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. Vaughan Health Campus of Care v. Essensa

In Vaughan Health Campus of Care v. Essensa (Div Ct, 2021) the Divisional Court denied a judicial review application of the decision of the Ontario Chief Electoral Officer to refer complaints to investigation, based on it not being justiciable under the JRPA::
[1] This is an application for judicial review of a decision of the Chief Electoral Officer of Ontario to refer certain complaints to the Attorney General as apparent contraventions under the Elections Finances Act.

[2] We are of the view that the issues raised in this application are indistinguishable at law from the decision of the Court of Appeal for Ontario in PC Ontario Fund v. Greg Essensa, Chief Electoral Officer, 2012 ONCA 453. There, the Court of Appeal wrote, at paragraphs 11 and 12:
11. We agree with the Divisional Court that under the statutory scheme established by the EFA, the CEO’s decision to investigate the PCPO’s allegations, the manner in which he chose to conduct that investigation and his decision not to report the matter to the Attorney General as an apparent contravention, are not susceptible to judicial review.

12. When he dealt with the appellants’ allegations involving the WFC, the CEO’s decision not to report the complaint to the Attorney General did not decide or determine any legal rights. The CEO’s treatment of the complaint made by the appellants may well have had significant political consequences. However, it did not amount to a decision affecting the legal rights, interests, property, privileges or liberty of any person or party. It was not, therefore, a decision amenable to review under the traditional prerogative writs and it did not amount to the exercise of a “statutory power of decision” within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1 and 2(1). From a legal perspective, the CEO’s decision was analogous to that of a police officer refusing to lay a charge or a crown attorney declining to prosecute a case on the ground that there is no reasonable prospect of a successful prosecution. The appellants’ plea to afford the EFA a “purposive interpretation” that would make the decision susceptible to judicial review amounts to a plea to create a different statutory regime, and that we cannot do.
[3] We are unanimously of the view that the decision of the Chief Electoral Officer in this case similarly does not affect the legal rights, interests, property, privileges or liberty of any person or party.




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