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Standing - Statutory Bodies. Phillips v. Capital One (Canada Branch)
In Phillips v. Capital One (Canada Branch) (Fed CA, 2021) the Federal Court of Appeal considered the party status of the federal Privacy Commissioner under the Federal Court Rules:[1] The Privacy Commissioner of Canada believed he should have been named as a party respondent in this appeal. So he delivered a notice of appearance to the Registry. In doing so, he assumed he can enter into this appeal just like that. He says he can do this under Rule 341 of the Federal Courts Rules, S.O.R./98-106.
[2] No he can’t. Even where a legislative provision allows some agency or office holder to participate in proceedings, the agency or office holder must bring a motion to be added to the proceedings and to amend the style of cause.
[3] Rule 341 allows respondents, already named as respondents, to file a notice of appearance. But the Privacy Commissioner is not yet a respondent. Nor can he unilaterally make himself a respondent. Nor can he unilaterally amend the style of cause. Only the Court, by order, can make a party a respondent and amend the style of cause.
[4] The Court issues orders in response to motions. The Privacy Commissioner should have brought a motion to be added as a respondent and to amend the style of cause to reflect that addition.
[5] Nevertheless, in the interests of time, the Court will act as if there were a motion before it. The appellant should have named the Privacy Commissioner as a respondent. Rule 338(1) provides that an appellant must name as a respondent "“every party in the first instance who is adverse in interest to the appellant in the appeal”". The Privacy Commissioner was a respondent to the motion in the Federal Court that is the subject of the appeal in this Court. Therefore, the Court will add the Privacy Commissioner of Canada as a respondent and amend the style of cause. . Arsenijevich v. Ontario (Provincial Police)
In Arsenijevich v. Ontario (Provincial Police) (Ont CA, 2019) the Court of Appeal confirmed that the OPP may not be sued:[6] The motion judge correctly concluded that the OPP is not a legal entity capable of being sued: see McNabb v. Ontario (Attorney General) (2000), 2000 CanLII 22413 (ON SC), 50 O.R. (3d) 402 (S.C.), at paras. 25-30. ... . Lawrence v. International Brotherhood of Electrical Workers
In Lawrence v. International Brotherhood of Electrical Workers (Ont CA, 2017) the Court of Appeal sets out the appropriate manner to include a trade union as a party to litigation:[15] It is well established that the Rights of Labour Act precludes a trade union from being named as a party and that an action brought in violation of the Act will be struck or dismissed: Nippissing Hotel Ltd. et al. v. Hotel & Restaurant Employees & Bartenders International Union et al., 1963 CanLII 149 (ON SC), [1963] 2 O.R. 169 (H.C.J.); Dover Corp. (Canada) Ltd. v. CAW-Canada, Local 27, [1996] O.J. No. 2319 (Gen. Div.); Active Canada Inc. v. Formosa, [2002] O.J. No. 2551 (S.C.J.); Burley v. O.P.S.E.U., [2004] O.J. No. 4431 (S.C.J.).
[16] The proper way to sue a trade union is to obtain a representation order pursuant to r. 12.07, authorizing one or more members of the union to defend a proceeding on behalf of all the other members. Rule 12.08 facilitates a similar procedure by providing that a representative order may be made for members of an unincorporated association or trade union to bring a proceeding on behalf of all the members where a class action would be unduly expensive or inconvenient. . Gratton-Masuy Environmental Technologies Inc. v. Ontario
In Gratton-Masuy Environmental Technologies Inc. v. Ontario (Ont CA, 2010) the Court of Appeal engages in an extended discussion of when non-corporate statutory bodies (here a commission established under the Building Code Act) are categorically exempt from being sued:[1] CRONK J.A.: This appeal concerns the legal capacity of a non-corporate statutory entity, whose conduct is subject to supervision by way of judicial review, to be sued for declaratory and injunctive relief. Also in issue is whether a reasonable cause [page324] of action is disclosed by a pleading in which allegations of bad faith, malice and bias are advanced against the non-corporate statutory entity and certain of its members.
....
[3] The respondent, the Building Materials Evaluation Commission (the "Commission"), is a statutory body continued under s. 28(1) of the Building Code Act, 1992, S.O. 1992, c. 23 (the "Act"). It is comprised of part-time members, appointed by the lieutenant governor in council under the Act, who are engineers, designers, manufacturers, contractors, consultants and former municipal officials. The individual respondents are current or former members of the Commission.
[4] The Commission's statutory powers and duties are set out in s. 28(4) of the Act:28(4) The [Commission] may,
(a) conduct research on, and examine, construction materials, systems and building designs or cause such research to be conducted and examinations to be undertaken;
(b) upon application therefor, authorize the use, subject to any conditions that may be set out, of any innovative material, system or building design in respect of any building or part thereof; and 8,12,00(c) make recommendations to the Minister respecting changes in this Act or the building code. [5] The Crown is named as a party in her representative capacity, pursuant to the provisions of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (the "PACA").
....
[35] ... (1) Did the Divisional Court err by concluding that the Commission is not a suable entity for the purpose of obtaining declaratory and injunctive relief?
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[36] The appellants argue that on the facts pleaded, an action for declaratory and injunctive relief lies against the Commission in respect of claims based on the Commission's alleged unlawful exercise of its statutory powers.
[37] The respondents acknowledge that some statutory administrative bodies are suable. However, they rely on Westlake v. Ontario, 1971 CanLII 680 (ON SC), [1971] 3 O.R. 533, [1971] O.J. No. 1925 (H.C.J.), affd 1972 CanLII 515 (ON CA), [1972] 2 O.R. 605, [1972] O.J. No. 1767 (C.A.), affd (1973), 1978 CanLII 2190 (SCC), 33 D.L.R. (3d) 256 (S.C.C.) to argue that the Commission is a non-corporate statutory entity that does not have the legal capacity to be sued. Consequently, the respondents submit, the Divisional Court correctly dismissed the appellants' action against the Commission.
[38] Westlake involved a suit by aggrieved securities holders against the Ontario Securities Commission and others for damages for alleged breach of trust, breach of contract, deceit, common law negligence and negligence in failing to perform statutory duties. The action was attacked on the ground that the Ontario Securities Commission was not an entity that could be sued for damages.
[39] In Westlake (H.C.J.), at pp. 534-35 and 538 O.R., Houlden J. of the High Court of Justice examined the liability to suit of statutory entities falling within six categories:(1) bodies corporate which are not expressly declared to be suable but which, by virtue of s. 26 of the Interpretation Act, R.S.O. 1960, c. 191, [See Note 1 below] may sue and be sued unless the applicable incorporating statute otherwise provides;
(2) bodies corporate which are expressly declared to be suable; [page332]
(3) bodies corporate which are expressly declared not to be suable;
(4) non-corporate bodies which are, by the terms of the statute creating them, expressly liable to suit;
(5) non-corporate bodies which are not by the terms of the statute incorporating them expressly liable to suit but which are by necessary implication liable to be sued in an action for damages; and
(6) non-corporate bodies which are not by the terms of the statute incorporating them or by necessary implication liable to be sued in an action for damages, but who are legal entities in that their actions may be reviewed in proceedings brought against them by way of the extraordinary remedies of certiorari, mandamus and prohibition. [40] Citing the holding of this court in Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board, 1952 CanLII 16 (ON CA), [1952] O.R. 366, [1952] O.J. No. 439, [1952] 3 D.L.R. 162 (C.A.) that the Ontario Labour Relations Board was not a suable entity, Houlden J. held in Westlake (H.C.J.), at p. 539 O.R., that the Ontario Securities Commission was an entity coming within the sixth category of statutory entities above-described. Consequently, while its actions were subject to judicial review in proceedings involving the prerogative writs, it could not be sued for damages in a civil action. Houlden J.'s decision to dismiss the action on this basis was upheld unanimously both by this court and by the Supreme Court of Canada.
[41] In Hollinger, Roach J.A. explained why the Ontario Labour Relations Board did not fit into any of the available categories of suable entities, and therefore could not be liable to an action for declaratory and injunctive relief. His comments, at paras. 12-15, are instructive:Plainly, [the Board] is not an individual. There are individuals who are members of the Board but the Board itself is a single entity. Plainly, too, the members of the Board are not partners or persons carrying on business in a name other than their own. Neither is the defendant a corporation. The statute creating it, most significantly, does not declare it to be a corporation. There are Boards which are the creatures of the legislature, some of which, by the statutes creating them, are corporations, and some of which are not. For example, the Workmen's Compensation Board, by the statute creating it, is a body corporate; the Ontario Municipal Board is not.
There are cases in which it has been held that, notwithstanding the fact that the Act creating a body did not expressly declare it to be a body corporate, that body, as a necessary intendment from the enactment creating it, was liable to be sued and had capacity to sue. . . . [page333]
Clearly, there is nothing in The Labour Relations Act, 1948, c. 51 [sic], which created this defendant, supporting any such implication. Indeed, there are provisions in it which deny such an implication. In particular, s. 5 of the Act . . . provides that: "Subject to such right of appeal as may be provided by the regulations, the orders, decisions and rulings of the Board shall be final and shall not be questioned or reviewed nor shall any proceeding before the Board be removed, nor shall the Board be restrained by injunction, prohibition, mandamus, quo warranto, certiorari or otherwise by any court, but the Board may, if it considers it advisable to do so, reconsider any decision or order made by it and may vary or revoke any such decision or order."
The whole scheme and purpose of the Act is to deal with certain phases of the employer-employee relationship. The Board does not carry on any business. Its function is primarily administrative and it has been given power to exercise certain functions of a judicial nature. There is nothing the Act remotely suggesting that it was intended by the Legislature that the Board should have the capacity either to sue or to be sued. (ii) Application of the Westlake test
[42] In this case, the Divisional Court held that the motion judge, by finding that the Commission was a necessary party to the appellants' action, implicitly accepted that the Commission was a suable entity "without performing the necessary analysis to determine its status at law". I agree. In so doing, the motion judge erred.
[43] The Divisional Court then expressly considered the Westlake test for the determination of a statutory entity's liability to suit and concluded that the Commission, like the Ontario Securities Commission in Westlake, falls within that category of non-corporate statutory entities that are subject to proceedings brought against them by way of the extraordinary remedies, but that cannot be sued in an action. For the following reasons, I again agree.
[44] There is no dispute that the Commission is a non- corporate entity and that it is not expressly liable to suit by the terms of the Act.
[45] Nor, in my opinion, does the Act contain any indication of a legislative intent that legal capacity to be sued should be inferred in respect of the Commission. Indeed, the provisions of the Act relating to the Commission significantly undercut this suggestion. As the Divisional Court observed, at para. 22 of its reasons, the narrow statutory powers and duties assigned to the Commission under s. 28(4) of the Act, above- quoted, do not include the power to contract, to acquire or hold property, or to engage in commercial activity or otherwise conduct business. Such powers, if assigned to the Commission by the legislature, would support the conclusion that the Commission has the [page334] capacity to sue and to be sued:Hollinger; Westlake. It follows that the absence of such statutory powers strongly favours the opposite conclusion. [46] Similarly, s. 31(1) of the Act does not contemplate a right to sue the Commission. Section 31(1) applies to members of the Commission or anyone acting under their authority. It provides those persons with immunity from a claim for damages absent a showing of bad faith. It has no application to the Commission itself or even to claims against members of the Commission that do not involve a claim for damages.
[47] Thus, under the Westlake analytical framework, the Commission is not liable to suit for damages.
(iii) Declaratory and injunctive relief
[48] The appellants argue, however, that Westlake has no application in this case as it involved a suit for damages against a statutory entity rather than claims for declaratory and injunctive relief, as sought in this case against the Commission. They submit that so long as they do not claim damages against the Commission, declaratory and injunctive relief may be sought against it by way of action. They further contend that even where, as here, part of the relief claimed against the Commission implicates relief afforded by the prerogative writs, the common law right of action for declaratory relief remains available. I would not give effect to these arguments.
[49] In Smith v. New Brunswick (Human Rights Commission), 1997 CanLII 17791 (NB CA), [1997] N.B.J. No. 29, 143 D.L.R. (4th) 251 (C.A.), leave to appeal to S.C.C. dismissed [1997] S.C.C.A. No. 169, the New Brunswick Court of Appeal considered the viability of an action against the New Brunswick Human Rights Commission in which damages as well as declaratory, Canadian Charter of Rights and Freedoms and other relief were sought. Writing for a unanimous court, Bastarache J.A., as he then was, applied Westlake, observing that it "has been followed consistently" (at p. 254 D.L.R.). He concluded that the Human Rights Commission, as a statutory body exercising quasi-judicial functions, was "clearly not a suable entity" (at p. 257 D.L.R.) and stated, at pp. 256-57 D.L.R.:[C]ounsel for the Commission drew a distinction between claims seeking civil remedies against the Commission, and claims that are aimed at reviewing the decisions of the Commission because it acted without jurisdiction or lost jurisdiction because of the manner in which it acted. This raises the question of the appropriateness of striking out the portion of the Statement of Claim whereby Mr. Smith seeks a declaration that the affirmative action program instituted by the University of New Brunswick, and approved by the Commission, is of no force and effect, and that the Commission's decisions dismissing his complaints are of no force and effect. Stated differently, [page335] the question is whether Mr. Smith can avoid the application of Rule 69 of the Rules of Court [See Note 2 below] by asking for a declaration in the context of an action. I agree with the position taken by Jones and de Villars who have addressed this question at pp. 555-56 of their above-mentioned book [Principles of Administrative Law, 2nd ed. (Toronto: Carswell, 1994)].Given the flexible nature of the declaration, there are few limitations on its availability. When proceedings for a declaration are brought by way of action, the statutory body must have sufficient legal personality to be sued in its own right. For example, in B. v. Department of Manpower and Immigration, Commissioners of Inquiry, (1975) 1975 CanLII 1064 (FC), 60 D.L.R. (3d) 339 (Fed. T.D.), the Federal Court held that a declaration is not available against a federal board or tribunal unless its enabling legislation expressly states that it is a suable entity. Therefore a declaratory judgment is not available against such a delegate although it may be amenable to certiorari or prohibition. It is also generally agreed that a declaration is not available to correct an error of law or fact committed within a tribunal's jurisdiction. A declaration of invalidity cannot be granted by the court (unless any error was found to be patently unreasonable). In such an event, the only effective remedy would be certiorari wh ich enables the court to quash the decision of the tribunal when it is established that the tribunal exceeded its jurisdiction or erred in law within its jurisdiction. Nor, it appears, could the Court grant a declaration as to the applicant's rights in such a situation as the tribunal has made an ostensibly binding decision. [See Note 3 below] (Emphasis added) [50] The New Brunswick Court of Appeal therefore dismissed the plaintiff's action in its entirety, including his claims for declaratory relief. In my view, the reasoning in Smith is apposite in this case.
[51] I also note that Hollinger involved an action for declaratory and injunctive relief as against the Ontario Labour Relations Board, rather than an action for damages. Nonetheless, as the Board was not a suable entity, this court held that the action could not proceed.
[52] In my view, the appellants urge an unduly restrictive interpretation of Westlake. Nothing in Westlake suggests that the liability to suit of non-corporate statutory entities is augmented where declaratory or injunctive relief in the nature of certiorari, mandamus or prohibition is claimed. On the contrary, Westlake [page336] holds, at p. 538 O.R. (H.C.J.), that the fact that the actions or proceedings of a statutory entity are subject to review by way of the extraordinary remedies does not mean that the same entity is legally capable of being sued in an action for damages.
[53] And, as the respondents point out, Westlake does not say that an action for the extraordinary remedies of certiorari, mandamus or prohibition may be brought against non-corporate statutory entities. Rather, it contemplates "proceedings" for such remedies. Nor does Westlake stand for the proposition that where review of the conduct of a non-corporate statutory entity is available by way of an application for judicial review, an action for declaratory or injunctive relief against the same entity is also available. Indeed, in my view, Westlake suggests to the contrary.
[54] In the early 1970s, legislative reform of judicial review was introduced in Ontario under the JRPA. Under s. 2(1) of the JRPA, public and private law remedies -- with the exception of damages -- are integrated under a single form of proceeding in respect of any exercise of statutory power. [See Note 4 below] Section 2(1) states: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. [55] The Divisional Court in this case was alive to the different types of relief sought by the appellants against the various respondents. For example, at para. 24 of its reasons, it observed that the relief claimed against the Commission excluded damages but included the extraordinary remedy of prohibition. In fact, the relief claimed includes a prohibitory injunction, which is similar in effect to the writ of prohibition. The Divisional Court concluded that relief in the nature of prohibition must be sought against the Commission by way of judicial review, rather than by way of action. I agree. This conclusion is entirely consistent with Westlake and Smith.
[56] As well, under s. 7 of the JRPA, an application for an order in the nature of mandamus, prohibition or certiorari is [page337] deemed to be an application for judicial review and "shall be made, treated and disposed of as if it were an application for judicial review". I note that the appellants were unable to point to any authority in which prohibition was sought against a statutory entity by way of action rather than judicial review.
[57] Historically, private law remedies were seen as distinct from the prerogative remedies when they were sought to be invoked concerning the exercise of powers subject to public law. As Jones and de Villars comment in Principles of Administrative Law, 5th ed., supra, at p. 640:Certiorari and prohibition are now used exclusively to control the exercise of statutory authority and are confined to the public law field. They play no part in private law . . . On the other hand, a person may sometimes seek one of the private law remedies . . . in the context of an illegal governmental action, instead of obtaining certiorari or prohibition. (Footnotes omitted; emphasis added) [58] Later in the same text at pp. 755-57, Jones and de Villars emphasize that the use of the private law remedy of a declaration as a supervisory remedy in public law -- a relatively recent development -- is an alternative form of proceeding to an application for certiorari or prohibition.
[59] With the advent of the JRPA, however, the adaptation of declaratory and injunctive relief as public law remedies was entrenched by statute. Thus, under s. 2(1) of the JRPA, above- quoted, the court is empowered in the exercise of its discretion to grant such relief on a judicial review application.
[60] In this case, as I have said, the appellants seek both declaratory and injunctive relief against the Commission. They argue that the common law right of action for such relief was not abrogated by the JRPA and, further, that the jurisdiction of the Superior Court of Justice under the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA") to grant declaratory relief extends to the acts or omissions of both the Crown and statutory bodies like the Commission.
[61] There is no dispute that under the PACA, declaratory, although not injunctive, relief is available in a proceeding against the Crown in respect of the rights of the parties. Further, the Ontario Superior Court's jurisdiction pursuant to ss. 11(2) and 97 of the CJA [See Note 5 below] to make "binding declarations of right" and to exercise the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario is beyond controversy. [page338]
[62] But this does not mean that the Superior Court's jurisdiction to grant declaratory relief can be invoked in an action against a defendant that does not have the legal capacity to be sued in its own right.
[63] There is authority for the proposition that the JRPA does not preclude an action for a declaration in relation to the exercise of a statutory power: see, for example, Campbell Soup Co. v. Ontario (Farm Products Marketing Board) (1975), 1975 CanLII 582 (ON SC), 10 O.R. (2d) 405, [1975] O.J. No. 2501 (H.C.J.), at para. 115, affd (1977), 1977 CanLII 1857 (ON CA), 16 O.R. (2d) 256, 77 D.L.R.(3d) 725 (C.A.). Indeed, as the motion judge noted in this case, s. 8 of the JRPA, which authorizes the summary disposition of an action for a declaration or injunction as if it were an application for judicial review in certain circumstances, recognizes that such an action may be brought: Campbell Soup, at para. 115. Furthermore, s. 2(1) of the JRPA does not say that the grant of a declaration or an injunction in respect of administrative action may only be obtained pursuant to the JRPA.
[64] Yet nothing in Campbell Soup or the JRPA derogates from the central principle that suability is a prerequisite to the court's jurisdiction to entertain the claims advanced by a plaintiff against a defendant. As the New Brunswick Court of Appeal said in Smith, at p. 256 D.L.R., in the context of Charter claims, "[I]n all cases, the Court must have jurisdiction over the party being sued before it can deal with the claim being made. The test in Westlake is applicable to determine this issue."
[65] The same point is made by J.M. Evans and D.J.M. Brown in Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998), at 1:8200, note 470:"[A]n injunction may not issue against a tribunal or other administrative body eo nomine [by or in that name] that is not a suable entity." The authors elaborate, at 4:2400:Unless they are incorporated or their constitutive statute provides otherwise expressly or by implication, independent administrative agencies are not legal entities. However, as with other unincorporated entities, there are legislative provisions enabling them to be made respondents in those jurisdictions where the law of judicial review has been reformed. For example, Ontario's [JRPA] provides that for the purpose of an application for judicial review in relation to the exercise or non-exercise of a statutory power, "the person who is authorized to exercise the power may be a party" [s. 9(2) of the JRPA], and any two or more persons who, acting together, may exercise a statutory power, whether styled a board or commission or by any other collective title, shall be deemed to be a person under such collective title [s. 9(3) of the JRPA]. (Footnotes omitted) [page339] [66] The appellants rely especially on Bingo Enterprises Ltd. v. Manitoba (Lotteries and Gaming Licensing Board), 1983 CanLII 3648 (MB CA), [1983] M.J. No. 57, 23 Man. R. (2d) 33 (C.A.) and Seaway Trust Co. v. Ontario (1983), 1983 CanLII 1780 (ON SC), 41 O.R. (2d) 501, [1983] O.J. No. 2211 (Div. Ct.), revd (1983), 1983 CanLII 1749 (ON CA), 41 O.R. (2d) 532, [1983] O.J. No. 2210 (C.A.), leave to appeal refused [1983] S.C.C.A. No. 127, 52 N.R. 235, to contend that the Commission is liable to suit for declaratory and injunctive relief notwithstanding the provisions of the JRPA.
[67] These cases do not assist the appellants. In Bingo Enterprises, the court relied on Westlake to strike a statement of claim in which damages and injunctive relief were sought against a non-corporate statutory entity on the ground that the entity in question lacked suable status. However, the court held that an originating notice of motion, in which declaratory relief was claimed against the same entity, was an acceptable alternative to a claim for mandamus. Thus, while the court recognized that declaratory relief could be sought against the relevant entity, recovery of that relief by way of action was not permitted and an originating notice was held to be the appropriate procedure.
[68] As to the decision of this court in Seaway Trust, that case involved an application by the Attorney General of Ontario and others to quash two applications for judicial review regarding the validity of legislation enacted by the Government of Ontario that permitted the seizure and control of a trust company's property, without a hearing, in certain circumstances. Both applications sought declaratory and injunctive relief, including Charter-based relief and, in one application, damages were sought for property wrongfully seized. The Attorney argued that the applications as constituted sought relief available by way of action and not available by way of application to the Divisional Court. In other words, unlike this case, the Attorney sought to compel an action and to prevent judicial review.
[69] A majority of the Divisional Court in Seaway Trust dismissed the Attorney's application. However, in dissent, Craig J. held that the Attorney's application should be granted and the judicial review applications quashed since all the relief claimed could be sought in an action, whereas part of the relief -- for example, the determination of liability and the assessment of damages -- was not available in the Divisional Court. In Craig J.'s opinion, in these circumstances, it was inappropriate to allow the judicial review applicants to "split their cases and dispose of the issues piecemeal" (at p. 532 O.R.).
[70] An appeal to this court was allowed, essentially for the reasons of Craig J.: (1983), (C.A.), supra. However, in allowing the appeal, this court emphasized, at p. 533 O.R., the "highly [page340] unusual", indeed "unique", factual circumstances of the case and further commented, "[A] wide variety of diverse and compelling interests are involved . . . an extensive review of evidence will be required before a conclusion can be reached regarding the validity of the impugned legislation. Findings of fact based upon assessments of credibility will have to be made." All these compelling factors favoured resort to trial, rather than to the judicial review process.
[71] Given its "highly unusual" and "unique" facts, I do not regard Seaway Trust as establishing any general principle that relief otherwise available on judicial review may be sought alternatively by way of action. Nor, in my view, should Seaway Trust be viewed as a precedent for such a principle in circumstances where the relief claimed against one defendant is within the jurisdiction of the Divisional Court, while some or all the relief claimed against other defendants is not. More importantly, the named respondents in the judicial review applications at issue in Seaway Trust and, thus, the proposed defendants in the action urged by the Attorney in that case, were all suable entities. As a result, unlike this case, no question regarding the court's jurisdiction over the person of the respondents or proposed defendants arose in Seaway Trust.
[72] I note that the other Ontario authorities relied on by the appellants involve either corporate or non-corporate defendants who meet the Westlake test for suability, including the Crown, or applications under s. 8 of the JRPA. [See Note 6 below]
(iv) Additional considerations
[73] Two final considerations deserve mention. First, as I have indicated, the respondents' motion for an order dismissing the action as against the Commission was brought in part under rule 21.01(3)(b). That rule permits a defendant to move before a judge to have an action stayed or dismissed summarily on the ground that the defendant does not have the legal capacity to be sued. Rule 21.01(3)(b) thus envisages that an action cannot be brought against a non-suable entity regardless of the claims advanced and the relief sought. [page341]
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(v) Alternative procedures
[78] The appellants, however, argue that two alternative procedures are available for the pursuit of their claims against the Commission. They submit that if the Commission is not a suable entity in its own right for the purpose of obtaining declaratory and injunctive relief, the relief sought against the Commission may be obtained against the Crown, which is already a named defendant in the appellants' action. In the further alternative, they argue that if the Crown is not directly answerable for the Commission's actions, the Divisional Court erred by failing to consider and permit the addition of the Attorney General for Ontario as a party defendant in substitution for the Commission in accordance with Dyson v. Attorney-General, [1911] 1 K.B. 410 (Eng. & Wales C.A.) (the "Dyson procedure").
[79] I would not accede to these arguments in this case. Before the Divisional Court, the appellants acknowledged that pursuant to s. 5(2) and 5(4) of the PACA, [See Note 7 below] if the individual respondents are not liable for the matters alleged against them, the Crown is similarly not liable. I agree. As I will explain later in these reasons, it is my opinion that the appellants' statement of claim does not disclose a reasonable cause of action against the Subcommittee Members. It is not alleged that the motion judge erred by striking the statement of claim against the remaining 14 individual respondents. Accordingly, the appellants' action as framed cannot proceed as against the Crown.
[80] Further, it is inappropriate in this case to permit the appellants to now resort to the Dyson procedure. We were informed that in neither proceeding below did the appellants seek to amend their pleading to add the Attorney General for Ontario as a defendant. Rather, they invoke the Dyson procedure for the first time on this appeal. Importantly, the appellants have pointed to no case in which the Dyson procedure has been employed absent a challenge to the validity or applicability of legislation. No challenge of this kind is brought in this case.
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