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Courts - Divisional Court. Hamid v. Canadian Centre for Professional Legal Education [jurisdiction]
In Hamid v. Canadian Centre for Professional Legal Education (Ont Divisional Ct, 2024) the Ontario Court of Appeal finds that it lacks jurisdiction to hear a JR, which should have been commenced in Manitoba.
Here the court finds that the Divisional Court lacks the jurisdiction to hear matters "made under the legislation of another province", that such a proposition is constitutionally flawed as a matter of inter-provincial jurisdiction and that the applicant fails to meet the Van Breda venue test:[10] This Court does not have jurisdiction to judicially review a decision made under the legislation of another province.
[11] As a statutory court created by s. 18 of the Courts of Justice Act, RSO 1990, c C.43 ("CJA"), the Divisional Court only has jurisdiction, power, and authority in Ontario. As a constitutional matter, provinces cannot legislate beyond their territorial boundaries, and the statutes of one province do not have the force of law in another province. This constitutional limit grounds an interpretive presumption that provincial statutes are not intended to apply extra-territorially.
[12] The Divisional Court also has jurisdiction to perform judicial review, as set out in the Judicial Review and Procedures Act, R.S.O. 1990, c.J.1 ("JRPA"), and specifically, with respect to the exercise or purported exercise of defined "statutory powers." The exercise of "statutory powers" referred to in the JRPA, does not include powers exercised by extra-provincial bodies under other provincial statutes. Ontario courts do not have the authority to grant administrative law remedies with respect to extra-provincial officials carrying out duties under extra-provincial statutes.
[13] In Re Anaskan and The Queen (1977), 1977 CanLII 1199 (ON CA), 15 OR (2d) 515 (C.A.), the Ontario Court of Appeal held that the Court does not have any power to grant administrative law remedies with respect to a Saskatchewan official carrying out duties and responsibilities under Saskatchewan statutes, even if the appellant was physically present in Ontario. The Court cannot quash the orders or decisions made by courts or tribunals in other Provinces, whose powers come from their provincially enacted statutes.
[14] In Dr. Rashidan v. The National Dental Examining Board of Canada, 2020 ONSC 4174, the Divisional Court found that it did not have jurisdiction to hear the matter. The applicant was seeking to qualify as a dentist in British Columbia and had no intention of qualifying in Ontario. The Board's authority arose in British Columbia. The authority to deal with judicial review would therefore be found in British Columbia's legislation, and not Ontario's.
[15] The Applicant seeks qualification in Manitoba. Neither CPLED nor the LSM are regulated by Ontario legislation. The "statutory powers" exercised by CPLED and LSM that the Applicant refers to stem from Manitoba's Legal Profession Act and Fair Registration Practices in Regulated Professions Act.
[16] While the Applicant also raises the issue of breach of contract, it is outside this Court's authority on an Application for Judicial Review. However, even if the issue was within jurisdiction, I find no real and substantial connection to Ontario.
[17] When considering whether this Court has jurisdiction under the common law, both parties submitted that the test to be applied is whether there is a real and substantial connection between the issue and the place (as between nations see: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 SCR 572 and as between provinces see: Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 DLR (4th) 467, and College of Optometrists of Ontario v. Essilor Group, 2019 ONCA 265, 145 OR (3d) 561 (C.A.): also see Dr. Rashidan, at para. 14).
[18] Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation to the forum: see Club Resorts, at para. 82. However, in determining whether there is a real and substantial connection, the court must first consider whether there is a presumptive connecting factor.
[19] The only connection to Ontario is that the Applicant lives here. However, the physical presence of one party in the jurisdiction is not, on its own, a sufficient presumptive factor: Club Resorts, at para. 86. Once a presumption is established, it can still be rebutted, which is easily done in this case. The presumption of jurisdiction in this case would be inappropriate.
[20] The Applicant was not attempting to qualify as a lawyer in Ontario. Neither CPLED nor the LSM carry on business, or purport to carry on business in Ontario. CPLED does not provide training or exams for law societies outside of Alberta, Manitoba, Nova Scotia, and Saskatchewan. The LSM does not and cannot qualify lawyers outside of Manitoba. A judicial review of their decisions could only be a review regarding the laws in Manitoba. As the Applicant properly identifies, their decisions would be subject to review under Manitoba's Legal Profession Act and Fair Registration Practices in Regulated Professions Act. Neither of their decisions would be subject to judicial review under the JRPA.
[21] I find that this Court does not have jurisdiction to hear this application. I find that there is no real and substantial connection between the issues at stake and Ontario. Manitoba is the proper forum for the Applicant's application. . Medeiros v. Vacheff
In Medeiros v. Vacheff (Div Court, 2024) the Divisional Court comments on it's own limited jurisdiction:[20] Lastly, on the merits, Mr. Medeiros makes submissions about the merits of his civil claim and challenges the concept that his civil claim can or should be precluded by the workers’ compensation regime. Mr. Medeiros further submits that this court should exercise its inherent jurisdiction to hear this application, relying on the inherent jurisdiction of the Superior Court. However, the Divisional Court is a statutory court. It does not have the inherent jurisdiction to proceed as suggested by Mr. Medeiros. . Smith v. Gega
In Smith v. Gega (Div Court, 2023) the Divisional Court noted a 2023 court memorandum that stated: "(a)s of January 25, 2023, as per the memorandum from Associate Chief Justice McWatt, issued pursuant to section 21(2)(c) [SS: "Composition of court for hearings"] of the Courts of Justice Act, all appeals from the Landlord and Tenant Board are to be decided by a single judge of the Divisional Court.":JURISDICTION
[13] The Divisional Court has jurisdiction pursuant to s.210 of the RTA, to hear appeals on questions of law. As of January 25, 2023, as per the memorandum from Associate Chief Justice McWatt, issued pursuant to section 21(2)(c) of the Courts of Justice Act, all appeals from the Landlord and Tenant Board are to be decided by a single judge of the Divisional Court. I therefore have appropriate jurisdiction to hear this matter.
[14] Under subs. 210 (4) and (5) of the RTA, I may affirm, rescind, or replace the Order; remit the matter to the Board with the Divisional Court’s opinion; or make any other order, including with respect to costs that I consider proper. . Soleimani v. Karimi
In Soleimani v. Karimi (Div Court, 2023) the Divisional Court comments on it's equitable remedy jurisdiction:[25] Puya submits that his claims on appeal that rely on equitable principles may fall outside of the jurisdiction of the Divisional Court under s. 19(1)(a.1). He cites the decision of Finlayson, J. in M.P.A.N. v. J.N., 2018 ONCJ 769. At para. 75 of that decision, Finlayson, J. noted that the Ontario Court of Justice does not have the jurisdiction to make an order of equitable set-off.
[26] M.P.A.N. is not helpful in determining our case. The Superior Court of Justice has jurisdiction to grant equitable relief, as confirmed in ss. 11(2) and 96 of the CJA. The Divisional Court is a branch of the Superior Court of Justice: CJA, s.18(1).
[27] Sections 11(2) and 96 of the CJA provide as follows:Superior Court of Justice
11 (1) The Ontario Court (General Division) is continued as a superior court of record under the name Superior Court of Justice in English and Cour supérieure de justice in French.
Same
(2) The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.
Rules of law and equity
96 (1) Courts shall administer concurrently all rules of equity and the common law.
Rules of equity to prevail
(2) Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails.
Jurisdiction for equitable relief
(3) Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided. . Murray v. Office of the Independent Police Review Director
In Murray v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court noted the limitations of the Divisional Court:[8] The Divisional Court is a statutory appellate and review court. It is not a court of inherent jurisdiction. This is well-trod ground and the applicant’s submissions to the contrary are without merit.
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