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Judicial Review - Statutory Powers - General. 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. . Ramsay v. Waterloo Region District School Board
In Ramsay v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered a JR by a school board trustee against "the Waterloo Region District School Board (the “WRDSB”) ... which found that he had breached its Code of Conduct for Trustees (“Code of Conduct”) and imposed sanctions upon him as a result". These quotes briefly set out the JR jurisdiction for the application:[1] Michael Ramsay has brought this application for judicial review of the decision of the Waterloo Region District School Board (the “WRDSB”) on June 6, 2022 which found that he had breached its Code of Conduct for Trustees (“Code of Conduct”) and imposed sanctions upon him as a result.
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[6] The WRDSB is a public school board that exercises statutory authority under the Education Act, R.S.O. 1990, c. E.2 (the “Act”). The WRDSB is composed of 11 trustees who are responsible for serving the interests and needs of the general public, and for advocating for a strong public education system that benefits the learners and communities served within the local community.
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[24] On June 6, 2022 the trustees deliberated in camera the issues of whether to find Ramsay in breach of the Code of Conduct based on the findings of the Integrity Commissioner’s report, and to determine whether any resulting sanctions should be imposed.
[25] Following that meeting, a public meeting was held at which the trustees voted 6-3 that Ramsay had breached the Code of Conduct. The WRDSB voted, by the same 6-3 margin, to impose sanctions on Ramsay. These sanctions included a formal censure, and the suspension of his entitlement to attend WRDSB meetings or to receive in camera materials until September 30, 2022. The Chair cast a vote in these determinations.
[26] On June 8, 2022, Ramsay was provided with written notice of the decision. He was informed that he could provide written submissions to request the WRDSB to reconsider its decision. On June 24, 2022 Ramsay submitted his request for reconsideration.
[27] On June 27, 2022 the WRDSB deliberated in camera whether to confirm or revoke its decision that Ramsay breached the Code of Conduct. At the public meeting immediately following, the trustees voted 6-3 to confirm its finding of a breach, and to confirm the sanctions imposed.
Jurisdiction
[28] The Divisional Court has jurisdiction to hear and determine this application for judicial review under sections 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1. . Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks)
In Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks) (Div Court, 2022) the Divisional Court considered how overt a 'refusal to exercise a statutory power' needs to be to attract JRPA s.2(1)2 jurisdiction:[51] With respect to the question of this Court’s jurisdiction, the Respondents emphasize that, unlike the Superior Court, the Divisional Court does not have inherent jurisdiction. Specifically in this case, they submit that the Court does not have jurisdiction because Ontario did not refuse to exercise a statutory power. In any event, the statutory power that existed was eliminated. As otherwise stated by Brookfield, the current dispute is moot in view of the elimination of the PTTW regime. In addition, the Respondents submit that constitutional challenges to the validity of legislation do not fall within the Judicial Review Procedure Act.[23]
[52] I reject the Respondents’ first submission, that Ontario did not refuse to exercise a statutory power. Paragraph 2(1)(2) of the JRPA grants this Court jurisdiction in relation to the “refusal to exercise…a statutory power.” MFN does not need to demonstrate a specific, overt refusal. A refusal can be express or implied. Neglect or unreasonable delay in performing a duty can be deemed an implied refusal.[24] When Ontario did not make decisions on the applications for PTTWs filed in 2016 and then, three years later, amended the legislation to remove the requirement to obtain a PTTW, in my view, this was tantamount to a refusal. . Sui v. Ontario
In Sui v. Ontario (Div Court, 2022) the Divisional Court clarifies the nature of a 'statutory power' as distinct from a 'statutory power of decision':[2] Mr Sui did not address the jurisdiction of the OCJ, or a court hearing an appeal from the OCJ. Instead, he argued that the public service member exercised a "statutory power of decision" in refusing to provide a certificate for the recording furnished for preparation of a transcript by a certified transcriptionist.
[3] Mr Sui is in error in this argument. Statutory authority is not the same thing as a statutory power of decision. All manner of tasks, from the important to the mundane, are performed by the public service pursuant to direct or indirect grants of statutory authority; only a small subset of them rise to the level of being a "statutory power of decision." Providing a recording of a court proceeding - with or without a certificate - is a matter of day-to-day public administration and is not exercise of a statutory power of decision. . Democracy Watch v. Ontario Integrity Commissioner
In Democracy Watch v. Ontario Integrity Commissioner (Div Ct, 2020) the Divisional Court considered a judicial review application by a public interest organization of refusals of the Integrity Commissioner and the Conflict of Interest Commissioner to comply with the organization's requests to make formal determinations regarding the conduct of some executive government officials.
One of the issues considered was whether the refusals were "exercise of a statutory power" under JRPA s.1:66. A Statutory Power is defined as follows under s. 1 of the JRPA [paras 67-74]:“statutory power” means a power or right conferred by or under a 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.
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