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Judicial Review - Statutory Powers - General (1). Ramsay v. Waterloo Region District School Board
In Ramsay v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered a JR by a school board trustee against "the Waterloo Region District School Board (the “WRDSB”) ... which found that he had breached its Code of Conduct for Trustees (“Code of Conduct”) and imposed sanctions upon him as a result". These quotes briefly set out the JR jurisdiction for the application:[1] Michael Ramsay has brought this application for judicial review of the decision of the Waterloo Region District School Board (the “WRDSB”) on June 6, 2022 which found that he had breached its Code of Conduct for Trustees (“Code of Conduct”) and imposed sanctions upon him as a result.
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[6] The WRDSB is a public school board that exercises statutory authority under the Education Act, R.S.O. 1990, c. E.2 (the “Act”). The WRDSB is composed of 11 trustees who are responsible for serving the interests and needs of the general public, and for advocating for a strong public education system that benefits the learners and communities served within the local community.
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[24] On June 6, 2022 the trustees deliberated in camera the issues of whether to find Ramsay in breach of the Code of Conduct based on the findings of the Integrity Commissioner’s report, and to determine whether any resulting sanctions should be imposed.
[25] Following that meeting, a public meeting was held at which the trustees voted 6-3 that Ramsay had breached the Code of Conduct. The WRDSB voted, by the same 6-3 margin, to impose sanctions on Ramsay. These sanctions included a formal censure, and the suspension of his entitlement to attend WRDSB meetings or to receive in camera materials until September 30, 2022. The Chair cast a vote in these determinations.
[26] On June 8, 2022, Ramsay was provided with written notice of the decision. He was informed that he could provide written submissions to request the WRDSB to reconsider its decision. On June 24, 2022 Ramsay submitted his request for reconsideration.
[27] On June 27, 2022 the WRDSB deliberated in camera whether to confirm or revoke its decision that Ramsay breached the Code of Conduct. At the public meeting immediately following, the trustees voted 6-3 to confirm its finding of a breach, and to confirm the sanctions imposed.
Jurisdiction
[28] The Divisional Court has jurisdiction to hear and determine this application for judicial review under sections 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1. . Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks)
In Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks) (Div Court, 2022) the Divisional Court considered how overt a 'refusal to exercise a statutory power' needs to be to attract JRPA s.2(1)2 jurisdiction:[51] With respect to the question of this Court’s jurisdiction, the Respondents emphasize that, unlike the Superior Court, the Divisional Court does not have inherent jurisdiction. Specifically in this case, they submit that the Court does not have jurisdiction because Ontario did not refuse to exercise a statutory power. In any event, the statutory power that existed was eliminated. As otherwise stated by Brookfield, the current dispute is moot in view of the elimination of the PTTW regime. In addition, the Respondents submit that constitutional challenges to the validity of legislation do not fall within the Judicial Review Procedure Act.[23]
[52] I reject the Respondents’ first submission, that Ontario did not refuse to exercise a statutory power. Paragraph 2(1)(2) of the JRPA grants this Court jurisdiction in relation to the “refusal to exercise…a statutory power.” MFN does not need to demonstrate a specific, overt refusal. A refusal can be express or implied. Neglect or unreasonable delay in performing a duty can be deemed an implied refusal.[24] When Ontario did not make decisions on the applications for PTTWs filed in 2016 and then, three years later, amended the legislation to remove the requirement to obtain a PTTW, in my view, this was tantamount to a refusal. . Sui v. Ontario
In Sui v. Ontario (Div Court, 2022) the Divisional Court clarifies the nature of a 'statutory power' as distinct from a 'statutory power of decision':[2] Mr Sui did not address the jurisdiction of the OCJ, or a court hearing an appeal from the OCJ. Instead, he argued that the public service member exercised a "statutory power of decision" in refusing to provide a certificate for the recording furnished for preparation of a transcript by a certified transcriptionist.
[3] Mr Sui is in error in this argument. Statutory authority is not the same thing as a statutory power of decision. All manner of tasks, from the important to the mundane, are performed by the public service pursuant to direct or indirect grants of statutory authority; only a small subset of them rise to the level of being a "statutory power of decision." Providing a recording of a court proceeding - with or without a certificate - is a matter of day-to-day public administration and is not exercise of a statutory power of decision. . Democracy Watch v. Ontario Integrity Commissioner
In Democracy Watch v. Ontario Integrity Commissioner (Div Ct, 2020) the Divisional Court considered a judicial review application by a public interest organization of refusals of the Integrity Commissioner and the Conflict of Interest Commissioner to comply with the organization's requests to make formal determinations regarding the conduct of some executive government officials.
One of the issues considered was whether the refusals were "exercise of a statutory power" under JRPA s.1:66. A Statutory Power is defined as follows under s. 1 of the JRPA [paras 67-74]:“statutory power” means a power or right conferred by or under a statute,
(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.
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