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JR - Policy. Cycle Toronto v. Ontario (Attorney General)
In Cycle Toronto v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against the granting of a JR which found that requiring "the removal of bicycle lanes from three downtown Toronto streets" under HTA s.195.6 ['Existing lanes in the City of Toronto, direction to restore'] and related regulations breached Charter s.7 ['life, liberty and security of the person'].
The court considers the role of JR in a Charter context:The role of the courts on Charter challenges
[20] It is important to avoid approaching judicial review under the Charter in a technical or mechanical fashion. The Charter is part of a larger democratic constitutional order and must be interpreted and applied in the context of that order and all that it entails.
[21] The starting point is this: ours is a Westminster parliamentary democracy with well-defined constitutional roles. As the preamble to the Constitution Act, 1867 states, Canada has “a Constitution similar in Principle to that of the United Kingdom”, a constitution that by 1867 had been directing the political branches of government for centuries. In that system, the executive proposes legislation but the decisions whether to legislate and how to do so belong to the legislature. Courts play no role in the policy development process, no role in the choices made by the government in proposing legislation, and no role in the legislature’s decision to pass a law. The role of the courts is to adjudicate disputes arising under the law once it is enacted. This separation of powers is a bedrock principle of constitutional law and it is uncontroversial in our legal tradition: see Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 27-31; The Honourable Malcolm Rowe, Chris Puskas and Allyse Cruise, “The Separation of Powers in Canada” (2024) 1 S.C.L.R. (3d) 323.
[22] Now, courts learn a great deal about a matter in the course of judicial review proceedings, and judges may be tempted to comment on matters of policy. The temptation to do so may be great; judges may suppose that they have much to offer to public policy debate. But the temptation must be resisted. It is not just that courts have no expertise in policy making – no expertise in making the sorts of polycentric decisions that legislatures make routinely. It is illegitimate for courts to involve themselves in matters of legislative policy. Policy is for politics. Whether courts think legislation is wise or unwise, is irrelevant so far as its constitutionality is concerned, and constitutionality is the only question with which courts are legitimately concerned: see e.g., Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at para. 3; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 173; and Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1142, per Dickson C.J.
[23] With respect, the application judge lost sight of this principle when, in the course of outlining the background to the application, he weighed in on policy and political considerations. He commented extensively on the political background to the legislation, recounting remarks by the Premier and Minister of Transportation, contested data concerning road use, and exchanges at legislative committee proceedings. He quoted at length from members of the public and organizations opposed to passage of the legislation, as well as the Mayor of Toronto and the City Manager – all of this prior to addressing the only matter with which the court was properly concerned: whether the legislation violated the Charter. Indeed, the application judge’s decision is replete with criticism not only of the legislation but also of the government’s conduct in promoting its passage. He went so far as to express concern that the legislation was passed despite the government’s internal policy advice and public criticism of the bill.
[24] None of this was relevant to the task before him.
[25] Lest there be any doubt: in formulating policy or legislating, neither the government nor the legislature is under any obligation to accept policy advice, whether from bureaucrats, experts, or members of the public. The choices they make are the stuff of politics. We are governed by those whom we elect and they are accountable to the people for the choices they make, not to the courts.
[26] It is important to remember that judicial independence is a two-way street: the government and legislature must obviously respect the independence of the courts, but courts must respect the roles and responsibilities of the other branches of government. Judicial review under the Charter is not an occasion for courts to comment on or critique policy or political decisions, as Tulloch C.J.O. explained in Dorceus v. Ontario, 2026 ONCA 321, at paras. 23-24:[T]he cornerstone of the separation of powers is mutual respect. ...
Because respect is reciprocal, the judiciary must remain mindful not to intrude into the domains of the political branches. The courts of law exist to resolve legal disputes. The courtroom is not a political forum. Nor is it a proxy for the public inquiry process in which the policy judgments of the legislative and executive branches can be second-guessed and re-weighed. These differences between the judicial function and the political arena must be preserved. (Citations omitted.) . Sharif v. Canada (Public Safety and Emergency Preparedness)
In Sharif v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2026) the Ontario Court of Appeal dismissed a deportation-related appeal, here brought against the dismissal of a JR, that in turn challenging the Minister's [of Public Safety and Emergency Preparedness] refusal to grant a UNHCR's request that "asked Canada to hold Mr. Sharif’s removal in abeyance while his communication [SS: regarding an complaint] to the UNHRC was under consideration".
Here the court considers the 'JR-justiciability' of this immigration-related decision:b. Justiciability
[53] In the alternative, Canada took the position that the Minister’s decision was not justiciable. The application judge also rejected this submission.
[54] He noted that justiciability exists on a sliding scale. Matters of high policy may not be justiciable but matters which directly implicate the rights and expectations of individuals are reviewable: Black, at paras. 52-54.
[55] The application judge noted the personal risks implicit in Mr. Sharif’s removal to Somalia. He concluded that although the Minister’s decision was made in the Crown prerogative, it was nevertheless justiciable, because judicial review is appropriate where an individual like Mr. Sharif is “affected in a highly material way by government action”. He therefore proceeded to conduct a judicial review of the Minister’s decision.
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ANALYSIS OF THE SECOND ISSUE: JUSTICIABILITY
[95] In the alternative, the respondent claims that, the issues engaged are not justiciable as to hold otherwise would risk converting “a non-binding request in a Protocol which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court”: Ahani (ONCA), at para. 33. The respondent submits that, “it is difficult to see how or why these rights affect the rights or legitimate expectations of individuals like the appellant.”
[96] Ahani is not determinative of justiciability in this case. First, this court did not specifically address the issue of justiciability or decide that Mr. Ahani’s claim was not justiciable. Second, and more importantly, the grounds for judicial review in Ahani and the relief requested were different. Unlike Mr. Ahani, who asserted a constitutional right to remain in Canada until his international remedies had been exhausted and asserting a legitimate expectation that he would not be deported until the UNHRC had considered his submission, Mr. Sharif seeks a more modest remedy: that is, that the Minister reconsider his decision and provide reasons.
[97] Justiciability exists on a sliding scale: Lorne M. Sossin and Gerard Kennedy, Boundaries of Judicial Review: The Law of Justiciability in Canada, 3rd ed. (Toronto: Thomson Reuters, 2024), at §6:1.
[98] In matters of “high policy” like the decision not to go to war, or sign a treaty, government decision-making may be unfettered. However, matters that directly implicate the rights or legitimate expectations of individuals are reviewable given their direct impact on those individuals: Black, at para. 51. The Minister argues that Mr. Sharif has no legal right or legitimate expectation to remain in Canada until the UNHRC provides its views. But as Laskin J.A. noted in Black, while strictly speaking no one has a legal right to a passport or a pardon, both engage important individual interests warranting the supervision of the courts: see paras. 53-55. Furthermore, unlike a decision to sign a treaty or to declare war, this is not a case in which the nature and subject matter are not amenable to the judicial process: Black, at para. 58; Hupacasath, at para. 66.
[99] The respondent acknowledges that the decision not to hold Mr. Sharif’s refugee removal order in abeyance while his communication to the UNHRC is under consideration is of great importance to the appellant given the serious safety risks he faces if he is returned to Somalia. There are no matters of high policy. Rather, the issues in this case are the timing of Mr. Sharif’s removal, whether the decision to remove him respects applicable legal standards, and whether it affects his safety and perhaps, his life.
[100] The decision is therefore justiciable as, although it arises in the context of international relations, it directly and profoundly affects the rights, safety, and life of a specific individual and involves the application of legal standards to a specific set of facts. . Vervoort et al v. Minister of Health et al
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 considers the JR justiciability of this policy challenge:[6] The applicants seek judicial review of Ontario’s policy. They submit the policy was unreasonable, implemented in a procedurally unfair manner, and violated their rights under sections 6, 15, and 7 of the Canadian Charter of Rights and Freedoms.
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[8] Although the parties have raised a number of issues on the stay motion, the central issue is whether this court has jurisdiction over the application for judicial review. If the court does not have jurisdiction, there is no need to address the other arguments because the court has no authority to order a stay. For the following reasons, I conclude the application falls outside the court’s jurisdiction.
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Jurisdiction under the JRPA
[11] The jurisdiction of the Divisional Court is limited to those matters conferred by statute: Daneshvar v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 3186, at para. 29. The JRPA sets out the Court’s jurisdiction over applications for judicial review. Subsection 2(1) provides the two possible sources of jurisdiction as follows: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. [12] The applicants’ notice of application seeks two primary remedies: (1) declarations, such as that the policy was unreasonable, breached procedural fairness, and violated their Charter rights; and (2) certiorari, meaning an order quashing the policy. Declarations are available under s. 2(1)2 and certiorari is available under s. 2(1)1.
[13] The applicants first submit the application falls within s. 2(1)2 because it is in relation to the exercise of a “statutory power.” 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. [14] The problem with the applicants’ request for declaratory relief under s. 2(1)2 is they have not been able to identify any particular statutory power. They trace the Minister’s statutory authority through two statutes, the Ministry of Health and Long-Term Care Act, R.S.O. 1990, c. M. 26 (the MOHLTCA) and the People’s Health Care Act, 2019, S.O. 2019, c. 5. The MOHLTCA authorizes the Minister of Health and Long-Term Care to enter into funding and other agreements. It also permits the Minister to delegate her powers under that act. The People’s Health Care Act, 2019 established Ontario Health as a public health agency. It generally provides a model for integrated public health delivery and a funding scheme for Ontario Health.
[15] However, the exercise of a statutory power must be more specific. It is not a question of generally acting within the bounds of statutory authority. As this court stated about s. 2(1)2 in Danshevar, at para. 30: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. [16] The applicants have not shown that the making of the policy constituted the exercise of a “statutory power.” The ADM’s letter does not rely on any statutory power authorizing the government to make the decision and the respondents state no statutory power is relied on to make it. The applicants have not been able to identify any specific statutory power used to make the decision.
[17] The only statutory power the applicants have identified that could be the source of the Minister’s authority is s. 20(1) of the People’s Health Care Act, 2019. Subsection 20(1) empowers the Minister to issue certain types of binding directives. It provides:20(1) Where the Minister considers it to be in the public interest to do so, the Minister may issue directives to any or all of the following:
1. The Agency.
2. A person or entity that receives funding from the Agency under section 21. [18] This provision does not apply to the issuance of the policy in this case. First, Ontario says the ADM did not rely on the provision and the September 16 letter does not refer to the provision. Second, although the September 16 letter states it is providing a “direction,” it does not use the word “directive.” The applicants have not pointed to any material that refers to the policy as a directive.
[19] Third, subsection 20(6) requires that directives under s. 20 be published on a website. The applicants have not been able to point to any publication of the September 16 letter.
[20] Finally, s. 20(1) does not apply on its terms. It addresses directives to the “Agency,” which is Ontario Health and to “a person or entity that receives funding from the Agency under section 21.” Section 21 authorizes funding to “a health service provider or integrated delivery system in respect of health services that the provider or system provides.” The recipients of the letter were the Deans of Medicine of Ontario’s medical schools. They do not fall within this provision.
[21] The applicants’ submission that the ADM’s letter was within a “concrete statutory legal framework” is not sufficient. They have not identified the exercise of a specific statutory power and, therefore, s. 2(1)2 does not apply.
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