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Judicial Review - Statutory Powers - Introduction1. Overview
As mentioned above, most judicial review applications are brought to police the exercise of a "statutory power". It's easy to think of judicial review as applying only to governments, but that would be inaccurate. Statutes can grant 'powers or rights' to effectively anyone - it's just a reality that they are mostly granted to governments and their associated bodies. As well, just because a government is involved with an act, doesn't make it "statutory" - as some internal logistical acts are common with any private body (eg. buying toilet paper) and thus are treated as 'private' [see the s.6 'Public v Private' section].
2. Definition of Statutory Powers
The Judicial Review Procedure Act provides [JRPA 2(1)2]:2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:....
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. "Statutory power(s)" are defined as four categories (noted below) of "power or right conferred by or under a statute" [JRPA s.1]:“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, ['subordinate rule-making']
(b) to exercise a statutory power of decision, ['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, ['ordering breach']
(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; ['direct breach'] 3. Subordinate Rule-Making
"(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation," This phrasing attempts to catch all statutorily-authorized rule-making other than legislation (ie. statutes) - often called (somewhat inaccurately) 'subordinate legislation'. It can be thought of as the court's policing of all the rule-making of government - except legislation, which is at the heart of the legislature's role in our political division-of-powers between courts, executive government and legislature.
4. Statutory Powers of Decision
(b) to exercise a statutory power of decision, 'Statutory powers of decision' (SPDs) are the most heavily-challenged of the "statutory powers". They involve situations where statutes have delegated a power of decision - usually to a body which they create simultaneously - such as a tribunal or a board (hereafter, generally referred to as 'tribunals'). Think Landlord and Tenant Board (LTB) or the Licence Appeal Tribunal (LAT) appeals - there's a pile of them.
SPDs have their own JRPA definition [JRPA s.1]:“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court.
....
JRPA 1 In this Act,
“licence” includes any permit, certificate, approval, registration or similar form of permission required by law;
JRPA 1 In this Act,
“party” includes a municipality, association of employers, a trade union or council of trade unions which may be a party to any of the proceedings mentioned in subsection 2 (1); As mentioned, SPDs comprise the world of tribunals and tribunal appeals. Whenever you speak of these in Ontario law, you naturally have to consider the Statutory Powers Procedure Act (SPPA), which is a sort of 'minimum standard' (with exceptions) generic law that applies to regulate tribunal procedures - much as the Rules of Civil Procedure (RCP) governs civil court procedures. Indeed, the SPPA has an almost identical definition of SPDs [SPPA s.1(1)]:“statutory power of decision” means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not; And remember, SPDs - themselves typically involving a form of statutory appeal - may also have a further court appeal also legislated - for instance, LTB decisions may be further appealed to the Divisional Court [RTA s.210].
This point illustrates the difference between an 'appeal' (which is always statutory) and a 'judicial review' - that is, where an appeal exists (to a tribunal or a court), parties should almost always follow through with that remedial route rather than judicial review. The general rule is that where there is no, or no further, statutory appeal (be it tribunal or court) then an SPD may be judicially reviewed.
5. Direct Breach
(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. The next type of statutory power involves an opposition of interests between the 'citizen' (on the one hand) and the statutory 'rights-holder' (on the other), so I use those terms to explain it. It is a broad, diffuse power that - when valid - grants a rights-holder power to commit a direct breach of a citizen's rights.
The concept is normally restricted to breaches of a citizen's common law rights, though that feature is incidental to the practical reality that most violations of a citizen's statutory rights are already codified in statute, somewhere. That is, a citizen can judicially review a breach of statutory rights, it's just that they don't occur that often. Another feature of such a JR is that it would necessarily involve the statutory interpretation of two sets of statute law: ie. the one relied on by the breaching rights-holder and the one relied on by the citizen. As a consequence most 'direct breach' JR's deal with the citizen's common law rights (but not always).
6. Ordering Breach
(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". This statutory power can be hard to grasp at first, as - unlike the 'direct breach' form (above) - it doesn't grant direct rights to the rights-holder, rather it purports to grant the rights-holder the indirect right to "require" the citizen to 'do it themselves'. There are positive 'orders' ['you shall'] and negative orders ['you shall not'].
7. Summary of 'Statutory Powers'
The above statutory power 'list' is basically a list of everything that a statute can do, which is quite a lot. The whole idea of modern judicial review is to provide the courts with a specialized body of law and procedure, separate from the private law of contract and tort, that polices what may be called - broadly - administrative law, when the statutes don't otherwise do it. This latter point again raises the essential distinction between judicial review and appeals - with appeals being defined both substantively and procedural by individual 'parent' statutes, the Courts of Justice Act and the Rules of Civil Procedure [see Civil Appeal (Ontario) Legal Guide].
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