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JR - Prerogative - Mandamus (2). Resource Productivity and Recovery Authority v. Environmental 360 Solutions Ltd.
In Resource Productivity and Recovery Authority v. Environmental 360 Solutions Ltd. (Ont Divisional Ct, 2025) the Divisional Court allows a motion to quash a JR, here brought seeking "an order of mandamus requiring RPRA to enforce certain requirements of the Resource Recovery and Circular Economy Act, 2016, S.O. 2016, c. 12, Sch. 1 (the Act) and regulations related to the collection and management of tires and the management of batteries":[2] E360S’s application seeks an order of mandamus requiring RPRA to enforce certain requirements of the Resource Recovery and Circular Economy Act, 2016, S.O. 2016, c. 12, Sch. 1 (the Act) and regulations related to the collection and management of tires and the management of batteries. E360S alleges RPRA has a public legal obligation to enforce the Act and regulations and that, despite repeated requests from E360S, RPRA has failed to exercise its statutory powers of enforcement. This has resulted in economic loss to E360S.
[3] The test on a motion to quash an application for judicial review is whether it is plain and obvious or beyond doubt that the application cannot succeed: Democracy Watch v. Ontario Integrity Commissioner, 2021 ONSC 7383, at para. 27; aff’d 2025 ONCA 153.
[4] RPRA submits it is plain and obvious the application is doomed to fail. It makes several arguments. The motion can be disposed of by addressing the central question of whether it is plain and obvious that an order of mandamus cannot be granted in the circumstances pleaded by E360S.
[5] For the following reason, I conclude the application cannot succeed.
Is it plain and obvious that an order of mandamus cannot be granted in this case?
[6] As set out in Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778, at para. 12, to succeed on a claim for mandamus, an applicant must establish:1. 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.
2. The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent on that official at the time the relief is sought.
3. The duty must be purely ministerial in nature – in other words, it must be “plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers”; and
4. There must be a demand and a refusal to perform the act that the applicant seeks to have ordered. [7] These requirements cannot be met in this case on the facts and allegations as pleaded for at least two reasons, as set out below.
No Clear Legal Right
[8] First, there is no “clear legal right” to have the thing sought done. Similarly, the duty whose performance is sought is also not “due and incumbent.” This is because E360S has not pleaded any specific facts of individual circumstances that make it incumbent on RPRA to perform an act. As RPRA submits, E360S is seeking an order requiring the RPRA to enforce the Act generally, “untethered to any particular facts.”
[9] E360S’s application arises from a general claim of economic loss stemming from what it says is RPRA’s failure to enforce the Act. Under the Act and its regulations, producers of certain products (such as tires and batteries) must meet specified requirements for collecting and recycling these products. Producers may meet the requirements themselves, or they may hire outside organizations, called producer responsibility organizations (PROs) to do so on their behalf. E360S is a PRO. A producer may satisfy any part of its tire collection and management, and battery management, obligations by purchasing credits, called performance credits. PROs also may purchase performance credits for their clients from other PROs.
[10] E360S is able to generate more performance credits than its producer clients require and would like to sell its surplus performance credits to other producers and PROs. However, it essentially alleges there is no market for the surplus performance credits if RPRA fails to take enforcement action under the Act and regulations, leading to economic loss.
[11] An order of mandamus must direct a public decision-maker to carry out a specific legal duty set out in statute or regulation. E360S has not pleaded any specific request for RPRA to make a statutory decision or take action on any particular facts.
[12] Mandamus is not available for an order that a public actor generally comply with the law. In Re Cornenki et al and Township of Tecumseth, 1971 CanLII 493 (ONSC), for example, a group of homeowners sought mandamus to compel a township to “exercise its powers” under a particular construction and building by-law to compel a builder to complete certain homes properly. The court refused to grant mandamus, stating that the requirement to enforce the by-law was “not the type of duty that can be enforced by mandamus in the very general way requested in this application.”
[13] E360S relies on Re District of North Vancouver et al. and National Harbours Board et al., 1978 CanLII 2075 (FC). It is important to look at the particular facts of that case. It related to a request by a group of residents to enforce provisions of an act and by-law with respect to vessels and moorings in the cove where the residents lived. The application addressed specific, identified vessels and moorings. The court’s order of mandamus was directed at the vessels and moorings found in the residents’ cove. The court did not make a general order for mandamus to enforce the act and by-law.
[14] E360S submits it wrote numerous letters to RPRA and, therefore, RPRA is aware of the non-compliance alleged. But there are no specific circumstances pleaded. The notice of application does not seek an order of mandamus in respect of any particular producer, PRO, or action the applicant says the RPRA has not taken. It seeks a general order requiring RPRA to enforce identified provisions of the Act and regulations.
Enforcement Is Discretionary
[15] The second and related reason it is plain and obvious the application cannot succeed is the duty sought to be enforced is not “plainly incumbent” and one concerning which there is no discretionary power.
[16] Courts have long been reluctant to intervene in the discretionary enforcement decisions of public regulators. In Animal Justice v. Minister of Northern Development, 2023 ONSC 1454, at para. 38, for example, the court found a decision to prosecute unlawful conduct under the Fish and Wildlife Conservation Act was discretionary and immune from judicial review absent bad faith or an abuse of process. In Harold the Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario, 2024 ONSC 2236, which addressed a motion to quash a notice of proposal to revoke a mortgage broker’s licence, Myers J. emphasized the discretionary nature of enforcement decisions, at para. 31:Finally, it is plain and obvious that the applicants have no claim for an order in the nature of mandamus against the regulator concerning competitors. There is no duty owing to the applicants for the regulator to take any steps against competitors. Moreover, prosecution and enforcement are always discretionary. Relief rooted in the availability of a writ of mandamus cannot be available for such decisions. [17] RPRA has significant discretion in its enforcement activities. For example, under s. 78 of the Act, an inspector “may” enter a place to conduct an inspection. Under s. 79, an inspector “may” require certain persons to respond to inquiries. Under s. 81, a justice “may” issue an order authorizing an inspector to act if the inspector has reasonable grounds to do so.
[18] E360S has not identified any statutory precondition that would lead to a mandatory requirement for RPRA to take any particular step. It instead relies on s. 77 of the Act, which provides that RPRA “shall exercise powers and perform duties in relation to compliance with and enforcement of this Act.” Section 77 does not require RPRA to take enforcement steps in any specific circumstances. Considering the discretionary enforcement provisions as a whole, I read s. 77 as granting RPRA the authority to enforce the provisions of the Act and regulations. It also could be a basis to require RPRA to enforce in particular circumstances where it has committed an abuse of process or acted in bad faith. It cannot be read as a general requirement to enforce particular provisions of the Act or regulations in all circumstances of alleged non-compliance or in particular circumstances of non-compliance that are not identified.
[19] Distribution Canada v. Minister of National Revenue, 1990 CanLII 13037 (FC), aff’d 1993 CanLII 2923 (FCA), which is relied on by E360S, is distinguishable. In that case, the applicant represented a group of independent grocers carrying on business in communities near the Canada-US border. The grocers alleged they suffered significant losses because the Minister was not collecting duties on certain non-exempt grocery purchases made by Canadians in the United States. The applicant sought to compel the Minister to strictly enforce a statutory provision that stated customs tariffs “shall” be collected.” The Federal Court dismissed the application. It noted that judicial review might be available if, in his enforcement, the Minister was taking into account completely irrelevant considerations, or if the considerations involved bad faith or an improper motive. Because those considerations were not present, the court would not interfere.
[20] Given my conclusion that mandamus is not available, it is also plain and obvious E360 is not entitled to a declaration as requested. E360’s notice of application seeks a declaration that “the mandatory language in section 77 of the Act does not give RPRA discretion to selectively enforce or not enforce requirements of the Act and its associated regulations.” According to the language of the Act, RPRA plainly does have enforcement discretion.
[21] Considering my conclusions above, I do not need to address the question of whether E360S lacks standing to bring the application.
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