application in this case as it involved a suit for damages against a statutory entity rather than claims for declaratory and injunctive relief, as sought in this case against the Commission. They submit that so long as they do not claim damages against the Commission, declaratory and injunctive relief may be sought against it by way of action. They further contend that even where, as here, part of the relief claimed against the Commission implicates relief afforded by the prerogative writs, the common law right of action for declaratory relief remains available. I would not give effect to these arguments.
[49] In Smith v. New Brunswick (Human Rights Commission), 1997 CanLII 17791 (NB CA), [1997] N.B.J. No. 29, 143 D.L.R. (4th) 251 (C.A.), leave to appeal to S.C.C. dismissed [1997] S.C.C.A. No. 169, the New Brunswick Court of Appeal considered the viability of an action against the New Brunswick Human Rights Commission in which damages as well as declaratory, Canadian Charter of Rights and Freedoms and other relief were sought. Writing for a unanimous court, Bastarache J.A., as he then was, applied Westlake, observing that it "has been followed consistently" (at p. 254 D.L.R.). He concluded that the Human Rights Commission, as a statutory body exercising quasi-judicial functions, was "clearly not a suable entity" (at p. 257 D.L.R.) and stated, at pp. 256-57 D.L.R.:[C]ounsel for the Commission drew a distinction between claims seeking civil remedies against the Commission, and claims that are aimed at reviewing the decisions of the Commission because it acted without jurisdiction or lost jurisdiction because of the manner in which it acted. This raises the question of the appropriateness of striking out the portion of the Statement of Claim whereby Mr. Smith seeks a declaration that the affirmative action program instituted by the University of New Brunswick, and approved by the Commission, is of no force and effect, and that the Commission's decisions dismissing his complaints are of no force and effect. Stated differently, [page335] the question is whether Mr. Smith can avoid the application of Rule 69 of the Rules of Court [See Note 2 below] by asking for a declaration in the context of an action. I agree with the position taken by Jones and de Villars who have addressed this question at pp. 555-56 of their above-mentioned book [Principles of Administrative Law, 2nd ed. (Toronto: Carswell, 1994)].Given the flexible nature of the declaration, there are few limitations on its availability. When proceedings for a declaration are brought by way of action, the statutory body must have sufficient legal personality to be sued in its own right. For example, in B. v. Department of Manpower and Immigration, Commissioners of Inquiry, (1975) 1975 CanLII 2216 (FC), 60 D.L.R. (3d) 339 (Fed. T.D.), the Federal Court held that a declaration is not available against a federal board or tribunal unless its enabling legislation expressly states that it is a suable entity. Therefore a declaratory judgment is not available against such a delegate although it may be amenable to certiorari or prohibition. It is also generally agreed that a declaration is not available to correct an error of law or fact committed within a tribunal's jurisdiction. A declaration of invalidity cannot be granted by the court (unless any error was found to be patently unreasonable). In such an event, the only effective remedy would be certiorari wh ich enables the court to quash the decision of the tribunal when it is established that the tribunal exceeded its jurisdiction or erred in law within its jurisdiction. Nor, it appears, could the Court grant a declaration as to the applicant's rights in such a situation as the tribunal has made an ostensibly binding decision. [See Note 3 below] (Emphasis added) [50] The New Brunswick Court of Appeal therefore dismissed the plaintiff's action in its entirety, including his claims for declaratory relief. In my view, the reasoning in Smith is apposite in this case.
[51] I also note that Hollinger involved an action for declaratory and injunctive relief as against the Ontario Labour Relations Board, rather than an action for damages. Nonetheless, as the Board was not a suable entity, this court held that the action could not proceed.
[52] In my view, the appellants urge an unduly restrictive interpretation of Westlake. Nothing in Westlake suggests that the liability to suit of non-corporate statutory entities is augmented where declaratory or injunctive relief in the nature of certiorari, mandamus or prohibition is claimed. On the contrary, Westlake [page336] holds, at p. 538 O.R. (H.C.J.), that the fact that the actions or proceedings of a statutory entity are subject to review by way of the extraordinary remedies does not mean that the same entity is legally capable of being sued in an action for damages.
[53] And, as the respondents point out, Westlake does not say that an action for the extraordinary remedies of certiorari, mandamus or prohibition may be brought against non-corporate statutory entities. Rather, it contemplates "proceedings" for such remedies. Nor does Westlake stand for the proposition that where review of the conduct of a non-corporate statutory entity is available by way of an application for judicial review, an action for declaratory or injunctive relief against the same entity is also available. Indeed, in my view, Westlake suggests to the contrary.
[54] In the early 1970s, legislative reform of judicial review was introduced in Ontario under the JRPA. Under s. 2(1) of the JRPA, public and private law remedies -- with the exception of damages -- are integrated under a single form of proceeding in respect of any exercise of statutory power. [See Note 4 below] Section 2(1) states:2(1) 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. [55] The Divisional Court in this case was alive to the different types of relief sought by the appellants against the various respondents. For example, at para. 24 of its reasons, it observed that the relief claimed against the Commission excluded damages but included the extraordinary remedy of prohibition. In fact, the relief claimed includes a prohibitory injunction, which is similar in effect to the writ of prohibition. The Divisional Court concluded that relief in the nature of prohibition must be sought against the Commission by way of judicial review, rather than by way of action. I agree. This conclusion is entirely consistent with Westlake and Smith.
[56] As well, under s. 7 of the JRPA, an application for an order in the nature of mandamus, prohibition or certiorari is [page337] deemed to be an application for judicial review and "shall be made, treated and disposed of as if it were an application for judicial review". I note that the appellants were unable to point to any authority in which prohibition was sought against a statutory entity by way of action rather than judicial review.
[57] Historically, private law remedies were seen as distinct from the prerogative remedies when they were sought to be invoked concerning the exercise of powers subject to public law. As Jones and de Villars comment in Principles of Administrative Law, 5th ed., supra, at p. 640:Certiorari and prohibition are now used exclusively to control the exercise of statutory authority and are confined to the public law field. They play no part in private law . . . On the other hand, a person may sometimes seek one of the private law remedies . . . in the context of an illegal governmental action, instead of obtaining certiorari or prohibition. (Footnotes omitted; emphasis added) [58] Later in the same text at pp. 755-57, Jones and de Villars emphasize that the use of the private law remedy of a declaration as a supervisory remedy in public law -- a relatively recent development -- is an alternative form of proceeding to an application for certiorari or prohibition.
[59] With the advent of the JRPA, however, the adaptation of declaratory and injunctive relief as public law remedies was entrenched by statute. Thus, under s. 2(1) of the JRPA, above- quoted, the court is empowered in the exercise of its discretion to grant such relief on a judicial review application.
[60] In this case, as I have said, the appellants seek both declaratory and injunctive relief against the Commission. They argue that the common law right of action for such relief was not abrogated by the JRPA and, further, that the jurisdiction of the Superior Court of Justice under the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA") to grant declaratory relief extends to the acts or omissions of both the Crown and statutory bodies like the Commission.
[61] There is no dispute that under the PACA, declaratory, although not injunctive, relief is available in a proceeding against the Crown in respect of the rights of the parties. Further, the Ontario Superior Court's jurisdiction pursuant to ss. 11(2) and 97 of the CJA [See Note 5 below] to make "binding declarations of right" and to exercise the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario is beyond controversy. [page338]
[62] But this does not mean that the Superior Court's jurisdiction to grant declaratory relief can be invoked in an action against a defendant that does not have the legal capacity to be sued in its own right.
[63] There is authority for the proposition that the JRPA does not preclude an action for a declaration in relation to the exercise of a statutory power: see, for example, Campbell Soup Co. v. Ontario (Farm Products Marketing Board) (1975), 1975 CanLII 582 (ON SC), 10 O.R. (2d) 405, [1975] O.J. No. 2501 (H.C.J.), at para. 115, affd (1977), 1977 CanLII 1857 (ON CA), 16 O.R. (2d) 256, 77 D.L.R.(3d) 725 (C.A.). Indeed, as the motion judge noted in this case, s. 8 of the JRPA, which authorizes the summary disposition of an action for a declaration or injunction as if it were an application for judicial review in certain circumstances, recognizes that such an action may be brought: Campbell Soup, at para. 115. Furthermore, s. 2(1) of the JRPA does not say that the grant of a declaration or an injunction in respect of administrative action may only be obtained pursuant to the JRPA.
[64] Yet nothing in Campbell Soup or the JRPA derogates from the central principle that suability is a prerequisite to the court's jurisdiction to entertain the claims advanced by a plaintiff against a defendant. As the New Brunswick Court of Appeal said in Smith, at p. 256 D.L.R., in the context of Charter claims, "[I]n all cases, the Court must have jurisdiction over the party being sued before it can deal with the claim being made. The test in Westlake is applicable to determine this issue."
[65] The same point is made by J.M. Evans and D.J.M. Brown in Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998), at 1:8200, note 470:"[A]n injunction may not issue against a tribunal or other administrative body eo nomine [by or in that name] that is not a suable entity." The authors elaborate, at 4:2400:Unless they are incorporated or their constitutive statute provides otherwise expressly or by implication, independent administrative agencies are not legal entities. However, as with other unincorporated entities, there are legislative provisions enabling them to be made respondents in those jurisdictions where the law of judicial review has been reformed. For example, Ontario's [JRPA] provides that for the purpose of an application for judicial review in relation to the exercise or non-exercise of a statutory power, "the person who is authorized to exercise the power may be a party" [s. 9(2) of the JRPA], and any two or more persons who, acting together, may exercise a statutory power, whether styled a board or commission or by any other collective title, shall be deemed to be a person under such collective title [s. 9(3) of the JRPA]. (Footnotes omitted) [page339] [66] The appellants rely especially on Bingo Enterprises Ltd. v. Manitoba (Lotteries and Gaming Licensing Board), 1983 CanLII 3648 (MB CA), [1983] M.J. No. 57, 23 Man. R. (2d) 33 (C.A.) and Seaway Trust Co. v. Ontario (1983), 1983 CanLII 1780 (ON SC), 41 O.R. (2d) 501, [1983] O.J. No. 2211 (Div. Ct.), revd (1983), 1983 CanLII 1749 (ON CA), 41 O.R. (2d) 532, [1983] O.J. No. 2210 (C.A.), leave to appeal refused [1983] S.C.C.A. No. 127, 52 N.R. 235, to contend that the Commission is liable to suit for declaratory and injunctive relief notwithstanding the provisions of the JRPA.
[67] These cases do not assist the appellants. In Bingo Enterprises, the court relied on Westlake to strike a statement of claim in which damages and injunctive relief were sought against a non-corporate statutory entity on the ground that the entity in question lacked suable status. However, the court held that an originating notice of motion, in which declaratory relief was claimed against the same entity, was an acceptable alternative to a claim for mandamus. Thus, while the court recognized that declaratory relief could be sought against the relevant entity, recovery of that relief by way of action was not permitted and an originating notice was held to be the appropriate procedure.
[68] As to the decision of this court in Seaway Trust, that case involved an application by the Attorney General of Ontario and others to quash two applications for judicial review regarding the validity of legislation enacted by the Government of Ontario that permitted the seizure and control of a trust company's property, without a hearing, in certain circumstances. Both applications sought declaratory and injunctive relief, including Charter-based relief and, in one application, damages were sought for property wrongfully seized. The Attorney argued that the applications as constituted sought relief available by way of action and not available by way of application to the Divisional Court. In other words, unlike this case, the Attorney sought to compel an action and to prevent judicial review.
[69] A majority of the Divisional Court in Seaway Trust dismissed the Attorney's application. However, in dissent, Craig J. held that the Attorney's application should be granted and the judicial review applications quashed since all the relief claimed could be sought in an action, whereas part of the relief -- for example, the determination of liability and the assessment of damages -- was not available in the Divisional Court. In Craig J.'s opinion, in these circumstances, it was inappropriate to allow the judicial review applicants to "split their cases and dispose of the issues piecemeal" (at p. 532 O.R.).
[70] An appeal to this court was allowed, essentially for the reasons of Craig J.: (1983), (C.A.), supra. However, in allowing the appeal, this court emphasized, at p. 533 O.R., the "highly [page340] unusual", indeed "unique", factual circumstances of the case and further commented, "[A] wide variety of diverse and compelling interests are involved . . . an extensive review of evidence will be required before a conclusion can be reached regarding the validity of the impugned legislation. Findings of fact based upon assessments of credibility will have to be made." All these compelling factors favoured resort to trial, rather than to the judicial review process.
[71] Given its "highly unusual" and "unique" facts, I do not regard Seaway Trust as establishing any general principle that relief otherwise available on judicial review may be sought alternatively by way of action. Nor, in my view, should Seaway Trust be viewed as a precedent for such a principle in circumstances where the relief claimed against one defendant is within the jurisdiction of the Divisional Court, while some or all the relief claimed against other defendants is not. More importantly, the named respondents in the judicial review applications at issue in Seaway Trust and, thus, the proposed defendants in the action urged by the Attorney in that case, were all suable entities. As a result, unlike this case, no question regarding the court's jurisdiction over the person of the respondents or proposed defendants arose in Seaway Trust.
[72] I note that the other Ontario authorities relied on by the appellants involve either corporate or non-corporate defendants who meet the Westlake test for suability, including the Crown, or applications under s. 8 of the JRPA. [See Note 6 below] . 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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