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Declarations - Application of the Rules of Civil Procedure. Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario
In Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario (Div Ct, 2020) the Divisional Court usefully clarified it's role in a judicial review application. The Travel Industry Council of Ontario [a statutory body under the Travel Industry Act (TIA)] had written to a business that it was in violation of the Act and requiring that it register as a travel agent. The business opposed this position and moved by judicial review before the Divisional Court to (1) set aside the TICO 'decision' and for (2) a declaration that it had not violated the TIA.
On the first request the court held that no decision susceptible to the JRPA had occured as TICO had not either exercised a "statutory power of decision" nor proposed to exercise it, pursuant to JRPA 2(1)2 and related definitions:[17] Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1., sets out the Divisional Court’s jurisdiction on an application for judicial review as follows: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:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
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. [18] Section 1 of the Judicial Review Procedure Act defines “statutory power” as “a power or right conferred by or under a statute” which includes the power “to exercise a statutory power of decision”.
[19] “Statutory power of decision” is defined as follows:“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, TICO only had the relevant authority to either apply the Superior Court for an injunction against the business' behaviour, or to prosecute under the TIA offence provisions.
Secondly, on the declaration request, the Divisional Court was a statutory court whose application jurisdiction was limited by the JRPA. Not having a 'statutory power' to deal with, the remedy of the applicant lay under the application authority of R14.05(3)(d) of the Rules of Civil Procedure in the Superior Court:R14.05 (3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
....
(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;
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