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Judicial Review - Standing - Special Interest. Mammarella v. Ontario College of Teachers
In Mammarella v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered a JR of a specific tribunal 'rule change' (not of a case decision or order), here of the 'Rules of Procedure of the Discipline and Fitness to Practise Committee' of the Ontario College of Teachers (OCT) relating to third party evidence disclosure.
Unusually, the applicant was a member of the OCT which led to a challenge to their standing to bring such an application:[4] The OCT challenges the standing of the applicant to bring this application. In any event, the OCT submits that the ambit of judicial review is limited and the decision in question is reasonable. We agree.
[5] Beginning with standing, the applicant is a member of the OCT and submits that he has private interest standing. He also submits that he qualifies for public interest standing. We conclude that he does not have either private or public interest standing in this case.
[6] The requirements for private interest standing were summarized by this Court in Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931, at paras. 42-43, also quoting from Carroll v. Toronto-Dominion Bank, 2021 ONCA 38. To have private interest standing, a person must have a personal and direct interest in the issue being litigated and must themselves be specifically affected by the issue. It is not enough that the person has a “sense of grievance” or will gain “the satisfaction of righting a wrong” or is “upholding a principle or winning a contest”.
[7] The rule in question relates to proceedings before the Discipline Committee and the Fitness to Practise Committee and the applicant is not currently the subject of either type of proceeding. He was previously the subject of discipline proceedings and brought a third party record application that was addressed applying the test in R. v. O’Connor, after which allegations of sexual abuse were withdrawn. Other allegations resulted in a finding of professional misconduct. Those discipline proceedings concluded in December 2022. The applicant submits that his prior discipline experience and current membership in the OCT are sufficient for private interest standing. We disagree.
[8] The applicant has no personal and direct interest in the rule change because he is not currently the subject of proceedings under which that rule would apply. If he were, he could attempt to challenge the rule as unfair within the context of the related discipline or fitness to practice proceedings. This application is unlike Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, where the appellant lawyer was subject to the mandatory professional development rules at issue and was suspended for non-compliance.
[9] We also do not grant the applicant public interest standing. This application for judicial review is not a reasonable and effective way to bring the issue before the courts, nor do the other factors favour granting standing: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at paras. 37, 50. If need be, the issue may be raised, in context, in the proceedings where it applies. . September 21 Inc. v Registrar, Bereavement Authority of Ontario
In September 21 Inc. v Registrar, Bereavement Authority of Ontario (Div Court, 2023) the Divisional Court considered a JR of an order against a cemetary landlord by the Registrar of the 'Bereavement Authority of Ontario' (BAO) - a body under the Funeral, Burial and Cremation Services Act, 2002 (FBCSA) - to allow a family to inter a family member on their land.
In these quotes the court reviewed the JR standing status of the landlord/applicant:Was the Applicant denied procedural fairness?
[35] The Church is not a party to this application.
[36] September 21 challenges the Order, but the interests of the Church and the Applicant should not be conflated. This is important in the context of the Registrar’s obligation to provide notice, and an opportunity to be heard. The nature and extent of the duty of fairness owed in this particular case reflects the impact on the Applicant, not the Church.
[37] As a regulator, the Registrar’s primary obligation is to regulate licensees under the FBCSA but it also has supervisory authority over cemetery operators and those who stand in the shoes of operators such as the Applicant. Under s. 5(2) of the FBCSA, the Applicant is subject to the duties of a cemetery operator. However, s. 5(2) does not afford the Applicant the rights of a cemetery operator.
[38] Even if the Applicant had standing to assert a competing interment right on its own behalf, or on behalf of some unknown unidentified person, the Registrar’s overarching duty to oversee compliance with the FBCSA and its regulations affords justification for the Order, particularly in somewhat urgent circumstances.
[39] September 21 was minimally affected by the Order given that the land in question is a cemetery which serves the single purpose of providing a place for the interment of human remains. When it purchased the property in 2019, the Applicant knew the land was subject to pre-existing interment rights. There is no evidence the lots in question are owned by any other person(s) asserting any competing interment right. Even if there was, September 21 has no right to assert such a competing claim. The Applicant had no right to interfere with or delay the interment of Louis Tsotsos.
[40] The investigative record of the Registrar was ultimately produced to the Applicant on January 25, 2022. Though this was only the day before the Order, it constitutes the communication of the evidence relied upon for the single reason recited in the Order – that the Tsotsos family had provided sufficient evidence of its interment rights. No other reason needed to be cited. . Kustka v. College of Physicians and Surgeons of Ontario
In Kustka v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered COVID RHPA judicial reviews, here 2 JR applications by a physician and 2 by patients. These reasons for decision are from a motion to quash all of them, which was granted in full.
In these quotes the court considers the JR standing of patients added to the JR application by the physician, though no remedy was sought for them:Are the Patients Necessary and Proper Parties to Dr. Kustka’s Application?
[25] Dr. Kustka has named the Patient Applicants as respondents to her applications for judicial review. She seeks no relief from the Patient Respondents.
[26] This Court recently affirmed that “[t]he parties to an application for judicial review are limited to the parties to the original proceeding with the addition of the decision maker. Where an applicant adds improper parties as respondents on an application for judicial review, this Court will remove those parties”: Macmull v. Ministry of Health, 2022 ONSC 182, at para. 7.
[27] The Patient Respondents do not fit within either recognized category of a proper respondent on an application judicial review: (i) they were not parties to any of the impugned decisions in the proceedings below, and (ii) they are not the decision maker. For the same reasons that we deny them public and private interest standing, their presence is not necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding. As a result, they are not proper parties to Dr. Kustka’s applications for judicial review.
[28] Accordingly, the applications for judicial review brought by the Patients were quashed for lack of standing and the Patients were struck from Dr. Kustka’s applications. . Laforme v. The Corporation of the Town of Bruce Peninsula
In Laforme v. The Corporation of the Town of Bruce Peninsula (Div Ct, 2021) the Divisional Court considered whether a JR applicant had standing on the concern that the matters were not of a nature so as to be 'amenable' to judicial review:Issue 2: There is no basis for this Court to quash the Town’s Decision
[63] Besides attacking the Authority’s decision to grant the permit, the applicant asks this Court to find that the Town’s decision to proceed with the project is unreasonable for the following three reasons:a. The project contravenes section 10 of the Endangered Species Act, 2007;
b. The project contravenes section 15.1.1(1) of the Environmental Assessment Act: and
c. The project contravenes section 24 of the Planning Act; [64] In my view, none of these is a proper ground for the Court interference.
Endangered Species Act, 2007
[65] Section 10(1) of the Endangered Species Act, 2007 provides that “no person shall damage or destroy the habitat of … an endangered or threatened species”. Section 17(1) of the Endangered Species Act, 2007 gives the Minister the power to grant a permit that authorizes the person to engage in activities prohibited by the Act in certain circumstances. The Act also provides for various forms of enforcement, including by way of a provincial prosecution or an order by the Minister requiring the person to stop engaging in prohibited activities.
[66] In this case, based on his expert evidence, the applicant argues that the Town’s project will harm the piping plover’s habitat and that the Town should be prohibited from proceeding with the project in the absence of a permit.
[67] For its part, the Town argues that the MECP is aware of the project and has decided that a permit is not required. In response to this argument, the applicant takes the position that the Town has not been entirely truthful in its disclosure to the MECP about the potential impact of the project on the piping plover habitat.
[68] In my view, the applicant’s request that the Divisional Court intervene on this issue on the current record misconceives the role of the Court on an application for judicial review. In making this argument, the applicant has not identified a decision made by the Town that is subject to judicial review. As the proponent of the project and as a potential applicant for a permit under the Endangered Species Act, 2007, the Town is not exercising a statutory power amenable to judicial review. Rather, it is in the same position as any private citizen who may be required to apply for a permit to carry out a project that may harm or destroy the habitat of an endangered species. Under the Endangered Species Act, 2007, the decision maker for issuing a permit and for enforcing the Act is the Minister of Environment, Parks and Recreation. At a minimum, an application for judicial review that seeks to prohibit the Town from proceeding with the project without a permit granted under the Endangered Species Act, 2007 should name the Minister as a respondent. In addition, based on the conflicting evidence on the record currently before the Court, it would not be possible or appropriate for this Court to determine whether the Town requires a permit. This is a decision to be made at first instance by the MECP, after which the applicant may have avenues of redress by way of judicial review to the Divisional Court. However, based on the current record, there is no legal or factual basis that warrants this Court granting an order prohibiting the Town from proceeding with the project in the absence of a permit under the Endangered Species Act, 2007. Judicial review is a discretionary remedy and, without the MECP as a named respondent on this application, the Court should decline to make any decision on this issue on the record currently before the Court.
Environmental Assessment Act
[69] The applicant’s argument related to the Environmental Assessment Act is similar to the argument related to the Endangered Species Act, 2007, and it falters for similar reasons.
[70] The applicant relies on section 15.1.1(1) of the Environmental Assessment Act that provides that no person can proceed with an “undertaking” unless the person complies with the environmental assessment process under the Act. Depending on the scope of the “undertaking”, different projects are subject to different levels of scrutiny. In this case, the applicant argues that, given the nature of the project, it falls under Schedule B or C of the Act, which would require a full review process, including extensive public consultation.
[71] The Town argues that this project is exempt from section 15.1.1(1) of the Environmental Assessment Act because it falls within the scope of certain types of municipal projects exempted by the Minister pursuant to an Order-in-Council. Specifically, the Town argues that this project can be categorized as falling within the scope of the Town’s routine road maintenance. Alternatively, even if some degree of consultation is required, the Town argues that it has met its public consultation obligations under Schedule B by receiving comments from members of the public and through its application for a permit to the Authority.
[72] The Environmental Assessment Act is a complex statutory scheme enforced by the MECP. In this case, there is no evidence that the applicant raised the issue of an assessment with the MECP, there is no decision from the MECP on the issue of whether an assessment is required and the MECP has not been named as a respondent to this proceeding. As with the issue of the Endangered Species Act, 2007, the Town is the proponent. It is not clear how this court’s jurisdiction to the grant the relief sought by the applicant is engaged in the absence of a decision or refusal to make a decision by the MECP. Again, without the MECP as a named respondent on this application, the Court should decline to make any decision on this issue on the record currently before the Court. . Accettone Funeral Home Ltd. v. Ajax Crematorium and Visitation Centre and Bereavement Authority of Ontario
In Accettone Funeral Home Ltd. v. Ajax Crematorium and Visitation Centre and Bereavement Authority of Ontario (Div Ct, 2021) the Divisional Court considered when a party has special standing to apply for judicial review [case cites are by numbers]:[21] Generally, only persons who were parties before the tribunal or who are directly affected by the tribunal’s decision may apply for judicial review.[2] The burden is on Accettone in this case to show that they have “some special interest, private interest or sufficient interest” in the decision or proceeding.[3]
[22] An applicant will have an interest in the proceeding where he or she has a private right that has been infringed by the respondent, or which will cause or threaten to cause special damage which extends beyond that suffered by the general public.[4] This interest may also be conferred by statute.[5]
[23] It is not sufficient to be interested in the decision. The requisite special, private or sufficient interest in the decision or proceeding will be satisfied when that party’s rights or obligations have been or could be affected more than the general public. They must be more than “interested observers”.[6] An applicant can also discharge the burden by showing the decision affected their “personal or economic rights or obligations”.[7] . Themelis v. Toronto
In Themelis v. Toronto (Div Ct, 2021) the Divisional Court considered whether a judicial review application of an arbitration award, which endorsed a union's HRC damages settlement, was barred by the Weber jurisdictional doctrine that all labour relations matters be decided under collective agreement (and thus Labour Relations Act) procedures (here the s.74 'duty of fair representation'). The court held that the jurisdiction lay with the LRA procedure, and as well that the employee has no standing to bring a judicial review:[17] It is trite law that, under the exclusive representation model of collective bargaining, only the union and employers have standing to judicially review labour arbitration awards. This court explained in Misra v. City of Toronto, 2016 ONSC 2246 (Div. Ct.), at para. 56, that there are only three narrow circumstances in which an individual employee can seek judicial review:(1) where the collective agreement expressly confers that right;
(2) where the union takes a position adverse in interest to the employee; or
(3) where the union’s representation of the employee was so unfair or deficient that the employee should be given the right to pursue judicial review. [18] Here the collective agreement clearly confers no right on an individual employee to seek judicial review. Nor was the Union’s position “adverse” to the Applicant in the relevant sense. The adversity of interest must be a fundamental conflict with the employee’s core interest. The conflict must rise to the level of making the union and the employee “opponents” in the litigation. Here, it cannot be said that the Union took any position “adverse” to the core interest of the Applicant. The Union took the position that the Applicant was not properly accommodated by the City, that he should be re-employed, and that he was entitled to damages. The fact that the Applicant wanted a good deal more money than the Union was prepared to insist upon in settlement discussions cannot qualify, without more, as an “adversity of interest” within the meaning of the second exception.
[19] Likewise, standing cannot be given under the third exception where the allegation of unfairness effectively amounts to no more than an allegation of a violation of a duty of fair representation: Vallabh v. Air Canada and Unifor Local 2002, 2019 ONSC 4016 (Div. Ct.), at paras. 35-36. To find otherwise would gut the exclusive jurisdiction of the OLRB under ss. 74, 96(4) and 114 of the LRA altogether. The third exception, therefore, is meant to capture unusual circumstances, such as where there is no statutory duty of fair representation enforceable by the OLRB. As long as allegations which, in substance, raise issues of unfair representation by the union fall within the scope of s. 74, it would be inconsistent with Gendron, Vallabh, and the exclusive jurisdiction of the OLRB to extend standing to employees under the third exception.
[20] For these reasons, I would have granted the Union’s motion on this ground as well.
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