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Judicial Review - Statutory Power of Decision (3). Valero Energy Inc. v. Minister of the Environment
In Valero Energy Inc. v. Minister of the Environment (Div Ct, 2026) the Divisional Court dismissed a motion, here seeking "an order compelling the respondents to produce a record of proceedings or record of decision in this application for judicial review. The respondents have produced a record, which Valero submits is insufficient.".
Here the court considers a motion for a 'better' JR record, wherein an issue arose as to whether the underlying decision was "a statutory power of decision" within the meaning of the 'Record to be filed in court' provision [JRPA s.10]:[2] Although Valero acknowledges that it is not entitled to “discovery of documents” from the respondents, it has put forward numerous arguments to attempt to show that it should nonetheless have an order to produce documents from the respondents beyond the record that has already been provided.
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[7] The record already provided by the respondents contains the entire public record, including the proposal and rationale for the impugned regulation, public notice, the public consultation, and other documents regarding the impugned regulation. However, Valero submits that it should receive all the internal materials that were before the Cabinet when the Cabinet made the impugned regulation and all of the documents that were before the Minister in relation to the other two alleged decisions, subject only to proper claims of privilege. Valero further seeks an affidavit or other certification as proof that the record is complete.
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[9] As discussed below, there is no statutory entitlement to all the documents that were before the Cabinet or the Minister. This is a request that I exercise an inherent jurisdiction to control the process for this application for judicial review, outside the normal process, and order the production of documents when there is no statutory obligation to do so.
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[16] The applicant submits that it should have a further and better record of proceedings or record of decision.[1] Essentially, the applicant submits that there may be a right to a record of proceedings under the Judicial Review Procedure Act, R.S.O. 1990, c J.1 (JRPA) and, if not, there should be production under this Court’s inherent jurisdiction, the common law and r. 68 of the Rules of Civil Procedure.
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[18] Beginning with the obligation on a respondent to produce a record of proceedings, which is provided for under s. 10 of the JRPA, it is statutorily defined and limited.[2]
[19] For good reason, The applicant does not seriously contend that the judicial review of the making of a regulation requires the provision of a record of proceedings under s. 10 the JRPA. The obligation to produce a record of proceeding applies only to the exercise or purported exercise of a “statutory power of decision”. As set out in s. 1(1), the power to make a regulation is a “statutory power” but it is not included in the narrower definition of a “statutory power of decision”. There is no obligation to produce a record of proceedings.
[20] There is then the question of whether the other alleged decisions, by the Minister, are the exercise or purported exercise of a “statutory power of decision”.
[21] Beginning with the alleged decision of the Minister to implement the policy proposal, it is apparent from the legislation that the Minister did not have a decision-making role. Subsection 1(6)(c) of the EBA expressly provides that a proposal for a regulation “is implemented when the regulation that would implement the proposal is filed with the Registrar of Regulations in accordance with Part III (Regulations) of the Legislation Act, 2006…”. The Minister did not have any decision-making role in implementing the impugned regulation.
[22] The inclusion of this alleged Minister’s “decision” in the notice of application is perhaps entirely explained by the wording used in one of the public documents. The Ministry published a document entitled “Decision Summary”, with a subheading “Decision Details” and using informal language such as: “We decided to proceed with domestic bio-based content requirements…” While this document supports some caution on the part of the applicant regarding whether there was a decision by the Minister, it does not change the legal regime. There was no statutory power of decision exercised or purported to be exercised by the Minister to implement the regulation.
[23] The other “decisions” asserted by the applicant are also not the exercise or purported exercise of a “statutory power of decision”. The notice of application asserts that they are breaches of procedural fairness. There was a public notice and comment process under s. 16(1) of the EBR, which the applicant alleges was insufficient. The applicant further submits that there was a failure to publish a regulatory impact analysis. However, under s. 27(4) of the MOPBA, that publication is only required if the Minister considers that it is necessary to do so in order to permit more informed public consultation on the proposal. Here, it was not done.
[24] The applicant relies on Greenpeace Canada v. Minister of the Environment (Ontario), 2019 ONSC 5629 regarding these alleged Ministerial decisions. However, Greenpeace was a case where the Minister decided not to consult on a proposal under the EBR at all, despite a mandatory statutory obligation to do so. There is no such Ministerial decision in this case. There was a public consultation as is shown in the respondents’ record.
[25] These alleged statutory breaches are not separate decisions, nor are they the exercise or purported exercise of separate statutory powers of decision. They may still be relied on in the application.
[26] The applicant is therefore not entitled to a record of proceedings.
[27] The applicant then submits that even though the JRPA does not impose an obligation to produce a record of proceedings, all the documents before Cabinet and the Minister should be produced to it in this case. The applicant relies on this Court’s inherent jurisdiction to control its process, citing cases such as CCSAGE Naturally Green v. Director, Sec. 47.5 EPA, 2018 ONSC 237.
[28] In CCSAGE, the respondent had also provided a record that the applicant found insufficient. There was also no obligation on the respondents to deliver a record of proceedings under the JRPA. The motion judge observed, at para. 68, that the panel hearing the application must still have sufficient information to allow it to make a decision, relying on r. 68. The motion judge noted, at para. 68, that depending on the circumstances of the decision at issue, the nature of the record may vary.
[29] In CCSAGE the requested production was denied. Even though the motion judge found that because of the nature of the decisions that were at issue, the respondents would be expected to assist in providing the necessary documentation, the motion judge held: “... I can say without hesitation that I cannot imagine a circumstance where the documentary productions requested ... could be required. ... The request for records amounts to a fishing expedition. Judicial review does not afford a party with a right to documentary discovery.”
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[41] I have considered all the applicant’s submissions in support of this request that there be an extraordinary order for the broad production of internal documents in this case. In summary, the JRPA has delineated the obligation to produce a record of proceedings and excludes this challenge to a regulation. At its core, this application raises vires issues regarding the division of powers and regulation-making authority requiring statutory interpretation. I am not persuaded that the respondents’ record is inadequate to the task at hand such that the respondents should have added production obligations. Judicial review is intended to be a focused challenge to certain decisions, and ought not to be burdened down in what is essentially a discovery process.
[42] To the extent that there is inherent jurisdiction to control this Court’s process, it does not need to be exercised in this case. . Valero Energy Inc. v. Minister of the Environment
In Valero Energy Inc. v. Minister of the Environment (Div Ct, 2026) the Divisional Court dismissed a motion, here seeking "an order compelling the respondents to produce a record of proceedings or record of decision in this application for judicial review. The respondents have produced a record, which Valero submits is insufficient.".
Here the court notes limits on the 'Record to be filed in court' duty embodied in JRPA s.10:[18] Beginning with the obligation on a respondent to produce a record of proceedings, which is provided for under s. 10 of the JRPA, it is statutorily defined and limited.[2]
[19] For good reason, The applicant does not seriously contend that the judicial review of the making of a regulation requires the provision of a record of proceedings under s. 10 the JRPA. The obligation to produce a record of proceeding applies only to the exercise or purported exercise of a “statutory power of decision”. As set out in s. 1(1), the power to make a regulation is a “statutory power” but it is not included in the narrower definition of a “statutory power of decision”. There is no obligation to produce a record of proceedings. . BizTech v. Accreditation Canada
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court sets out basics of the availability of judicial review, here in light of the 'statutory power' and 'statutory power of decision' concepts used in the JRPA:E. THE AVAILABILITY OF JUDICIAL REVIEW
[57] CMRITO and Accreditation Canada raise a preliminary issue of jurisdiction. They submit that the Decision is a private contractual matter and not amenable to judicial review: Astro Zodiac Enterprises Ltd. v. Exhibition Place (Board of Governors), 2022 ONSC 1175 (Div. Ct.), 28 M.P.L.R. (6th) 20, at paras. 22-37.
[58] BizTech responds that Accreditation Canada exercised a “statutory power of decision” as defined in s. 1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”).
[59] Subsection 2(1) of the JRPA sets out this court’s jurisdiction to hear an application for judicial review:2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may ... 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. [60] Section 1 of the JRPA defines “statutory power” to include a power or right conferred by or under a statute “to exercise a statutory power of decision.” “Statutory power of decision” is defined in s. 1 to mean a power or right conferred by or under a statute to make a decision deciding or prescribing;(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not ... . [61] A statutory power of decision is required before the remedy of a declaration can be ordered. While this remedy is included in their Notice of Application, the effective remedy BizTech seeks is the quashing of Accreditation Canada’s decision not to accredit the DMS program. Jurisdiction to issue an order in the nature of certiorari under s. 2(1)1 of the JRPA is not limited to statutory powers of decision, and not all statutory powers of decision are subject to judicial review.
[62] Hence, it is not necessary to show that Accreditation Canada has exercised a statutory power of decision: Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, at paras. 29-32. Rather, the fundamental issue is whether the decision to terminate accreditation is (a) an exercise of state authority, and (b) of sufficiently public character that public law remedies are available: Wise Elephant Family Health Team v. Ontario (Ministry of Health), 2021 ONSC 3350 (Div. Ct.), at para. 72.
[63] Judicial review is only available when “there is an exercise of state authority and where that exercise is of a sufficiently public character”: Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 14. . Caruso v. The Law Society of Ontario
In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.
In these quotes the court considers the SPPA definitions of "tribunal" and "statutory power of decision" [in SPPA s.1]:[50] The Applicant relies on the definitions of “tribunal” and “statutory power of decision” in s. 1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA), which provide:“tribunal” means one or more persons, whether or not incorporated and however described, upon which a statutory power of decision is conferred by or under a statute;
“statutory power of decision” means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not; [51] The Applicant argues that an immigration application is a document submitted to a person (such as the Minister of Citizenship and Immigration or an officer appointed by the Minister) upon whom a statutory power of decision has been conferred by the IRPA. That person has the authority to decide or prescribe legal rights and privileges, and therefore fits within the definitions of “tribunal”. As such, it is the Applicant’s position that immigration applications fit squarely into the definition of “proceeding before a tribunal” in By-Law 4.
[52] The LSO argues that an application to IRCC is not a “proceeding” within the meaning of s. 6 of By-Law 4. Some applications are made directly to the Minister, such as applications for relief on humanitarian and compassionate grounds (s. 25) and applications for exemption from certain statutory grounds of inadmissibility (s. 42.1). Other applications (such as applications for permanent residence and other visas) are made directly to an “officer” (s. 11). An “officer” is a person designated by the Minister under s. 6(1). The Minister may delegate the exercise of certain of the Minister’s authorities to such officers under s. 6(2). For example, the officers designated to process applications for permanent residence and other visas are typically front-line case workers employed by the IRCC. Similarly, the Minister delegates authority to IRCC case workers to determine applications for relief on humanitarian and compassionate grounds. These decision makers are not “tribunals” in the sense of an adjudicative body, but rather government departments acting to implement authority delegated to the Minister.
[53] In my view, the LSO’s interpretation of By-Law 4 is a reasonable and correct interpretation.
[54] I reach this conclusion for the following reasons:
[55] First, s. 1(5) – (7) of the Law Society Act (quoted above at para. 14) define “provides legal services” and sets out the scope of prohibitions against the unauthorized provision of legal services in s. 26.1 of the Act. The word “proceeding” appears in ss. 1(6) 2(vii) and 3:1(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:
2. Selects, drafts, completes or revises, on behalf of a person,
vii. a document for use in a proceeding before an adjudicative body.
3. Represents a person in a proceeding before an adjudicative body. [Emphasis added.] [56] Both references to “proceeding” in the Act relate to proceedings before an adjudicative body.
[57] The word “proceeding” in By-Law 4 should be given the same interpretation as the word “proceeding” in the enabling legislation. “Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation”: R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378, at para. 19; Ruth Sullivan, The Construction of Statutes, 7th ed (Lexis Nexis Canada Inc., 2022) at § 8.04.
[58] I agree with the LSO that an application to the Minister or to IRCC officers or case workers is not a “proceeding” within the meaning of s. 6 of By-Law 4. Filing a written application to a government department does not begin the hearing process. While the Minister and officers under the IRPA may review applications and make initial decisions regarding a person’s immigration or refugee status, they are not “adjudicative bodies” as that term is generally understood in the legal profession.
[59] In contrast, the various divisions of the IRB, (the Refugee Protection Division, Refugee Appeal Division, Immigration Division and Immigration Appeal Division) clearly fall within the term “adjudicative bodies”.
[60] This interpretation is supported by the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, which dealt with the content and duty of procedural fairness placed on immigration officers under the former Immigration Act, R.S.C., 1985, c. I-2. The Court found that while a duty of procedural fairness applies to a decision of an immigration officer, the process was still an administrative process rather than an adjudicative process, and that no oral hearing was required.
[61] By-Law 4 must be interpreted in accordance with the modern rule of statutory interpretation, which requires that the words of an Act “be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Mangat at para. 6; Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 69 and cases cited therein.
[62] In my view, the suggestion that an immigration officer who reviews written applications is a “tribunal” or an “adjudicative body” is not consistent with the ordinary sense in which those words are used, nor with the schemes of the IRPA or Law Society Act.
[63] Second, the meaning of a “tribunal established under an Act of Parliament” in s. 6(2) 1 (iv) of By-Law 4 is clarified by a consideration of the other bodies before which paralegals are authorized to appear under s. 6 of By-Law 4. Most of those bodies are courts (Small Claims Court, Provincial Offences Act court, and summary convictions court). This indicates that “tribunal” in this context is intended to refer to a quasi-judicial adjudicative body. . Lempiala Sand & Gravel Limited v. Ontario (Ministry of Northern Development, Mines, Natural Resources and Forestry)
In Lempiala Sand & Gravel Limited v. Ontario (Ministry of Northern Development, Mines, Natural Resources and Forestry) (Div Court, 2023) the Divisional Court considered a JR of decision by the Ministry of Northern Development, Mines, Natural Resources and Forestry (the 'Ministry') to grant an aggregate permit on Crown land to a competitor under the Aggregate Resources Act (ARA).
The basis of this JR appears to be under JRPA s.2(1)2 [ie. "(p)roceedings 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"] as a 'statutory power of decision' although, unusually, the permit issuance lacked any administrative tribunal appeal role or route. This lack appears to be a function of ARA s.43-44 where Crown land are not included in the Ontario Land Tribunal appeal/hearing system, which would otherwise apply to aggregate resources on private land. This legal configuration makes the case sort of a pure exercise of Vavilov JR doctrine, without any intervening tribunal substantive or procedural law. As well, as there is no statutory 'hearing' required, the Statutory Powers Procedure Act was not brought to bear [presumably by virtue of SPPA 3(1)]. There does not appear to have been any argument that a hearing might have been required as a matter of common law.
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