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Professionals - General. Hardick v. College of Chiropractors of Ontario
In Hardick v. College of Chiropractors of Ontario (Div Court, 2023) the Divisional Court points out the broad discretion granted professional regulators in interpreting their statutorily-delegated authority:[23] It goes without saying that delegated legislation must fall within the bounds of the authority provided by the enabling statute. However, the Supreme Court of Canada has repeatedly emphasized a professional regulator’s broad discretion to regulate. In Green, for example, it compared rules made by a law society to bylaws passed by municipal councils. The Court emphasized that such bylaws “must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation”: at para. 21, quoting from Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 19. The Court further underscored, at para. 22, the professional regulator’s “broad discretion to regulate … on the basis of a number of policy considerations related to the public interest.” See also Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453, at para. 18. . Hardick v. College of Chiropractors of Ontario
In Hardick v. College of Chiropractors of Ontario (Div Court, 2023) the Divisional Court consider variations to the RJR-McDonald s.106 stay test, here where the applicant sought to stay a by-law of a professional regulatory College:[7] The test regarding whether to grant a stay is set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. Ordinarily, the moving party must demonstrate that there is a serious issue to be tried; that it will suffer irreparable harm if the stay is not granted; and that the balance of convenience favours a stay. However, the minimal threshold at the first step assumes that the stay will operate as a temporary measure pending the full hearing. In cases where, as a practical matter, the rights of the parties will be determined by the outcome of the stay motion, the question becomes whether there is a strong likelihood that the case will succeed on the merits: Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 142 O.R. (3d) 481, at para. 10.
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Does the balance of convenience favour a stay?
[43] Overall, the balance of convenience weighs in favour of denying a stay. When a court is considering a request for a stay suspending the operation of a validly enacted law, the law is presumed to be in the public good. In assessing the balance of convenience, therefore, the motions judge must proceed on the assumption that the law, or bylaw in this case, is directed to the public interest and serves a valid public purpose: Harper v. Canada (Attorney General), 2000 SCC 57, 2 S.C.R. 764, at para. 9; RJR-MacDonald, at pp. 348-49.
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