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Judicial Review - Standing - Tribunal

. 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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