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Judicial Review - Statutory Powers - Declaration [JRPA 2(1)2]. Caruso v. The Law Society of Ontario
In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.
In these quotes the court considers it's discretionary JR jurisdiction over a challenge to the LSO By-laws:Court’s Jurisdiction
[29] In the ordinary course, this issue (the proper interpretation of By-Law 4) would come to the Divisional Court as an appeal under s. 49.38 (b) of the Law Society Act from a discipline proceeding against a paralegal who did not comply with the LSO’s interpretation of By-Law 4.
[30] In the present case, the parties have agreed that the matter can proceed to the Divisional Court, even though Mr. Caruso was not subject to a discipline proceeding.
[31] The enactment of By-Law 4 by the LSO was clearly an “exercise ... of a statutory power”, within the meaning of s. 2(1) 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), and the remedy sought by the Applicant is a declaration in relation to that exercise of a statutory power, bringing the relief requested within the jurisdiction of the Divisional Court under ss. 2(1) and 6(1) of the JRPA.
[32] While there may be some circumstances where it would be preferable to wait for an appeal from a Law Society Tribunal discipline hearing before the Divisional Court weighs in on the merits of the declarations sought, I am satisfied that this is not such a case. Firstly, the Law Society’s interpretation of By-Law 4 has been made abundantly clear to its members. Second, that interpretation has already been accepted by the Law Society Tribunal in other discipline cases: Law Society of Upper Canada v. Ghaneshirazi, 2017 ONLSTH 208, at paras. 7 and 12; Law Society of Ontario v. Belovari, 2023 ONLSTH 33, at paras. 41 and 43. In these circumstances, it is neither necessary nor appropriate to require Mr. Caruso to violate the clear direction of the Law Society and invite disciplinary proceedings before permitting him to seek the declarations sought in this case. . Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks)
In Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks) (Div Court, 2023) the Divisional Court considered a unique JR application brought by a municipality against Ontario. After a prolonged delay in responding to the municipality's wastewater infrastructure approval request [under the Environmental Assessment Act (EAA)] - and the consequent filing of a mandamus JR by the municipality to compel the statutorily-required response [EAA s.10] - the province "enacted the YRWA (SS: 'York Region Wastewater Act, 2021') which provided for the establishment of an “advisory panel” to study the wastewater management options available and to make recommendations. The JR was then argued, with the court reserving their decision (through no 'YRWA advisories' had yet been issued). While the parties were awaiting the court decision the province repealed the YRWA [via the 'SGA' (Supporting Growth and Housing in York and Durham Regions Act, 2022)], with additional statutory provisions that the municipality's EA approval was 'deemed' withdrawn, that the municipality was required to implement the province's preferred wastewater plans, and giving the province immunity from any related causes-of-action. As a consequence the municipality withdraw it's mandamus request, but still sought a declaration of constitutional invalidity that the YRWA and the SGA infringed the s.96 constitutional Superior Court authority.
The current case is the reasons for decision on this re-focussed JR, which has still been reserved after this legislative fuss. In it, the court held that they had jurisdiction to hear the JR as now sought by the municipality [since the legislation constituted a "refusal to exercise a statutory power" under JRPA 2(1)2], but that the court would not exercise it's JR discretion to hear it as it was moot.
The following quotes stand for the proposition that the Divisional Court's judicial review declaration jurisdiction encompasses a 'declaration of constitutional invalidity':[17] York Region abandoned its request for an order of mandamus in light of the enactment of the SGA. As a result, Ontario submitted for the first time on the attendance before the panel in March 2023 that this subject matter no longer fits within the ambit of jurisdiction under the Judicial Review Procedure Act, R.S.O. 1990, c.J.1. Ontario submits that, while s. 2(1) of that legislation permits this court to entertain requests for declaratory relief in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power it does not grant this court jurisdiction to issue the declarations of invalidity of the YRWA or the SGA which are being sought.
[18] York Region submits that Ontario should not be permitted to raise this jurisdictional argument at such a late stage in the proceedings as Ontario had ample opportunity to do so once York Region had served its amended notice of application and notice of constitutional question. Further, York Region submits this is an appropriate case for the court to determine the constitutional validity of legislation and maintains its request for a declaration that the Minister’s refusal to fulfil the statutory duty imposed under the EAA was a violation of that duty.
[19] We are of the opinion that this court has jurisdiction to entertain this application and to consider all the remedies sought by York Region, including the issues of legislative validity it raises (see: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 (Div. Ct.)). We view the claim that the Minister’s failure to make a decision on York Region’s request for approval of its wastewater plan, combined with the enactment of legislation removing the requirement to make such decision may amount to a refusal to exercise a statutory power within the meaning of the Judicial Review Procedure Act, and is therefore an issue which may be reviewed by this court.
[20] We further consider, however, that the principal question for us to determine is whether this court should proceed to exercise such power of review in light of these various legislative developments and the fact that the issues raised by York Region on the application before us are now moot. . Daneshvar v. Her Majesty the Queen in Right of Ontario
In Daneshvar v. Her Majesty the Queen in Right of Ontario (Div Ct, 2021) the Divisional Court denied an application for judicial review under the JRPA, but in the course of doing that set out key JRPA principles:[3] Under s. 2(1)2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1., declaratory relief is limited to the exercise, refusal to exercise or proposed exercise of a statutory power. The only statutory power the applicant has identified in the relief he seeks is the Minister of Health’s power to conduct assessments and issue written directions to public health units under ss. 82 and 83 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (“HPPA”). However, s. 83 is premised on the exercise of the Minister’s discretionary power under s. 82 to appoint assessors. She has not appointed any assessors nor has anyone requested that she appoint assessors. The rest of the application seeks broad declaratory relief that is not tied to any specific statutory power.
[4] For the reasons that follow, the application for judicial review is dismissed because the Divisional Court has no jurisdiction to grant the requested relief. In doing so, I make no comment on whether a differently structured proceeding could be brought in another forum challenging Ontario’s involvement in COVID-19 vaccination on the basis of an alleged failure to comply with human rights legislation and Charter obligations.
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General principles regarding the Divisional Court’s jurisdiction to grant declarations on an application for judicial review
[29] The Divisional Court is a statutory court. Its jurisdiction is limited to those matters conferred by statute.
[30] The Judicial Review Procedure Act sets out this Court’s jurisdiction over applications for judicial review. Subsection 2(1) of the Act gives the Court its powers to grant relief. Subsection 2(1)1 gives the Court jurisdiction to make orders in the nature of mandamus, prohibition or certiorari, which are not at issue here, with the possible exception of the applicant’s request that the Court make an order quashing the Ethical Framework, which is addressed further below. Subsection 2(1)2 deals with declaratory relief, which is what the applicant primarily seeks on this application for judicial review. Specifically, subsection 2(1)2 gives the Court the authority to make a declaration in relation to the “exercise, refusal to exercise or proposed or purported exercise of a statutory power”.[1] This provision does not give the Court broad powers to make declarations about government action, including desired government action. Rather, this provision limits the Court’s power to grant declaratory relief to circumstances where the government or public body has exercised, refuses to exercise or proposes to exercise a statutory power.
[31] This means that there are at least two preconditions before the Divisional Court can grant a declaration on an application for judicial review. First, the declaratory relief sought must arise from a statutory power. Second, there must be an actual exercise, refusal to exercise or proposed exercise of that statutory power. In other words, the Divisional Court does not have jurisdiction to make declarations about abstract questions regarding government action or inaction. Unfortunately, the applicant’s application for judicial review suffers from defects that arise from both of these requirements. For the most part, the relief sought does not relate to the exercise of any statutory powers. In addition, to the extent that it does relate to the exercise of statutory powers, there has been no exercise, refusal to exercise or proposed exercise of a statutory power. . Canada (Attorney General) v. Iris Technologies Inc.
In Canada (Attorney General) v. Iris Technologies Inc. (Fed CA, 2022) the underlying case was a judicial review (JR) seeking several declarations brought by Iris after an audit and tax reassessments. The basis of the JR were the grounds and procedures of the audit. The AG made an interlocutory motion to quash the JR, which lost twice at the Federal court (prothonotary and panel), and then appealed again to the Federal Court of Appeal. There the AG finally won.
The issue of whether declarations of fact (only) arose:[15] There is a further problem with this ground. It seeks a declaration of fact.
[16] Declaratory relief must determine the rights of the parties. A court should not grant declarations of fact (West Moberly First Nations v. British Columbia, 2020 BCCA 138, 37 B.C.L.R. (6th) 232 at paras. 309-312). While determining the rights of the parties may entail findings of fact, courts do not have jurisdiction to simply declare facts, detached from the rights of the parties (S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99 at para. 60 [Metro Vancouver Housing]; 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753, 96 C.C.L.I. (5th) 1 at paras. 22, 30). Additionally, the declaration was denied on discretionary grounds as it would serve no useful purpose:[18] A declaration is a prerogative remedy and hence discretionary. One consideration in the exercise of that discretion is whether the declaration will have any real or practical effect (Metro Vancouver Housing at para. 60). Here, even assuming the Federal Court had jurisdiction to review the purpose behind the decision to assess, a declaration should not issue. The assessment remains valid and binding until vacated by the Tax Court. Issuing a declaration that does not quash or vacate the assessments would serve little or no purpose (Johnson at para. 41). Nor will a declaration be issued where there exists an adequate alternative remedy. The declarations here will have no practical effect ̶ they are purely academic.
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