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Standing - Public Interest Standing (2). Loeb v. Toronto (City)
In Loeb v. Toronto (City) (Div Court, 2023) the Divisional Court considered a JR challenging minor variances granted by a committee of adjustment, which normally flow on appeal to the Toronto Local Appeal Body (TLAB) however recent legislation has removed the standing of third parties (ie. neighbours) to commence TLAB appeals. In these quotes the court considers the applicant's JR standing, advanced on a 'public interest' ground:Legislative Amendment
[15] In the meantime, while Ms. Yan’s application was pending, the More Homes Built Faster Act, 2022, S.O. 2022 c. 21 (the “More Homes Act”) came into force on November 28, 2022. The More Homes Act included an amendment to the Planning Act which removed the statutory right of appeal of third parties (for example, neighbouring property owners) to a minor variance decision of a local Committee of Adjustment. Under the amended provision, only the applicant, Minister or public body, or “specified person” as defined in the Act has a right of appeal to the tribunal: Planning Act, s. 45(12).
[16] In Toronto, appeals of minor variance applications are heard de novo by the TLAB. Appeals of decisions of the TLAB to this court are permitted, with leave, on a question of law: Planning Act, s. 8.1(10).
[17] As a result, while the Applicants would have previously had a right to appeal a decision of the Committee to the TLAB, as of November 2022, they no longer have a right of appeal. Although third parties no longer have a right of appeal to the TLAB, where a minor variance applicant or other specified person appeals, they are entitled to participate in the appeal.
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Analysis
Do the Applicants Have Standing to Seek Judicial Review of the Decision?
[19] The City submits that the Applicants lack standing to seek judicial review of the Decision.
[20] The Applicants rely on public interest standing, as opposed to private interest standing, to bring this application for judicial review. They did not assert that the proximity of their own properties to the property that was the subject matter of the Decision or the variances sought by the property owner affected their private interests such that standing to seek judicial review ought to be available to them.
[21] Different considerations apply where a party seeks public, as opposed to private, interest standing. The courts have taken a more flexible, discretionary approach to public interest standing. In exercising its discretion to grant public interest standing, the court must consider three factors: (i) whether there is a serious justiciable issue raised; (ii) whether the plaintiff has a real stake or genuine interest in it; and (iii) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts: Carroll v. Toronto-Dominion Bank, 2021 ONCA 38, at para. 34. The party seeking standing must persuade the court that a purposive and flexible application of the factors favours granting standing.
[22] The Applicants take the position that they meet the test for public interest standing because:. There is a serious justiciable issue, given that the outcome of the case deals with procedural rights and the Committee’s procedures “writ large”;
. The Applicants have shown genuine interest in the matter, as evidenced by the fact that the minor variances have a potential impact on the neighbourhood and the enjoyment of their homes, as well as by the Applicants’ participation before the TLAB on the Respondent’s appeal of her initial application;
. Given that the Applicants’ procedural rights have been significantly reduced by the introduction of the More Homes Act, a judicial review application is the most appropriate avenue to challenge the Decision. [23] The issue of a third party’s standing to seek judicial review of decisions of a committee of adjustment does not appear to have been previously raised or specifically decided.
[24] In my view, in the circumstances of this case, the Applicants have not satisfied the test for public interest standing.
[25] Assuming, without deciding, that the Applicants have shown a serious justiciable issue, they have not demonstrated the second and third factors. They do not have a real stake or genuine interest in the issues that they raise. The Applicants attempt to characterize the issue as one of public interest in the process before the Committee. The participatory rights of third parties, however, are those that are provided for in the Planning Act and the Committee’s Rules.
[26] Moreover, the very interests that the Applicants assert in the substance of the minor variance application, including their ability to enjoy their own properties, are private in nature. The Applicants were entitled to receive notice of the hearing because they were among the property owners living within 60 metres of the property. The Applicants attempt to characterize the issue before this court as engaging “public rights” because their concerns relate to the character of the neighbourhood. However, the concern articulated before the Committee related to the height of the main floor and an enclosed deck at the rear of the proposed house, suggesting that their concern was whether Ms. Yan would be able to see into their properties. In terms of private rights, as argued by the City, in a dense urban environment like the City of Toronto, no one has an absolute right to light, views, and prevention of overlook from adjacent properties.
[27] In addition, an application for judicial review is not a reasonable and effective way to bring the issue before the courts. The City highlights the incongruity that would result if the Applicants are able to seek judicial review of a decision of the Committee before this court while parties with a greater interest, such as the Respondent (the minor variance applicant) and the City must first proceed with an appeal to the TLAB and may only proceed before this court with leave on a question of law In my view, it is unlikely that the legislator intended, by removing the right of third parties to appeal to the TLAB, that those parties be able to proceed directly before this court. It is worth noting that third party appeal rights concerning the adoption or amendment of official plans and zoning by-laws were maintained under the More Homes Faster Act.
[28] Accordingly, applying the factors purposively and flexibly, I find that the Applicants have not established entitlement to the granting to them of public interest standing to bring an application for judicial review in this case. Out of an abundance of caution, however, I have nonetheless considered the procedural fairness issues raised by the Applicants. . 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. . 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 public interest standing:Should the Patient Applicants be Granted Public Interest Standing?
[19] In determining whether to grant public interest standing, the court considers the following factors:(i) Whether there is a serious justiciable issue;
(ii) Whether the party bringing the proceeding has a real stake or a genuine interest in the outcome; and
(iii) Whether the proceeding is a reasonable and effective means to bring the issue before the courts.
Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 54, [2012] 2 S.C.R. 524, at para. 2. [20] In Kilian, at para. 55, this Court found that with respect to the ICRC decisions imposing restrictions on the physician’s certificate and her suspension, the patients did not have a real stake or genuine interest in the outcome. On the decision to investigate, this Court found that the patients failed to raise a serious justiciable issue because they had no reasonable expectation of privacy against a medical regulator accessing patient records and there was no interference with their bodily autonomy under s. 7 of the Charter.
[21] In this case as well, the Patient Applicants have failed to raise a serious justiciable issue. Their claims under ss. 7 and 8 of the Charter are fatally flawed because patients have no reasonable expectation of privacy against a medical regulator accessing patient records and because the interim order does not affect the Patient Applicants’ choice of medical treatment or bodily autonomy.
[22] As noted above, the Patient Applicants do not have a real stake or genuine interest in the ICRC’s decision to impose restrictions on Dr Kustka.
[23] Finally, by virtue of Dr. Kustka’s applications for judicial review, there is a proper alternative means for bringing the matter to court. The Patient Applicants’ application is not a reasonable or effective means of bringing the matter to court. On this application, Dr. Kustka can and has put forward arguments regarding the proper scope of the investigation, whether there were reasonable and probable grounds to support the investigation, and whether the Interim Order imposed was reasonable. Absent an interest that would justify standing, the Patient Applicants’ participation in the applications adds nothing to this analysis.
[24] As a result, the Patient Applicants have not met the test for public interest standing. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal stated briefly the test for public interest standing:[5] To obtain public interest standing, the applicant must show that the application for judicial review raises serious justiciable issues, the applicant has a real stake or genuine interest in the issues raised, and the application is a reasonable and effective means of bringing the issues before the courts: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27.
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[9] I am also concerned that if the applicant is not given public interest standing, the Commissioner’s decision will be immunized from any review. The potential for immunization of public decision-making is a weighty factor under the test for public interest standing: Downtown Eastside at paras. 31-34; Council of Canadians with Disabilities at paras. 33-40 and 56-59 and see the judicial standpoint against immunization of public decision-making in cases such as Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 77-79, Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81 at paras. 313-315, Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 at paras. 23-24, and Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157, 185 C.P.R. (4th) 83 at para. 44. This case seems similar to Harris v. Canada, 2000 CanLII 15738 (FCA), [2000] 4 F.C. 37, 187 D.L.R. (4th) 419 (C.A.): unless the applicant is given standing, immunization of the Commissioner’s decision from any review, at least by courts, is a real possibility. . Ash v. Chief Medical Officer of Health of Ontario
In Ash v. Chief Medical Officer of Health of Ontario (Div Court, 2022) the Divisional Court considered public interest standing in the course of quashing a JR:Applicants do not have Standing
[24] Having found that it is plain and obvious that this Application cannot succeed for the reasons above, I do not need to determine the CMOH’s challenge to the Applicant’s standing to bring this Application. However, had I needed to do so, I would have also found that Applicants lack public interest standing to bring this Application for judicial review.
[25] The CMOH argues that the Applicants’ have neither private nor public interest standing to bring this Application. The Applicants do not claim private interest standing [5] but do assert public interest standing because:1) there is a serious justiciable issue as there is an emergency causing harm.
2) the Applicants stress that their professional involvement in science/medicine/COVID response gives them a real stake and personal interest in this matter. [26] The Applicants also argue that mandamus is the only option as they allege the government is exercising their discretion in bad faith.
[27] The test for public interest standing is well established. As set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 43, [2012] 2 S.C.R. 524, at para. 37, a party seeking public interest standing must demonstrate that:(i) the Application raises a serious justiciable issue;
(ii) the Applicant has a serious interest in the issue; and
(iii) in all the circumstances, the proceedings are a reasonable and effective way to bring the issue before the courts. [30] As held in Downtown Eastside, para.53, these three factors are not a “rigid checklist” or “technical requirements,” but they are to be considered in a “purposive, flexible and generous manner.”
[28] The CMOH argues that the Applicants do not meet the test for public standing because:a. there is no serious justiciable issue because the Applicant’s legal theory is deficient, and the proceeding has no reasonable prospect of success.
b. there may be consequences in this Application for private interest litigants or qualified public interest litigants who are more suitable litigants, and some weight should be given to their decision not to bring this proceeding forward,
c. this proceeding is not a reasonable and effective way to bring the issue before the courts because the Applicants are unqualified and inexperienced public interest litigants and not represented by experienced public law counsel, [29] I agree that the Applicants lack public interest standing because there is no serious justiciable issue. As set out above, their claim as framed has no prospect for success and is quashed on that basis. But I am also concerned with the potential impact of the proceedings on the rights of others who are equally or more directly affected, as well as the ability of the Applicants, who are not represented and lack public interest litigation experience, to bring such a challenge in a reasonable and effective way. Even if this Application were not quashed because it is plain and obvious that it cannot succeed, I would not have granted the Applicants public interest standing to bring this challenge.
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