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Judicial Review - Statutory Powers - Declaration [JRPA 2(1)2]

. 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.


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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