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Judicial Review - Standing - Tribunal. Fuchigami v. Ontario College of Teachers
In Fuchigami v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered 3 related JRs where a teacher complainant challenged "three decisions of the Investigation Committee of the College of Teachers (the “Respondent”) not to refer complaints made by him about three of his colleagues (the “respondent Members”) to the Discipline Committee of the College of Teachers". The court addressed this primarily as a legal 'standing' issue, and engaged in a useful canvass of standing law in the professional discipline complainant context:Issue (a): Does the Applicant have standing to bring this application for judicial review?
[14] The Applicant was the Complainant. Unless a statute expressly provides otherwise, a complainant in a professional discipline case has no standing to challenge the substantive reasonableness of a decision not to refer a complaint to a discipline hearing. The Applicant does have limited standing to challenge this kind of discipline decision on grounds of procedural fairness:The Act makes it clear that the disciplinary process is a matter between the Association and the individual member whose conduct has been questioned. The Act is directed solely to the Association and its members; the rights, duties and responsibilities contained in the Act relate only to them. Under the investigative process contained in Part 5, a complainant is not made a party either to the investigation or the disciplinary process itself. The only parties are the Association and the member whose conduct is under investigation. Council's decision to terminate the investigation of the Engineers could have no detrimental impact on either FOR or Opron. It did not affect their personal or economic rights or obligations. They have no more interest in the conduct of the Engineers than any other member of the public. There is no lis inter partes between FOR and Opron, on the one hand, and the Association or the Engineers, on the other. Judicial review is not available in these circumstances. (Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107, para. 41; leave to appeal refused [2001] SCCA No 366). [15] As found by the Nova Scotia Court of Appeal, this principle has been widely recognized in Canadian jurisdictions:The issue of whether a complainant in a professional disciplinary matter has standing to apply for judicial review has been considered in a number of cases: Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107, leave to appeal refused [2001] SCCA No 366; Berg v. British Columbia (Police Complaint Commissioner), [2006] B.C.J. No. 1027 (BCCA), leave to appeal refused [2006] SCCA No 300); M.H. v. College of Physicians and Surgeons of Alberta, 2006 ABQB 395; Pound v. Lunney, 2007 BCSC 85; Allen v. College of Dental Surgeons of British Columbia, 2007 BCCA 75; Metropolitan Centre Inc. v. Abugov Kaspar Architecture, Engineering, Interior Design, 2007 ABQB 419; Emerman v. Assn. of Professional Engineers and Geoscientists of British Columbia, 2008 BCSC 1186; Mitten v. College of Alberta Psychologists, 2010 ABCA 159; Robichaud v. College of Registered Nurses of Nova Scotia, 2011 NSSC 379. These authorities appear to be in agreement that a non‑party does not have standing to seek judicial review of the merits of a disciplinary body's decision. Where judicial review has been found to be available, it has been limited to issues relating to procedural fairness. (Tupper v. Nova Scotia Barristers’ Society, 2013 NSSC 290, para. 31) [16] This principle has long been the law of Ontario, has been followed consistently in this court and has been applied, in particular, in cases emanating from the Respondent: Cowan v. Canadian Broadcasting Corporation, 1966 CanLII 225 (ON CA), [1966] 2 OR 309 at 311 (CA); Pieters v. Ontario College of Teachers, 2008 CanLII 5113, para. 4 (Ont. Div. Ct.); Kipiniak v. Ontario Judicial Council, 2012 ONSC 5866 (Div. Ct.); Bouragba v. Ontario College of Teachers, 2018 ONCA 6940, para. 3 (Div. Ct.). . Grus v. Renwick and Chief of Police, Ottawa Police Service
In Grus v. Renwick and Chief of Police, Ottawa Police Service (Div Court, 2023) the Divisional Court (single judge) considers the standing of a police disciple hearings officer, whose interlocutory decision was subject to JR, where the police officer applicant named them as a party:Hearing Officer as a Party
[31] Although my ruling on prematurity disposes of this matter, the issue relating to the hearing officer as a party should be addressed.
[32] The relevant section of the JRPA is permissive and states that “the person who is authorized to exercise the power may be a party to the application” [JRPA, s. 9(2)].
[33] Relevant jurisprudence has raised two considerations around the need for an adjudicator to be a party to a judicial review application. In some cases, the adjudicator may need to be a party in order to assist in fully informing the review court. Conversely, there are dangers surrounding the participation of the adjudicator as it may undermine future confidence in the adjudicator’s objectivity if they are placed in an adversarial position [Children’s Lawyer for Ontario v. Goodis (2005), 2005 CanLII 11786 (ON CA), 75 O.R. (3d) 309 (C.A.), at paras. 35-40].
[34] In the present case, the Applicant has suggested that the hearing officer should be a party in order to potentially address the seriousness of the impartiality concerns raised by the Applicant. Such a suggestion is inappropriate given that the disciplinary proceedings are still in progress. The fact that the hearing officer may be wanted to respond to questions surrounding his own impartiality is alarming to this court. Is the Applicant seeking to intimidate the hearing officer by raising issues of appearance of bias in her materials while making no such allegation in her Notice of Application for Judicial Review? The approach taken by the Applicant in this matter raises many questions.
[35] While there may be circumstances where it may be appropriate for a party to add the adjudicator as a party to a judicial review proceeding, this is not one of them. The veiled challenges to the hearing officer’s impartiality in the midst of a hearing requires that the hearing officer be sheltered from such allegations to avoid attempts to influence his future decision-making.
[36] As a general rule, it is the administrative tribunal’s right to be a party to an application for judicial review [Goodis, at para. 26]. Accordingly, it would normally be the hearing officer who may seek to have party status in the appropriate circumstances. Clearly, s. 9(2) of the JRPA does not limit the right to the administrative tribunal or decision-maker and there could be circumstances where it would be appropriate for an Applicant to do so. This was not one of those cases and the significant concerns about maintaining the objectivity of the hearing officer militated against the hearing officer having party status in these circumstances.
[37] As of the date of the Case Conference, the hearing officer was excused and did not participate in these motions where many of the allegations were made. In my view, the ongoing role of the hearing officer has been preserved. . Folz v Algoma Family Services
In Folz v Algoma Family Services (Div Court, 2023) the Divisional Court considered a JR of IPC-PHIPA adjudication denials regarding requests for personal health information held by a child protection agency, specifically, information: "... made in relation to an intensive treatment program for the Applicant’s son".
In these quotes the court cites a leading case on bias of a decision-maker, when they seek standing in a JR of their own decision:[21] Beginning with the role of the IPC in this application, the Applicant submits that while the IPC may participate, we should disregard its submissions on the reasonableness or correctness of the Decisions because it is the decision-maker. The IPC responds that because AFS is not participating in this application, and because its adjudication is inquisitorial, not simply adversarial, it should be permitted to address all issues to assist the Court.
[22] As set out in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 SCR 147, at para. 57, this issue requires a principled exercise of this Court’s discretion to determine the appropriate scope of the IPC’s participation. In exercising this discretion, this Court is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality. Focusing on this application in particular, we conclude that we do not need the IPC’s assistance on the merits of the Decisions themselves and therefore agree that the IPC’s role should not be extended to include those issues. There is no reason, in this case, to compromise the IPC’s impartiality. Note: The cited case, Ontario Power Generation (SCC, 2015), is relevant for the follow passages [italicization mine]:[55] Canadian tribunals occupy many different roles in the various contexts in which they operate. This variation means that concerns regarding tribunal partiality may be more or less salient depending on the case at issue and the tribunal’s structure and statutory mandate. As such, statutory provisions addressing the structure, processes and role of the particular tribunal are key aspects of the analysis.
[56] The mandate of the Board, and similarly situated regulatory tribunals, sets them apart from those tribunals whose function it is to adjudicate individual conflicts between two or more parties. For tribunals tasked with this latter responsibility, “the importance of fairness, real and perceived, weighs more heavily” against tribunal standing: Henthorne v. British Columbia Ferry Services Inc., 2011 BCCA 476, 344 D.L.R. (4th) 292, at para. 42.
[57] I am thus of the opinion that tribunal standing is a matter to be determined by the court conducting the first-instance review in accordance with the principled exercise of that court’s discretion. In exercising its discretion, the court is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality. . Njoroge v. Canada (Attorney General)
In Njoroge v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the 'intervention' standing of the ruling tribunal, here in a federal case:[12] I turn to the motion by the CJC to be added as a party under Rule 338 or as an intervener under Rule 109. The appellant objects to the motion on the basis that a decision maker should not be a party in a proceeding where its own decision is at issue.
[13] Rule 338 and its associated jurisprudence are not as unequivocal as the appellant contends. The opening words of the Rule are "“[u]nless the Court orders otherwise”". The appropriate role for a decision maker whose decision is in issue in a proceeding is, therefore, a discretionary decision for the Court. The factors that need to be taken into account include the stage of proceedings (whether the proceeding is on the merits or at an interlocutory stage on a procedural issue as here), the substance of the issues on appeal and whether the tribunal appreciates and clearly respects the limitations on its role. A court will also be mindful of the importance of public perception of a tribunal’s impartiality and want to ensure that, whatever the label assigned to a tribunal’s role in the proceedings, neither the perception or reality of its impartiality is compromised (Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147 at para. 57).
[14] Consistent with these considerations, tribunals ought, presumptively, to be added as interveners (Air Passenger Rights v. Canada (Attorney General), 2022 FCA 64; Lukács v. Canada (Transportation Agency), 2014 FCA 292 at para. 17; Canada (Attorney General) v. Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3 at para. 3). As interveners, tribunals often provide contextual evidence, describe their legislative framework and operating procedures and no more. The role of tribunals as interveners is not, however, invariable (Girouard v. Canadian Judicial Council, 2019 FCA 252; Lukács v. Canada (Transportation Agency), 2016 FCA 103).
[15] The objective is to assign to the party/intervener the status that most closely aligns with the principles constraining the role of tribunals on applications for judicial review of their own decisions, and the substance of the issue to be determined by the Court. In this case, the substance of the role that the CJC will be permitted to play on the appeal is the same, regardless of how it is described or labelled—whether as an intervener or respondent.
[16] In this case, several factors point to adding the CJC as a respondent. Its memorandum of fact and law makes clear that it understands and respects the limitations on its role and that it will play no part in defending the decision on the merits (although this appeal, on an interlocutory point, does not address the merits of the judicial review application in any event). Moreover, the central issue on appeal—the question of deliberative privilege—shows the CJC to be, in substance, a true respondent. Finally, there are procedural advantages and added efficiencies if the CJC is joined as a respondent; the filing dates are co-ordinated with those of the other respondent, which will hasten the perfection of the appeal.
[17] The CJC will therefore be added as a respondent to this appeal. . Taylor v. Pivotal Integrated HR Solutions
In Taylor v. Pivotal Integrated HR Solutions (Div Ct, 2020) the Divisional Court commented on the statutory right of a tribunal to be a party to a judicial review application:[24] Pursuant to s. 9(2) of the JRPA, the Tribunal has a statutory right to be a party to this application. Section 9(2) provides as follows:Exercise of power may be a party
(2) For the purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application. ...
[28] The ability of tribunals to participate on judicial review applications is well-established. The proper scope of such application may be open to debate. The courts have held that a too aggressive defence of a tribunal’s decision on the merits may be inappropriate. However, where the tribunal is the only party opposing the application, the court benefits from an adversarial presentation. As the Supreme Court of Canada held in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 at para. 54:Some cases may arise in which there is simply no other party to stand in opposition to the party challenging the tribunal decision. Our judicial review processes are designed to function best when both sides of a dispute are argued vigorously before the reviewing court. In a situation where no other well-informed party stands opposed, the presence of a tribunal as an adversarial party may help the court ensure that it has heard the best of both sides of a dispute. . Yan v. Kucan
In Yan v. Kucan (Div Court, 2022) the Divisional Court considered the s.9(2-3) standing provision of the JRPA:[3] Beginning with the request to add HPARB as a party respondent, s. 9(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides that: “For the purposes of an application for judicial review in relation to the exercise … of a statutory power, the person who is authorized to exercise the power may be a party to the application.” Subsection 9(3) then deems, for the purposes of s. 9(2), that two or more people who, acting together, may exercise a statutory power under a collective title to be a person for this purpose under that collective title. The HPARB panel that addressed the review is the “two or more people who, acting together” exercised the statutory power to review the ICRC decision, about which the applicant is seeking judicial review. No reason has been put forward that would justify not adding HPARB as a party. The motion to add HPARB as a party respondent is therefore granted.
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