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Judicial Review - Statutory Power of Decision (3). 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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