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Judicial Review - Standing - Special Interest

. Laforme v. The Corporation of the Town of Bruce Peninsula

In Laforme v. The Corporation of the Town of Bruce Peninsula (Div Ct, 2021) the Divisional Court considered whether a JR applicant had standing on the concern that the matters were not of a nature so as to be 'amenable' to judicial review:
Issue 2: There is no basis for this Court to quash the Town’s Decision

[63] Besides attacking the Authority’s decision to grant the permit, the applicant asks this Court to find that the Town’s decision to proceed with the project is unreasonable for the following three reasons:
a. The project contravenes section 10 of the Endangered Species Act, 2007;

b. The project contravenes section 15.1.1(1) of the Environmental Assessment Act: and

c. The project contravenes section 24 of the Planning Act;
[64] In my view, none of these is a proper ground for the Court interference.

Endangered Species Act, 2007

[65] Section 10(1) of the Endangered Species Act, 2007 provides that “no person shall damage or destroy the habitat of … an endangered or threatened species”. Section 17(1) of the Endangered Species Act, 2007 gives the Minister the power to grant a permit that authorizes the person to engage in activities prohibited by the Act in certain circumstances. The Act also provides for various forms of enforcement, including by way of a provincial prosecution or an order by the Minister requiring the person to stop engaging in prohibited activities.

[66] In this case, based on his expert evidence, the applicant argues that the Town’s project will harm the piping plover’s habitat and that the Town should be prohibited from proceeding with the project in the absence of a permit.

[67] For its part, the Town argues that the MECP is aware of the project and has decided that a permit is not required. In response to this argument, the applicant takes the position that the Town has not been entirely truthful in its disclosure to the MECP about the potential impact of the project on the piping plover habitat.

[68] In my view, the applicant’s request that the Divisional Court intervene on this issue on the current record misconceives the role of the Court on an application for judicial review. In making this argument, the applicant has not identified a decision made by the Town that is subject to judicial review. As the proponent of the project and as a potential applicant for a permit under the Endangered Species Act, 2007, the Town is not exercising a statutory power amenable to judicial review. Rather, it is in the same position as any private citizen who may be required to apply for a permit to carry out a project that may harm or destroy the habitat of an endangered species. Under the Endangered Species Act, 2007, the decision maker for issuing a permit and for enforcing the Act is the Minister of Environment, Parks and Recreation. At a minimum, an application for judicial review that seeks to prohibit the Town from proceeding with the project without a permit granted under the Endangered Species Act, 2007 should name the Minister as a respondent. In addition, based on the conflicting evidence on the record currently before the Court, it would not be possible or appropriate for this Court to determine whether the Town requires a permit. This is a decision to be made at first instance by the MECP, after which the applicant may have avenues of redress by way of judicial review to the Divisional Court. However, based on the current record, there is no legal or factual basis that warrants this Court granting an order prohibiting the Town from proceeding with the project in the absence of a permit under the Endangered Species Act, 2007. Judicial review is a discretionary remedy and, without the MECP as a named respondent on this application, the Court should decline to make any decision on this issue on the record currently before the Court.

Environmental Assessment Act

[69] The applicant’s argument related to the Environmental Assessment Act is similar to the argument related to the Endangered Species Act, 2007, and it falters for similar reasons.

[70] The applicant relies on section 15.1.1(1) of the Environmental Assessment Act that provides that no person can proceed with an “undertaking” unless the person complies with the environmental assessment process under the Act. Depending on the scope of the “undertaking”, different projects are subject to different levels of scrutiny. In this case, the applicant argues that, given the nature of the project, it falls under Schedule B or C of the Act, which would require a full review process, including extensive public consultation.

[71] The Town argues that this project is exempt from section 15.1.1(1) of the Environmental Assessment Act because it falls within the scope of certain types of municipal projects exempted by the Minister pursuant to an Order-in-Council. Specifically, the Town argues that this project can be categorized as falling within the scope of the Town’s routine road maintenance. Alternatively, even if some degree of consultation is required, the Town argues that it has met its public consultation obligations under Schedule B by receiving comments from members of the public and through its application for a permit to the Authority.

[72] The Environmental Assessment Act is a complex statutory scheme enforced by the MECP. In this case, there is no evidence that the applicant raised the issue of an assessment with the MECP, there is no decision from the MECP on the issue of whether an assessment is required and the MECP has not been named as a respondent to this proceeding. As with the issue of the Endangered Species Act, 2007, the Town is the proponent. It is not clear how this court’s jurisdiction to the grant the relief sought by the applicant is engaged in the absence of a decision or refusal to make a decision by the MECP. Again, without the MECP as a named respondent on this application, the Court should decline to make any decision on this issue on the record currently before the Court.
. Accettone Funeral Home Ltd. v. Ajax Crematorium and Visitation Centre and Bereavement Authority of Ontario

In Accettone Funeral Home Ltd. v. Ajax Crematorium and Visitation Centre and Bereavement Authority of Ontario (Div Ct, 2021) the Divisional Court considered when a party has special standing to apply for judicial review [case cites are by numbers]:
[21] Generally, only persons who were parties before the tribunal or who are directly affected by the tribunal’s decision may apply for judicial review.[2] The burden is on Accettone in this case to show that they have “some special interest, private interest or sufficient interest” in the decision or proceeding.[3]

[22] An applicant will have an interest in the proceeding where he or she has a private right that has been infringed by the respondent, or which will cause or threaten to cause special damage which extends beyond that suffered by the general public.[4] This interest may also be conferred by statute.[5]

[23] It is not sufficient to be interested in the decision. The requisite special, private or sufficient interest in the decision or proceeding will be satisfied when that party’s rights or obligations have been or could be affected more than the general public. They must be more than “interested observers”.[6] An applicant can also discharge the burden by showing the decision affected their “personal or economic rights or obligations”.[7]
. Themelis v. Toronto

In Themelis v. Toronto (Div Ct, 2021) the Divisional Court considered whether a judicial review application of an arbitration award, which endorsed a union's HRC damages settlement, was barred by the Weber jurisdictional doctrine that all labour relations matters be decided under collective agreement (and thus Labour Relations Act) procedures (here the s.74 'duty of fair representation'). The court held that the jurisdiction lay with the LRA procedure, and as well that the employee has no standing to bring a judicial review:
[17] It is trite law that, under the exclusive representation model of collective bargaining, only the union and employers have standing to judicially review labour arbitration awards. This court explained in Misra v. City of Toronto, 2016 ONSC 2246 (Div. Ct.), at para. 56, that there are only three narrow circumstances in which an individual employee can seek judicial review:
(1) where the collective agreement expressly confers that right;

(2) where the union takes a position adverse in interest to the employee; or

(3) where the union’s representation of the employee was so unfair or deficient that the employee should be given the right to pursue judicial review.
[18] Here the collective agreement clearly confers no right on an individual employee to seek judicial review. Nor was the Union’s position “adverse” to the Applicant in the relevant sense. The adversity of interest must be a fundamental conflict with the employee’s core interest. The conflict must rise to the level of making the union and the employee “opponents” in the litigation. Here, it cannot be said that the Union took any position “adverse” to the core interest of the Applicant. The Union took the position that the Applicant was not properly accommodated by the City, that he should be re-employed, and that he was entitled to damages. The fact that the Applicant wanted a good deal more money than the Union was prepared to insist upon in settlement discussions cannot qualify, without more, as an “adversity of interest” within the meaning of the second exception.

[19] Likewise, standing cannot be given under the third exception where the allegation of unfairness effectively amounts to no more than an allegation of a violation of a duty of fair representation: Vallabh v. Air Canada and Unifor Local 2002, 2019 ONSC 4016 (Div. Ct.), at paras. 35-36. To find otherwise would gut the exclusive jurisdiction of the OLRB under ss. 74, 96(4) and 114 of the LRA altogether. The third exception, therefore, is meant to capture unusual circumstances, such as where there is no statutory duty of fair representation enforceable by the OLRB. As long as allegations which, in substance, raise issues of unfair representation by the union fall within the scope of s. 74, it would be inconsistent with Gendron, Vallabh, and the exclusive jurisdiction of the OLRB to extend standing to employees under the third exception.

[20] For these reasons, I would have granted the Union’s motion on this ground as well.



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