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Judicial Review - Not for Advisory Roles (2). Segura Mosquera v. Child and Family Services Review Board
In Segura Mosquera v. Child and Family Services Review Board (Div Court, 2023) the Divisional Court considered a set aside motion against a R2.1 order that dismissed a JR by the applicant against a police board, here on grounds that no JR-justiciable decision was made:[14] Citing Currie v. Halton Regional Police Services Board (2003), 2003 CanLII 7815 (ON CA), 233 D.L.R. (4th) 657 (Ont. C.A.), at para. 14, the motion judge determined that the JRA was, on its face, frivolous, because it lacked a legal basis or merit and was not “reasonably purposeful”.
[15] In reaching the above conclusion, the motion judge noted that the jurisdiction of this court to hear an application for judicial review is found at s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), which jurisdiction rests on the existence of the exercise of a statutory power of decision. At para. 12 of her Endorsement, Ryan Bell J. notes that “[i]n order to be subject to judicial review, a statutory power of decision ‘must be a specific power or right to make the very decision in issue’”, referencing Paine v. University of Toronto et al. (1981), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 772, leave to appeal to S.C.C. refused, 35 O.R. (2d) 528.
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Analysis
[20] The heart of the motion judge’s findings is that, as pleaded, the relief sought as against the OPS lacks a legal basis or legal merit. On its face, the JRA refers to a decision made by the OPS, which was reviewed by the IPC. The motion judge observes that no reviewable OPS decision is identified in the JRA.
[21] I see no error in law or in fact in the reasons for the Dismissal Order, given by the motion judge. The motion judge properly directed herself on the law and, on the pleadings before her, her decision was neither clearly wrong, nor was there no, nor insufficient, weight given to relevant considerations.
[22] In addition, I conclude that the motion judge was correct in concluding that the relief apparently sought by Segura was not judicial review of a decision but, rather, a review or “audit” of the OPS’s policies and procedures. Such a review or audit is not within the purview of a judicial review application brought under the JRPA; as such, as to the relief sought as against the OPS, the motion judge properly exercised her discretion in concluding that the JRA had no merit and could be properly classified as “frivolous, vexatious or an abuse of process”.
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