Simon's Megalomaniacal Legal Resources

JR - Charter-Constitutional

Swinton v. The Attorney General of Ontario

In Swinton v. The Attorney General of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court considers the declaratory JR jurisdiction of the Divisional Court:

[6] The Divisional Court is a statutory court. It is a court of review. Its jurisdiction is limited to those matters conferred by statute.

[7] The jurisdiction of the Divisional Court to grant declaratory relief in an application for judicial review is set out in paragraph 2 of s. 2(1) of the Judicial Review Procedure Act (“JRPA”). Subsection 2(1) provides:

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.

[8] A statutory power is defined in s.1 of the JRPA to mean a power or right conferred by statute

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation.

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.

[9] The jurisdiction of the Court was recently summarized by the Court of Appeal as follows:

The Judicial Review Procedure Act sets out this Court's jurisdiction over applications for judicial review. Subsection 2(1) of the Act gives the Court its powers to grant relief. ... Subsection 2(1)2 deals with declaratory relief, which is what the applicant primarily seeks on this application for judicial review. Specifically, subsection 2(1)2 gives the Court the authority to make a declaration in relation to the "exercise, refusal to exercise or proposed or purported exercise of a statutory power". This provision does not give the Court broad powers to make declarations about government action, including desired government action. Rather, this provision limits the Court's power to grant declaratory relief to circumstances where the government or public body has exercised, refuses to exercise or proposes to exercise a statutory power.

This means that there are at least two preconditions before the Divisional Court can grant a declaration on an application for judicial review. First, the declaratory relief sought must arise from a statutory power. Second, there must be an actual exercise, refusal to exercise or proposed exercise of that statutory power. In other words, the Divisional Court does not have jurisdiction to make declarations about abstract questions regarding government action or inaction.

See Daneshvar v Her Majesty the Queen in Right of Ontario, 2021 ONSC 3186 at paras 29-31.

[10] The declaratory relief sought in the present case fails to satisfy both preconditions identified by the Court of Appeal above: It is not in relation to a statutory power; and it does not involve the exercise, refusal to exercise or proposed exercise of that statutory power.

[11] The enactment of amendments to an Act is not an exercise of statutory power because it is not “a power or right conferred by or under a statute.”. The applicant has not shown that the amendments to the ESA or the regulations constituted an exercise of “statutory power”.

[12] The Divisional Court will only have jurisdiction to grant declaratory relief on an application for judicial review in the context of a Charter challenge where the government action relates to the exercise, refusal to exercise or proposal to exercise a statutory authority: Di Cienzo v. Attorney General of Ontario, 2017 ONSC 1351, at paras. 19-22, citing Falkiner v. Ontario Ministry of Community and Social services (1996), 1996 CanLII 12495 (ON SCDC), 140 D.L.R. 115 (Ont. Div. Ct.).

[13] The application as a whole challenges the entire regime of the licencing regime. The fact that regulations are implemented, is only incidental to the overall regime set out in the statute.

[14] The addition of the Charter arguments does not give the Court broader authority. As stated by this court in Apitipi Anicinapek Nation v. Ontario, 2025 5033, para. 17, “the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge.”

[15] Having considered all the submissions, I conclude that the relief sought by the applicant does not fall within the jurisdiction of this Court under s. 2(1) of the JRPA. That claim is properly addressed before the Superior Court, not in this application for judicial review.

. Vervoort et al v. Minister of Health et al [JR versus R14.05 Application]

In Vervoort et al v. Minister of Health et al (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought to "challenge the recent Ontario government policy affecting his eligibility for medical residency".

Here the court determines that the addition of Charter grounds does not expand JR jurisdiction, and the consequent need to re-file this as a Superior Court R14.05 application:

Alleged Charter Violations

[25] I also agree with the respondents that the inclusion of Charter arguments does not give the court broader jurisdiction. As stated by this court recently in Apitipi Anicinapek Nation v. Ontario, 2025 ONSC 5033, at para. 17, “the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge.”

[26] Apitipi involved an application for judicial review to challenge a decision of the Minister of Natural Resources in connection with a water management plan. The applicant sought administrative law remedies, such as an order quashing the Minister’s decision as unreasonable and not in compliance with the Crown’s duty to consult. The applicant also sought a declaration that the relevant legislation, regulations and policies were unconstitutional as inconsistent with s. 35 of the Constitution Act, 1982.

[27] A panel of this court concluded that, although there was jurisdiction to challenge the Minister’s decision on administrative law grounds in Divisional Court, the constitutional challenge plainly fell outside the court’s jurisdiction. It therefore transferred the constitutional challenge to the Superior Court.

[28] The applicants submit Apitipi is distinguishable because the focus there was on the inability to challenge abstract government inaction. I disagree. While there is a specific policy at issue in the current case, that does not change that there is no jurisdiction, as derived from the JRPA, to review that policy. The Charter challenge cannot expand jurisdiction that does not exist from the outset.

[29] In this case there appears to be no need to transfer the constitutional challenge to the Superior Court because, following a case conference in this court on November 24, 2025, counsel for the applicants filed an application in the Superior Court under r. 14.05 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. The application was brought on behalf of different applicants but challenges the same policy on the same constitutional grounds and relies on much of the same evidence. A motion in the r. 14.05 application was scheduled before the Superior Court on December 1, 2025.

. Apitipi Anicinapek Nation v. Ontario [IMPORTANT re constitutional Divisional Court jurisdiction] [venue]

In Apitipi Anicinapek Nation v. Ontario (Ont Div Ct, 2025) the Ontario Divisional Court allowed a Crown motion, here seeking "to quash part of the underlying application for judicial review for lack of jurisdiction".

The court considers whether it (as the Divisional Court in a JR) has jurisdiction to consider a Constitution Act s.52(1) declaration remedy, here in an indigenous context:

[15] The moving parties therefore move to strike out those parts of the notice of application for judicial review that seek relief under s. 52 of the Constitution Act, 1982, as set out in the notice of motion, and the related notice of constitutional question. The AAN disagrees, submitting that the Divisional Court has jurisdiction.

[16] The substantive jurisdiction of the Divisional Court is statutory. It is a court of review. It has statutory appellate jurisdiction as set out in the Courts of Justice Act, R.S.O. 1990, c. C.43 (the CJA) and other statutes, which is not at issue here. Its jurisdiction on applications for judicial review, which is at issue here, is found in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the JRPA).

[17] Contrary to the AAN’s submissions, the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge. Nor does r. 14.05 of the Rules of Civil Procedure expand the Court’s substantive jurisdiction on an application for judicial review: J.N. v. Durham Regional Police Service, 2012 ONCA 428, at para. 16.

[18] Section 2 of the JRPA sets out this Court’s jurisdiction for an application for judicial review. It is limited to applications for an order “in the nature of mandamus, prohibition or certiorari”, and other proceedings for a declaration or injunction “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”. The Constitutional Challenge put forward in this application for judicial review does not fall within this jurisdiction.

[19] The JRPA defines “statutory power” and “statutory power of decision” in s. 1. The closest the Constitutional Challenge comes to falling within that definition is the general reference to regulations as part of the LARIA “Regime”. However, the application for judicial review does not assert that any regulation made under LARIA is unauthorized or invalid. The AAN is concerned about the absence of a statutory power to proceed with its proposal to the MNR under LARIA. The AAN seeks an order that the LARIA Regime be amended within one year after the requested s. 52 declaration to provide for the duty to consult under s. 35 to be triggered and met.

[20] With respect to s. 35 of the Constitution Act, 1982, legislation and the exercise of statutory powers must comply with s. 35. However, s. 35 is not itself a statutory power under the JRPA: Whiteduck v. Ontario, 2023 ONCA 543, para. 60; JRPA, s. 1; Legislation Act, 2006, S.O. 2006, c. 21, Sch F, s. 87.

[21] Further, the legislative process at large is not the exercise of a statutory power: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at paras. 2, 18, 33, 38, per Karakatsanis J; Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161 (Div. Ct.), at para. 38.

[22] Nor is this a question of which procedure is preferrable. “Once jurisdiction is determined, then the procedure to be followed is the procedure prescribed in the forum with jurisdiction”: Alford v. Law Society of Upper Canada, 2018 ONSC 4269, at para. 45.

[23] The AAN further submits that this Court may hear the Constitutional Challenge because it is ancillary to the judicial review of the Decision. Most germane are two decisions of this Court: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 and Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708.

[24] In Mississauga First Nation, at para. 54, the Court found that a constitutional challenge to amendments to legislation was ancillary to and dependent on the determination of the duty to consult in a judicial review application. However, in that case, the Court found that there was a refusal to exercise a statutory power, based on an unreasonable delay of about three years in addressing the application for judicial review, during which time the legislation was amended to remove a key statutory provision. Similarly, in Regional Municipality of York, an environmental assessment was pending for several years during which an amendment was passed that rendered the matter moot.

[25] We do not have like circumstances in this case. There was no inter-related step taken after the Decision to undermine the challenge to the Decision in this application for judicial review. The Constitutional Challenge to the entire Regime, and related request that the Regime be amended, is not merely support for the judicial review. It is a request for broad primary relief including legislative amendments and should be decided by a Superior Court judge. The provincial superior courts have always occupied a position of prime importance to rule on the constitutional validity of legislation: MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at pp. 752-753. The cases relied upon by the AAN do not approach what would be needed to show that the Constitutional Challenge is ancillary to this application for judicial review.

[26] Having considered all the AAN submissions, we conclude that the Constitutional Challenge plainly does not fall within the jurisdiction of this Court under s. 2(1) of the JRPA. That claim is properly addressed before the Superior Court, not in this application for judicial review.

[27] In reaching this decision, we have taken into account the importance of s. 35 of the Constitution Act, 1982, and all that it serves, as well as the importance of access to justice. While those principles do not expand the Court’s jurisdiction as broadly as is suggested by the AAN on this motion, they are reasons to exercise our jurisdiction to transfer the Constitutional Challenge to the Superior Court along with terms to facilitate a smooth transfer.