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Judicial Review - Prerogative Remedies - Mandamus [JRPA 2(1)1]

. Ash v. Chief Medical Officer of Health of Ontario

In Ash v. Chief Medical Officer of Health of Ontario (Div Court, 2022) the Divisional Court considered mandamus on a motion to quash a JR, which was granted for pleadings failure:
[12] To succeed on a claim for mandamus, an Applicant must establish[3]:
(i) a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced;

(ii) the duty whose performance it is sought to coerce by mandamus must be actually due and incumbent on the official at the time the relief is sought;

(iii) the duty must be purely ministerial in nature – in other words, “plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers”; and

(iv) there must be a demand and a refusal to perform the act the Applicant seeks to have ordered.
[13] Section 77.9 of the HPPA provides as follows:
Directives to boards and medical officers

77.9 (1) The Chief Medical Officer of Health may issue a directive to any or all boards of health or medical officers of health requiring the adoption or implementation of policies or measures concerning the matters set out in subsection (2) if the Chief Medical Officer of Health is of the opinion,

(a) that there exists, or there is an immediate risk of, a provincial, national or international public health event, a pandemic or an emergency with health impacts anywhere in Ontario; and

(b) that the policies or measures are necessary to support a co-ordinated response to the situations referred to in clause (a) or to otherwise protect the health of persons.

Restriction

(2) The Chief Medical Officer of Health may only make a directive under this section with respect to measures or policies concerning,

(a) infectious diseases;

(b) health hazards;

(c) public health emergency preparedness; or

(d) a matter prescribed in regulations made by the Minister.

Compliance required

(3) A board of health or medical officer of health that is served with a directive under this section shall comply with it.

Duration

(4) Subject to subsections (5) and (6), a directive under this section is in force for the period set out in the directive, which shall not exceed six months.

Termination or renewal

(5) The Chief Medical Officer of Health may terminate a directive under this section, or renew it for one or more additional periods of not more than six months each.

Consultation

(6) The Chief Medical Officer of Health shall consult with every affected board of health and medical officer of health before,

(a) renewing a directive under this section so that it is in force more than six months; or

(b) issuing a directive identical or substantially similar to one or more directives already issued, where the effect would be that identical or substantially similar directives would be in force for the same board or medical officer of health for a total period of more than six months, whether or not they are in force for consecutive periods. (emphasis added)
[14] There are at least two fundamental problems with the Applicants’ claim for mandamus that make it doomed to fail. Both relate to the nature of the CMOH’s statutory duty under s. 77.9(1) of the HPPA (assuming for the sake of argument that the authority under s. 77.9 is correctly characterized as a duty).

[15] The first problem relates to the absence of any pleading in the Application of the conditions precedent to trigger the authority of the CMOH to act under s. 77.9(1), or any evidence of the conditions precedent to trigger the authority of the CMOH to act.

[16] Section 77.9(1) creates a discretionary power on the part of the CMOH to issue directives to any or all boards of health or medical officers of health requiring the adoption or implementation of policies or measures concerning the matters set out in subsection (2).

[17] Section 77.9(1) contains a condition precedent trigger for the authority for the CMOH to act pursuant to the section. He must be of the opinion: (a) “that there exists, or there is an immediate risk of, a provincial, national or international public health event, a pandemic or an emergency with health impacts anywhere in Ontario,” and (b) “that the policies or measures are necessary to support a co-ordinated response to the situations referred to in clause (a) or to otherwise protect the health of persons.” I refer to these two opinions as the requirements of “immediate risk” and “necessity of a coordinated response.”

[18] Absent the CMOH forming the two opinions that are the conditions precedent to the CMOH having the authority to issue a directive under s. 77.9(1), he has no authority to act under s. 77.9(1).

[19] The Applicants have not pleaded that the CMOH has formed either of the condition precedent opinions regarding immediate risk and the necessity of a coordinated response. Although this is primarily a motion based on the pleadings on their face, I have also considered that in the Applicant’s affidavits filed on this motion, there is also no evidence that the CMOH has formed the condition precedent opinions required to trigger his authority to issue a directive under s. 77.9(1). Instead, the evidence proffered by the Applicants on the main Application is their affidavits, setting out, in the case of Mr. Ash, his belief that COVID-19 vaccines are harmful to children and in the case of the Northey’s, their belief that COVID-19 vaccines are not proven to be beneficial to children.

[20] In the context of this motion to quash based on the pleadings, in the absence of any pleading that the CMOH has formed the opinion required as a condition precedent to acting under s. 77.9(1) of the HPPA, there is no basis for claiming that he has any authority to act under s. 77.9(1), and certainly no duty. The Application for mandamus is therefore doomed to fail. On this basis, the Applicants’ claim for mandamus is incapable of success and must be quashed.

[21] The second problem with the Applicants’ claim for mandamus relates to the nature of the CMOH’s authority under s. 77.9(1). This section grants the CMOH the discretion to act where he has formed the necessary opinions. The CMOH may issue a directive if he forms the necessary precondition opinions. Section 77.9(1) confers discretion on the CMOH to issue a directive (he “may issue a directive” … if he “is of the opinion that….”).

[22] The discretionary nature of the authority is significant because mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way[4].

[23] Section 77.9(1) is framed as a discretion once the CMOH forms the condition precedent opinions. The Applicants’ claim for a mandamus order asks this court to direct the CMOH on how to exercise his discretion under s. 77.9(1), which is beyond this court’s jurisdiction. This court’s authority to make a mandamus order does not allow it to direct the CMOH on how to exercise his discretionary powers under s. 77.9(1).
. Doyle v. Canada (Attorney General)

In Doyle v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered a request for mandamus as an appeal remedy:
[5] Mandatory orders, or what the Federal Courts Act, R.S.C. 1985, c. F-7 calls mandamus, are not freely available. They are available in two narrow circumstances.

[6] First, courts can grant mandatory orders or mandamus where the "“evidence can lead only to one result”": D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167 at para. 16; Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93 at para. 14. The Federal Court noted this principle (at para. 39) and found that it could not make a mandatory order in this case (at para. 40). It found (at paras. 40-44) that an investigator will need to uncover "“additional evidence either to reconcile conflicting positions or add missing evidence”" in order to get at the merits of the appellant’s complaint. That remedial finding "“depend[ed] upon the factual appreciation and discretion of the court”" and so, absent palpable and overriding error—and there is none here—we must defer to that finding: Canada (Attorney General) v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209 at paras. 88-90.

[7] Second, courts can grant mandatory orders or mandamus in circumstances of extreme maladministration. A very high threshold must be met before relief can be granted: see D’Errico and LeBon, above. That threshold has not been met here.

[8] Under this legislative scheme, it is for the administrative actor, here the investigator, to examine the evidence, find facts and offer views on the merits of the appellant’s complaint. Absent the rare circumstances where mandamus is available, reviewing courts, such as the Federal Courts, do not do those things. They are restricted to two tasks: reviewing what the administrative actor has done and, if there has been a material procedural flaw or a substantive defect overcoming any deference that may be owed, sending the matter back to the administrative actor. See, most recently, Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19 at para. 37 and authorities cited therein.
. Canada (Attorney General) v. Iris Technologies Inc.

In Canada (Attorney General) v. Iris Technologies Inc. (Fed CA, 2021) the Federal Court of Appeal considered the nature of an order for mandamus:
[5] In Alberta Wilderness Association v. Canada (Attorney General), 2013 FCA 190 at paras. 34, 38-40, this Court held that rule 317 does not apply in an application for an order of mandamus. That is because the purpose of an order of mandamus is to compel the decision-maker to make a decision that it has failed or refused to make. Mandamus thus lies only if no decision has yet been made. And if no decision has yet been made, there can be no decision that is "“the subject of the application.”"

[6] An applicant seeking an order of mandamus must, therefore, rely on affidavit or other evidence to show that it meets the test set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, 1993 CanLII 3004 (F.C.A.), affirmed, 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100.
. Sexsmith v. Canada (Attorney General)

In Sexsmith v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal commented on the remedy of mandamus:
[40] Mr. Sexsmith seeks mandamus requiring the authorization to be granted. On the pre-conditions for mandamus, see generally Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93, citing relevant Supreme Court authority; and see also D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167. Mandamus is available only where the facts and law are such that the administrative decision-maker has no choice and must determine the matter in a particular way. As well, in rare cases, mandamus can be granted for significant maladministration or administrative misconduct. Here, neither circumstance is present. On redetermination, Mr. Sexsmith’s application could either be granted or denied depending on how the facts and the law are reasonably viewed.
. Watson v. The Corporation of the Municipality of Stirling-Rawdon

In Watson v. The Corporation of the Municipality of Stirling-Rawdon (Div Ct, 2021) the Divisional Court states a simple fact regarding mandamus:
[14] I do not accept this argument. The discretion about what is “necessary” to disclose and what is not is conferred on the Commissioner, not the court. Mandamus generally does not lie to compel the exercise of discretion. ....
. Canadian Snowbirds Association Inc. v. Attorney General of Ontario

In Canadian Snowbirds Association Inc. v. Attorney General of Ontario (Div Ct, 2020) the Divisional Court characterized mandamus as a discretionary and unusual remedy:
[83] Mandamus is an extraordinary remedy that is discretionary and is only to be utilized in situations that are exceptional (Ontario (Attorney General) v. Mazurkewich, [2000] O.J. No. 4254 at para. 49 (Sup. Ct.)). In situations where a piece of legislation, or a regulation is outside the bounds of authority provided for by statute, the general practice of the courts is to invalidate the offending subordinate legislation through certiorari or a declaration (Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para. 169, Brown and Rowe JJ dissenting in part, but not on this point).
. 1582235 Ontario Limited v. Ontario

In 1582235 Ontario Limited v. Ontario (Ont CA, 2020) the Divisional Court sets out a novel use of an order of mandamus:
[62] The Applicants seek a remedy quashing the Ministry’s set-off decision and ordering that the Ministry reimburse the Applicants for the facility fees that were taken pursuant to its unlawful and, therefore, unreasonable set-off decision.

[63] The Ministry argues that the Applicants’ request for reimbursement is, in effect a request for damages, something that cannot be obtained on an application for judicial review.

[64] We agree that damages are not available on judicial review. We disagree that this is what the Applicants are seeking. In this case, the only way to remedy the wrong that the Ministry engaged in is to order relief by way of mandamus, requiring the Minister to reimburse the Applicants for the monies they took by way of the set-off decision. This is not a case where remitting the matter to the Ministry to re-consider is appropriate as the result is inevitable – the option of set-off was not available to the Ministry when it made the decision it did. Nor would simply granting declaratory relief be appropriate as the Ministry would still be in possession of funds that it had no lawful right to take at the time it did. There is authority to grant relief by way of mandamus in exceptional circumstances where a decision to not do so threatens to bring the administration of justice into disrepute (see for example: D’Errico v. Canada (Attorney General)[30]). It would threaten to bring the administration of justice into disrepute if the Ministry were permitted to benefit from conduct that a court has found to be unlawful.


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