Simon's Megalomaniacal Legal Resources

Charter - Judicial Review (JR)

. Vervoort et al v. Minister of Health et al [JR versus R14.05 Application]

In Vervoort et al v. Minister of Health et al (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought to "challenge the recent Ontario government policy affecting his eligibility for medical residency".

Here the court determines that the addition of Charter grounds does not expand JR jurisdiction, and the consequent need to re-file this as a Superior Court R14.05 application:

Alleged Charter Violations

[25] I also agree with the respondents that the inclusion of Charter arguments does not give the court broader jurisdiction. As stated by this court recently in Apitipi Anicinapek Nation v. Ontario, 2025 ONSC 5033, at para. 17, “the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge.”

[26] Apitipi involved an application for judicial review to challenge a decision of the Minister of Natural Resources in connection with a water management plan. The applicant sought administrative law remedies, such as an order quashing the Minister’s decision as unreasonable and not in compliance with the Crown’s duty to consult. The applicant also sought a declaration that the relevant legislation, regulations and policies were unconstitutional as inconsistent with s. 35 of the Constitution Act, 1982.

[27] A panel of this court concluded that, although there was jurisdiction to challenge the Minister’s decision on administrative law grounds in Divisional Court, the constitutional challenge plainly fell outside the court’s jurisdiction. It therefore transferred the constitutional challenge to the Superior Court.

[28] The applicants submit Apitipi is distinguishable because the focus there was on the inability to challenge abstract government inaction. I disagree. While there is a specific policy at issue in the current case, that does not change that there is no jurisdiction, as derived from the JRPA, to review that policy. The Charter challenge cannot expand jurisdiction that does not exist from the outset.

[29] In this case there appears to be no need to transfer the constitutional challenge to the Superior Court because, following a case conference in this court on November 24, 2025, counsel for the applicants filed an application in the Superior Court under r. 14.05 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. The application was brought on behalf of different applicants but challenges the same policy on the same constitutional grounds and relies on much of the same evidence. A motion in the r. 14.05 application was scheduled before the Superior Court on December 1, 2025.

. R. v. Canadian Broadcasting Corporation

In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an 'open court'-like order, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons".

Here the court considers the discretion of the below JR court (for a writ of certiorari) to decline to consider a Charter argument:

(4) The SC judge did not err in declining to hear the appellants’ constitutional challenge

[96] The appellants contend that the SC judge erred in declining to hear their challenge to the constitutionality of the YCJA provisions limiting their right to access the Records and to publish information in them. They do not seek a new hearing but ask this court to declare that the SJ judge erred in dismissing their constitutional application.

[97] I would not grant this aspect of the appeal.

[98] I agree with the respondents that the applicable standard of review is not correctness. The SC judge’s decision not to hear the constitutional challenge was an exercise of judicial discretion. This court must accordingly determine whether he gave sufficient weight to all relevant considerations: Reza v. Canada, 1994 CanLII 91 (SCC), [1994] 2 S.C.R. 394, at p. 404.

[99] The considerations considered by the SC judge in declining to hear the constitutional challenge were appropriate. He considered that it is more “desirable that the initial inquiry and decision on these matters be argued, heard and decided in the court that administers youth justice.” This conclusion is consistent with the recognition in S.L. v. N.B., at para. 54, that Parliament has unambiguously placed the responsibility for overseeing access to youth court records on the shoulders of youth justice court judges and that they are uniquely suited to this role:

Youth justice court judges are familiar with the principles and policies animating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the Act that touch on access issues. Youth justice court judges also know what records are generated by the youth justice court system, and have daily experience in considering and balancing the competing interests which may clash on access applications.

[100] The SC judge further found that he should not hear the constitutional challenge because he did not have the full record before him. The respondents suggest that he could have simply ordered that the file be transferred. The SC judge was not, however, required to make such an order to accommodate the appellants’ failure to raise the constitutional issues at first instance. The appellants alternatively argue that the SC judge did not need the full record to consider the issues on a constitutional challenge. I do not agree. Charter analysis is contextual. It requires a comprehensive evidentiary record.

[101] The appellants contend that the SC should have given weight to their argument that the constitutional challenge should be heard in the Superior Court because it can declare a law invalid — the relief sought in their application — whereas the Youth Court cannot. As the SC judge correctly found, however, the Youth Court can determine the constitutionality of a provision for the purpose of deciding whether it should be enforced in a specific proceeding: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 15.