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Judicial Review - Prerogative Writs - Certiorari

. Michalski v. McMaster University

In Michalski v. McMaster University (Div Ct, 2022) the Divisional Court considers a judicial review challenging a university's COVID vaccination policy. During this it considered the distinction between the prerogative writs [JRPA 2(1)1] and remedies for a statutory power of decision [JRPA 2(1)2]. It ultimately denied relief on discretionary grounds ["may": JRPA 2(1)]:
[55] A brief discussion of the Court’s jurisdiction to hear the Application is in order before addressing the Applicants’ grounds for judicial review.

[56] Subsection 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.11 (“JRPA”) states:
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.
[57] Subsection 1(1) of the JRPA defines “statutory power of decision” 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 is legally entitled thereto or not.
[58] The Applicants submit that this Court has jurisdiction under s.2(1)2 of the JRPA to review the Validation Team’s decisions to deny them exemptions from the university’s mandatory vaccination policy. McMaster disputes that the impugned decisions were an exercise of a statutory power. McMaster does not contest this Court’s jurisdiction to review the decisions, but it argues that jurisdiction derives from s.2(1)1 of the JRPA because the decisions are of a kind that is reached by public law and to which a public law remedy can be applied: Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, at paras. 24 and 32.

[59] The Applicants’ submissions on jurisdiction may be summarized as follows. McMaster is a statutory body governed by An Act Respecting McMaster University (The McMaster University Act, 1976), as amended by Bill 173, Chapter 5, S.O. 2016. McMaster developed and adopted its vaccination policy in conformity with instructions issued by Ontario’s Chief Medical Officer of Health pursuant to a Regulation under the Reopening Ontario Act, 2020. McMaster’s President delegated to the Validation Team administrative and decision-making powers with respect to the evaluation of student requests for exemption from the vaccine mandate based on non-medical human rights grounds. The decision-makers who rejected the Applicants’ exemption requests were therefore exercising delegated statutory powers when they made decisions about the Applicants’ on-campus privileges and eligibility to continue to receive the benefit of their education at McMaster.

[60] This argument is not supported by the jurisprudence on the interpretation of s. 2(1)2 the JRPA. The Court of Appeal for Ontario has ruled that “it is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in the exercise of a ‘statutory power of decision’; and … that must be a specific power or right to make the very decision in issue”: Paine v. University of Toronto (1982), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.) at p.5.

[61] While it is arguable that McMaster’s adoption of its mandatory vaccination policy was an exercise of a specific statutory power of decision conferred by Regulation enacted under the Reopening Ontario Act, 2020, that issue is not before this Court because the Applicants abandoned their requests for injunctive and declaratory relief, and for an order quashing the policy. Their focus is now on quashing the Validation Team’s decisions to deny their exemption requests. They have pointed to no statute (or Regulation) that confers a specific power to make those decisions.

[62] The McMaster University Act, 1976 grants the university’s Board of Governors and Senate broad powers to adopt certain policies. It also grants McMaster’s President powers to implement university policies, but it does not explicitly address vaccination policies. Moreover, neither the university’s governing statute nor the Reopening Ontario Act, 2020 (nor any Regulations enacted pursuant to either of those laws) confers on the President a specific power to make the very decisions at issue in this case, namely whether students have established a creed-based entitlement to an exemption from the vaccine mandate. The Validation Team’s impugned decisions therefore do not constitute an exercise of a statutory power delegated from the President.

[63] The Court’s jurisdiction to make the requested order quashing the impugned decisions does not, however, depend on the Applicants establishing that the Validation Team exercised a statutory power of decision within the meaning of s. 2(1)2 of the JRPA. We agree with McMaster’s submission that the Court can take jurisdiction over the Application and may grant an order quashing the impugned decisions because the judicial review application raises issues of a public nature, and the relief sought (certiorari) is one of the prerogative writs set out in s. 2(1)1 of the JRPA. It is unnecessary to review the relevant factors leading to the Court’s determination that this matter is sufficiently public in character to bring it within the purview of public law because the parties agree that it has a sufficient public dimension.

[64] The Court therefore has jurisdiction to review the Validation Team’s impugned decisions on their merits and to order the relief sought by the Applicants. The exercise of that jurisdiction is, however, within the discretion of the Court. The permissive language in s.2(1)1 of the JRPA (“the court may … by order grant any relief”) continues the longstanding discretionary nature of judicial review and of certiorari as a prerogative remedy: Strickland v. Canada (Attorney-General), 2015 SCC 37, [2015] 2 S.C.R. 713, at paras. 37-38.
. Thales DIS Canada Inc. v. Ontario

In Thales DIS Canada Inc. v. Ontario (Div Court, 2022) the Divisional Court considers whether and how a decision of the Director, Program and Policy Enablement (the “Director”), Supply Chain Ontario (“SCO”) of the Ministry of Government and Consumer Services, which interpretated international trade treaties, is judicially reviewable under Ontario law:
[74] Thales seeks judicial review of the Decision to dismiss Thales’ complaint pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 [“JRPA”]. Section 2 of the JRPA states as follows:
Applications 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, 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.
[75] While s. 2(1)2 requires the exercise of a statutory power where a declaration or injunction is sought, there is no such requirement under s. 2(1)1 for the public law remedies of certiorari, mandamus or prohibition.

[76] The Decision is an exercise of state decision-making authority of a sufficiently public character, and is thus subject to judicial review: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 13. However, given that the SCO process was not created by statute and is not governed by a statutory regime, an SCO decision does not constitute the exercise of a statutory power or a statutory power of decision as defined in the JRPA. Therefore, only the relief in s. 2(1)1, that is, relief in the nature of certiorari, mandamus or prohibition, is available.

...

What is the Appropriate Relief?

[137] While Thales seeks declaratory relief, as set out above, a declaration is only available in relation to the exercise, refusal to exercise or purported exercise of, a statutory power of decision: Daneshvar v. Ontario, 2021 ONSC 3186 (Div. Ct.), at paras. 28-31. As noted above, the Decision does not result from the exercise of a statutory power of decision. As a result, declaratory relief is not available in the circumstances of this case. Similarly, mandatory relief is only available where there is a statutory duty to act and the government fails to do so: Apotex Inc. v. Canada, 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (C.A.), aff’d 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100.

[138] As a result, in respect of the Decision, the appropriate relief is in the nature of certiorari, under s. 2(1)2 of the JRPA. The Decision must be set aside. Based on my analysis of the reasonableness of the Decision, it is clear that the only reasonable conclusion that the Director could have reached on the record before her is that the domestic production requirement contravened the CETA. In the circumstances, it would serve no useful purpose to remit the matter back to the Director.
. West Whitby Landowners Group Inc. v. Elixicon Energy

In West Whitby Landowners Group Inc. v. Elixicon Energy (Div Ct, 2022) the Divisional Court considered whether a statutory power of decision has occured, in this case focussing on the public nature of the acts:
[34] Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, provides that on an application for judicial review, the Divisional Court can grant an “order in the nature of mandamus, prohibition or certiorari” or a declaration “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”.

[35] In this case, WWLG seeks an order in the nature of certiorari. As held in Martineau v. Matsqui Institution, 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602, at p. 628:
Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.
[36] As held by this Court in Trost v. Conservative Party of Canada, 2018 ONSC 2733, at para. 11, the Judicial Review Procedure Act does not specify when certiorari may be available, so it is necessary to turn to common law principles to decide that issue. In such cases, the courts look at the list of factors set out by the Federal Court of Appeal in Air Canada v. Toronto Port Authority, 2011 FCA 347, at para. 34, to determine whether a decision is of sufficient public character to engage public law remedies such as certiorari. As described in Trost, at para. 13, these factors are as follows:
-- the character of the matter for which review is sought;

-- the nature of the decision-maker and its responsibilities;

-- the extent to which a decision is founded in and shaped by law as opposed to private discretion;

-- the body's relationship to other statutory schemes or other parts of government;

-- the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;

-- the suitability of public law remedies;

-- the existence of a compulsory power;

-- an "exceptional" category of cases where the conduct has attained a serious public dimension
[37] In my view, the OEB’s opinion regarding whether the MS16 is an expansion or an enhancement is not a decision giving rise to the public law remedy of certiarori. While the OEB is a public body that makes many decisions of a public character, in this case, the first factor, namely the character of the matter, weighs heavily against the availability of public law remedies. The parties sought the opinion for the purpose of resolving their private dispute. The fact that they agreed to be bound by the OEB’s opinion does not turn the opinion into a decision of a public character. Ultimately, the only decision made by the OEB was not to refer the matter for further investigation or not to make an order against Elexicon which, as reviewed above, is a decision that WWLG does not have standing to challenge.


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