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Complaints - Remedies. Grassy Narrow First Nation v. His Majesty the King in Right of Ontario, et al
In Grassy Narrow First Nation v. His Majesty the King in Right of Ontario, et al (Div Ct, 2026) the Divisional Court dismissed a JR, this brought against "the actions of a Director appointed under the Environmental Protection Act" who refused "to exercise his powers under the Act to issue stop and control orders against the mine".
Here the court considers, without clearly deciding, the JR-justiciability of an EPA "Director's letter" - here triggered by a formal ad hoc complaint:[22] HMKIRO submits that the Director’s letter is not properly subject to judicial review, as it simply affirmed existing rights under the previous ECA and resulted in no change to the status quo. The Director’s response to Grassy Narrows was an unreviewable “courtesy letter”. HMKIRO submits that in any event, the Director acted reasonably in refusing to issue a stop order, and had no statutory basis upon which to issue a control order. Further, the duty to consult was not triggered.
[23] In my view, HMKIRO’s submission that the Director’s actions were no more than a “courtesy letter” and not subject to judicial review likely goes too far. While the scope of judicial review of a discretionary enforcement decision may be narrow, such decisions are not generally shielded from judicial review. The Judicial Review Procedure Act R.S.O. 1990, c. J.1 expressly contemplates review of the refusal to exercise a statutory power. However, given my conclusions below that the application cannot succeed, I do not need to resolve this issue and have proceeded on the assumption, not the decision, that the Director’s letter is subject to judicial review.
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[40] The most significant of the obstacles is the context in which the Director’s actions occurred. The Director is determining what, if any, enforcement actions should be taken. This is an area in which the Director enjoys significant discretion. Ministerial decisions of a discretionary nature attract a high degree of deference. Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41 (CanLII), [2001] 2 SCR 281 at para. 56. Further, as the Court of Appeal has recently reiterated, “[i]t is well established that an administrative decision maker’s decision not to take enforcement steps in response to a complaint is subject to a limited right of judicial review on procedural fairness grounds”: West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821 at para. 124.
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