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Standing - Private Interest. Mammarella v. Ontario College of Teachers
In Mammarella v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered a JR of a specific tribunal 'rule change' (not of a case decision or order), here of the 'Rules of Procedure of the Discipline and Fitness to Practise Committee' of the Ontario College of Teachers (OCT) relating to third party evidence disclosure.
Unusually, the applicant was a member of the OCT which led to a challenge to their standing to bring such an application:[4] The OCT challenges the standing of the applicant to bring this application. In any event, the OCT submits that the ambit of judicial review is limited and the decision in question is reasonable. We agree.
[5] Beginning with standing, the applicant is a member of the OCT and submits that he has private interest standing. He also submits that he qualifies for public interest standing. We conclude that he does not have either private or public interest standing in this case.
[6] The requirements for private interest standing were summarized by this Court in Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931, at paras. 42-43, also quoting from Carroll v. Toronto-Dominion Bank, 2021 ONCA 38. To have private interest standing, a person must have a personal and direct interest in the issue being litigated and must themselves be specifically affected by the issue. It is not enough that the person has a “sense of grievance” or will gain “the satisfaction of righting a wrong” or is “upholding a principle or winning a contest”.
[7] The rule in question relates to proceedings before the Discipline Committee and the Fitness to Practise Committee and the applicant is not currently the subject of either type of proceeding. He was previously the subject of discipline proceedings and brought a third party record application that was addressed applying the test in R. v. O’Connor, after which allegations of sexual abuse were withdrawn. Other allegations resulted in a finding of professional misconduct. Those discipline proceedings concluded in December 2022. The applicant submits that his prior discipline experience and current membership in the OCT are sufficient for private interest standing. We disagree.
[8] The applicant has no personal and direct interest in the rule change because he is not currently the subject of proceedings under which that rule would apply. If he were, he could attempt to challenge the rule as unfair within the context of the related discipline or fitness to practice proceedings. This application is unlike Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, where the appellant lawyer was subject to the mandatory professional development rules at issue and was suspended for non-compliance.
[9] We also do not grant the applicant public interest standing. This application for judicial review is not a reasonable and effective way to bring the issue before the courts, nor do the other factors favour granting standing: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at paras. 37, 50. If need be, the issue may be raised, in context, in the proceedings where it applies. . YG Limited Partnership and YSL Residences Inc. (Re) [2]
In YG Limited Partnership and YSL Residences Inc. (Re) (Ont CA, 2023) the Court of Appeal considered standing, here in a BIA appeal case:[10] With respect to the standing issue raised in ground of appeal 1, we were not persuaded by the Limited Partners’ primary submission that based on general common law principles of standing the motion judge erred by denying them the right to standing, as their economic interests would be affected by the CBRE appeal decision.
[11] It is not clear that the claimed common law “right” of standing exists. The authorities relied upon by the Limited Partners do not say so. Ivandaeva Total Image Salon Inc. v. Hlembizky (2003), 2003 CanLII 43168 (ON CA), 63 O.R. (3d) 769 (C.A.), at para. 27, involved an interpretation of rule 37.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits a party who “is affected by” an ex parte or registrar’s order to move to set the order aside. Fontaine v. Canada (Attorney General), 2018 ONCA 1023, at para. 21, spoke of the standing that the Canadian judicial system “generally” gives to those “who will be subject to an order of the court”. The Limited Partners were not subject to the order under appeal. Rule 13.01(1), which the Limited Partners did not invoke, empowers courts to grant leave to intervene to parties that claim to have “an interest in the subject matter of the proceedings”, a judicial power that would arguably be unnecessary if persons whose interests are affected by an order already have a right to standing. In any event, we need not resolve the contours of the common law right to standing in this case because even if the claimed right exists, the Limited Partners cannot avail themselves of that right in the circumstances of this case.
[12] First, in Ivandaeva, at para. 27, in describing the basis for standing Borins J.A. stipulated that “the order must be one that directly affects the rights of the moving party in respect of the proprietary or economic interests of the party.” The Limited Partners do not have a direct economic interest in CBRE’s claim. By virtue of its constating partnership agreement and the Limited Partnership Act, R.S.O. 1990, c. L. 16, ss. 8-12, the business of a limited partnership is managed by its general partner. This is the price limited partners pay for their limited liability: Kucor Construction & Developments & Associates v. Canada Life Assurance Co. (1999), 1998 CanLII 4236 (ON CA), 41 O.R. (3d) 577 (C.A.), at pp. 588-91. The limited partners therefore enjoy the economic benefits from the partnership through their contractual relationship with the general partner, and not through direct legal rights tenable against debtors or creditors of the partnership. As a result, the direct economic interest at stake during CBRE’s appeal belonged to the partnership, an economic interest that is to be exercised by the General Partner even where the outcome of the appeal could ultimately inure to the financial benefit of the Limited Partners. Simply put, even if the general common law principles of standing relied upon by the Limited Partners do exist and are tenable in the appeal of a creditor’s proof of claim arising out of the BIA, the Limited Partners lacked the direct economic interest in the outcome of the proceedings that would be required to support their standing claim. . Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal cited authorities for civil private standing, here in the course of considering standing to file an HRC application:[92] The test applied by the courts for private interest standing requires that the applicant or plaintiff have a personal and direct interest in the issue raised in the proceeding. The interest must not be too indirect, remote, or speculative. Various formulations of this requirement are used in the jurisprudence, including that the person is “specifically affected by the issue”, has a “personal legal interest”, or has a “personal and direct interest” in the outcome of the proceeding. This type of standing is often referred to as “direct interest” or “private” standing to distinguish it from public interest standing (the latter having different requirements): Canada (Minister of Finance) v. Finlay, 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607, at pp. 617-18; Bedford v. Canada, 2010 ONSC 4264, 102 O.R. (3d) 321, at paras. 44-47, aff’d on this point, 2012 ONCA 186, 109 O.R. (3d) 1, at para. 50, rev’d in part on other grounds, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carroll v. Toronto-Dominion Bank, 2021 ONCA 38, 153 O.R. (3d) 385, at para. 33; Thomas A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986), at p. 5.
[93] The ultimate concern behind rules for private standing (as distinct from public interest standing) is that the party bringing the proceeding have a real legal interest in the proceeding that they are seeking to vindicate, rather than just a “sense of grievance”: Carroll, at para. 33; Landau v. Ontario (Attorney General), 2013 ONSC 6152, at paras. 16 and 21; Cromwell, at pp. 9-10. . Ye v Toronto District School Board
In Ye v Toronto District School Board (Div Court, 2023) the Divisional Court considers the private interest standing of an adult that applied for enrolment standard high school courses, as opposed to adult continuing courses:Does the Applicant Have Private Interest Standing?
[19] The issue of public and private interest standing was recently examined in detail by this Court in Kilian v. College of Physicians and Surgeons, 2022 ONSC 5931 (Div. Ct.). A party must have either private interest standing or public interest standing to bring an application for judicial review. For private interest standing, the applicant must show a direct, personal interest in the operation or application of a law: Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607, at p. 619. A “sense of grievance” is not sufficient, a person must have a “personal legal interest” in the outcome: Landau v. Ontario (Attorney General), 2013 ONSC 6152, at para. 16.
[20] The relevant factors in determining whether there is such an interest include: the statutory purpose, the subject matter of the proceeding, the person’s interest in the subject, and the effect that the decision might have on that interest: Canadian Elevator Industry Education Program
v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, [2016] N.S.J. No. 435, at para. 42.
[21] In my view, the Applicant does not meet the test for private interest standing. He has no personal legal interest in the Policy. The fact that the Applicant applied to attend a student interest program offered by the TDSB is not a sufficient basis to ground private interest standing to challenge the Policy. The Applicant is not entitled to attend a student interest program. He has not demonstrated that he meets the requirements of s. 49.2 of the Education Act, which provides that an adult may be entitled to take a course at a secondary school if the board does not have a course in continuing education that the adult requires to obtain their diploma or to be admitted to a post-secondary program. In any event, he could not meet those requirements. A student interest program is not a requirement to obtain an OSSD or for entry into a post-secondary program.
[22] It is worth noting that in the Application, the Applicant does not specifically challenge the TDSB’s direction that the Applicant apply to a continuing education program. He has not stated that he applied for continuing education. If the Applicant were to be granted standing, any person could challenge the Policy by virtue of having applied to a student interest program.
[23] The Applicant has even less of a direct, personal interest in the operation of the By-law that he challenges. The By-law is an internal governance mechanism for the Board. The failure of the motion to reconsider the Policy does not give the Applicant private interest standing to challenge the By-law that governed. . Kustka v. College of Physicians and Surgeons of Ontario
In Kustka v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered COVID RHPA judicial reviews, here 2 JR applications by a physician and 2 by patients. These reasons for decision are from a motion to quash all of them, which was granted in full.
In these quotes the court considers issues of private interest standing:Should the Patient Applicants be Granted Private Interest Standing?
[11] A party must have either private interest standing or public interest standing to bring an application for judicial review. For private interest standing, the applicant must show a direct, personal interest in the operation or application of a law: Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607, at p. 619. A “sense of grievance” is not sufficient, a person must have a “personal legal interest” in the outcome: Landau v. Ontario (Attorney General), 2013 ONSC 6152, at para. 16.
[12] The relevant factors in determining whether there is such an interest include: the statutory purpose, the subject matter of the proceeding, the person’s interest in the subject, and the effect that the decision might have on that interest: Canadian Elevator Industry Education Program v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, [2016] N.S.J. No. 435, at para. 42.
[13] In Kilian, at para. 44, this Court confirmed that patients have no private interest standing in the circumstances where the CPSO has initiated an investigation into a member’s conduct, stating as follows:The Patient Applicants do not have a personal legal interest in the ICRC’s decisions to authorize an investigation of Dr. Kilian’s conduct or to place restrictions on her certificate. They have concerns that their medical records will be disclosed to College investigators, but that does not justify a grant of private interest standing, given the purpose of the regulatory regime and the subject matter of the judicial review proceeding. [14] In Kilian, at para. 45, this Court held that a finding of private interest standing would be contrary to the statutory purpose, which is to regulate physicians’ conduct in the public interest. A finding of private interest standing would “disrupt” professional regulation because it would entitle thousands of patients to standing at the investigation stage: Kilian, at para. 47. This Court also noted that the Code grants patients standing in certain limited circumstances, further demonstrating the legislature’s intention to circumscribe patient participation in the regulatory process.
[15] Moreover, in Kilian, this Court went on to find that the patients have no direct interest in the decisions under review, which involve the regulator and the member. Similarly, the restrictions on the physician’s certificate in that case did not affect the patients’ legal interests: Kilian, at paras. 49-50. We see no reason to depart from the thorough and persuasive analysis conducted by this Court in Kilian.
[16] The Patient Applicants distinguish their applications for judicial review from those brought by the patients in Kilian on the basis that in this case, they seek to challenge s. 76 of the Code, while Kilian was limited to considering an investigation under s. 75 of the Code. In our view, this is a distinction without a difference. In Kilian, the CPSO had brought a parallel application in the Superior Court pursuant to s. 87 of the Code to compel the production of records under s. 76. While, in the circumstances, this Court did not specifically address s. 76, the underlying factual scenario was the same as in this case. The patients in Kilian argued that they had standing to bring an application for judicial review because their private medical records would be disclosed to CPSO investigators.
[17] The production of private medical records pursuant to s. 87 was subsequently addressed by Chalmers J. of the Superior Court in Kilian v. College of Physicians and Surgeons of Ontario, 2023 ONSC 1654 (Sup. Ct.) [Kilian SCJ]. In that case, Chalmers J., relying on College of Physicians and Surgeons of British Columbia v. Bishop (1989), 1989 CanLII 2674 (BC SC), 34 B.C.L.R. (2d) 175, held that the expectation of privacy in medical records is subject to the higher need to maintain appropriate standards in the profession: at para. 34. In addition, patient records are protected by the requirement that the CPSO maintain their confidentiality under s. 36 of the RHPA. As a result, courts have rejected the argument that patient-physician privilege precludes an order requiring the production of patient records: Kilian SCJ, at paras. 36 and 51.
[18] Accordingly, there is no basis upon which to distinguish this case from Kilian. The Patient Applicants lack private interest standing to bring applications for judicial review to challenge the interim order and investigation decision. . Lovell v. Ontario (Ministry of Natural Resources and Forestry)
In Lovell v. Ontario (Ministry of Natural Resources and Forestry) (Div Court, 2022) the Divisional Court considered the private law standing of neighbours in a JR of a work permit:[52] In Alberta Liquor Store Association v. Alberta (Gaming and Liquor Commission), 2006 ABQB 904, 406 A.R. 104, at para. 13, Slatter J. of the Alberta Court of Queens Bench offered a helpful summary of the law regarding private interest standing, distinguishing between those with a genuine interest in the subject matter of an administrative decision and the “busybody”. He wrote:The general policy of the court is not to decide issues in the absence of the parties whose rights are most directly affected by the court’s decision. The Court will not adjudicate rights in the absence of those whose rights are at stake … If those who are most directly affected by the administrative decision are content to live with it, the court is disinclined to allow more vigilant inter-meddlers to bring applications for judicial review. If, on the other hand, those most directly impacted or “aggrieved” are inclined to challenge the administrative decision, it is they who should be allowed to carry the proceedings, and not the curious busybody.
[Citations omitted.] [53] The Applicants point to a number of cases in which private interest standing was granted to neighbours opposing a development in their neighbourhood. One example is Berjawi v. Ottawa (City), 2011 ONSC 236, 79 M.P.L.R. (4th) 280, where the court granted standing to a group of neighbours opposing a building permit for a battered woman’s group home. Another is Specter v. Nova Scotia (Fisheries and Aquaculture), 2011 NSSC 333, 307 N.S.R. (2d) 142. There, the Supreme Court of Nova Scotia granted standing to two persons who owned a property that fronts on a harbour where three aquaculture (fish farm) licences had been issued. Those licences were amended to allow the fish farms to be moved close to the home of the property owners.[1]
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