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Courts - Divisional Court. Apitipi Anicinapek Nation v. Ontario [IMPORTANT re constitutional Divisional Court jurisdiction]
In Apitipi Anicinapek Nation v. Ontario (Ont Div Ct, 2025) the Ontario Divisional Court allowed a Crown motion, here seeking "to quash part of the underlying application for judicial review for lack of jurisdiction".
The court considers whether it (as the Divisional Court in a JR) has jurisdiction to consider a Constitution Act s.52(1) declaration remedy, here in an indigenous context:[15] The moving parties therefore move to strike out those parts of the notice of application for judicial review that seek relief under s. 52 of the Constitution Act, 1982, as set out in the notice of motion, and the related notice of constitutional question. The AAN disagrees, submitting that the Divisional Court has jurisdiction.
[16] The substantive jurisdiction of the Divisional Court is statutory. It is a court of review. It has statutory appellate jurisdiction as set out in the Courts of Justice Act, R.S.O. 1990, c. C.43 (the CJA) and other statutes, which is not at issue here. Its jurisdiction on applications for judicial review, which is at issue here, is found in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the JRPA).
[17] Contrary to the AAN’s submissions, the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge. Nor does r. 14.05 of the Rules of Civil Procedure expand the Court’s substantive jurisdiction on an application for judicial review: J.N. v. Durham Regional Police Service, 2012 ONCA 428, at para. 16.
[18] Section 2 of the JRPA sets out this Court’s jurisdiction for an application for judicial review. It is limited to applications for an order “in the nature of mandamus, prohibition or certiorari”, and other proceedings for a declaration or injunction “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”. The Constitutional Challenge put forward in this application for judicial review does not fall within this jurisdiction.
[19] The JRPA defines “statutory power” and “statutory power of decision” in s. 1. The closest the Constitutional Challenge comes to falling within that definition is the general reference to regulations as part of the LARIA “Regime”. However, the application for judicial review does not assert that any regulation made under LARIA is unauthorized or invalid. The AAN is concerned about the absence of a statutory power to proceed with its proposal to the MNR under LARIA. The AAN seeks an order that the LARIA Regime be amended within one year after the requested s. 52 declaration to provide for the duty to consult under s. 35 to be triggered and met.
[20] With respect to s. 35 of the Constitution Act, 1982, legislation and the exercise of statutory powers must comply with s. 35. However, s. 35 is not itself a statutory power under the JRPA: Whiteduck v. Ontario, 2023 ONCA 543, para. 60; JRPA, s. 1; Legislation Act, 2006, S.O. 2006, c. 21, Sch F, s. 87.
[21] Further, the legislative process at large is not the exercise of a statutory power: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at paras. 2, 18, 33, 38, per Karakatsanis J; Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161 (Div. Ct.), at para. 38.
[22] Nor is this a question of which procedure is preferrable. “Once jurisdiction is determined, then the procedure to be followed is the procedure prescribed in the forum with jurisdiction”: Alford v. Law Society of Upper Canada, 2018 ONSC 4269, at para. 45.
[23] The AAN further submits that this Court may hear the Constitutional Challenge because it is ancillary to the judicial review of the Decision. Most germane are two decisions of this Court: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 and Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708.
[24] In Mississauga First Nation, at para. 54, the Court found that a constitutional challenge to amendments to legislation was ancillary to and dependent on the determination of the duty to consult in a judicial review application. However, in that case, the Court found that there was a refusal to exercise a statutory power, based on an unreasonable delay of about three years in addressing the application for judicial review, during which time the legislation was amended to remove a key statutory provision. Similarly, in Regional Municipality of York, an environmental assessment was pending for several years during which an amendment was passed that rendered the matter moot.
[25] We do not have like circumstances in this case. There was no inter-related step taken after the Decision to undermine the challenge to the Decision in this application for judicial review. The Constitutional Challenge to the entire Regime, and related request that the Regime be amended, is not merely support for the judicial review. It is a request for broad primary relief including legislative amendments and should be decided by a Superior Court judge. The provincial superior courts have always occupied a position of prime importance to rule on the constitutional validity of legislation: MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at pp. 752-753. The cases relied upon by the AAN do not approach what would be needed to show that the Constitutional Challenge is ancillary to this application for judicial review.
[26] Having considered all the AAN submissions, we conclude that the Constitutional Challenge plainly does not fall within the jurisdiction of this Court under s. 2(1) of the JRPA. That claim is properly addressed before the Superior Court, not in this application for judicial review.
[27] In reaching this decision, we have taken into account the importance of s. 35 of the Constitution Act, 1982, and all that it serves, as well as the importance of access to justice. While those principles do not expand the Court’s jurisdiction as broadly as is suggested by the AAN on this motion, they are reasons to exercise our jurisdiction to transfer the Constitutional Challenge to the Superior Court along with terms to facilitate a smooth transfer. . Berentschot v. Ontario
In Berentschot v. Ontario (Ont Div Ct, 2025) the Ontario Divisional Court concluded that it has no JR jurisdiction to review a decision of the Superior Court:[1] The Applicant has brought an Application for Judicial Review of the decision of Justice C.M. Smith dated May 22, 2025, dismissing the Applicant’s claim pursuant to Rule 2.1.01(1) of the Rules of Civil Procedure, and the decision of Justice Leibovich dated July 10, 2025, dismissing the Applicant’s motion to “reconsider” the decision of Justice Smith.
[2] On July 31, 2025, I directed the Registrar to give notice to the Applicant that the Court was considering making an order dismissing her application under Rule 2.1.01.
[3] My Endorsement of July 31, 2025 stated:The Application for Judicial Review appears on its face to be frivolous, vexatious or an abuse of process.
The Divisional Court does not have jurisdiction to entertain an application for judicial review of a Superior Court Judge, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1. See: Bevan v. Ontario Society for the Prevention of Cruelty to Animals, 2006 CanLII 10140 (ON CA), at para. 8; 1147335; 9383859 Canada Ltd. v. The Court of Appeal for Ontario, 2023 ONSC 5344, at para. 10; Kostiuk v. Liu, 2024 ONSC 3500, at paras. 4 and 5.
Decisions of Superior Court may be appealed to the Divisional Court or the Court of Appeal depending on the nature of the Order to be appealed and whether leave to appeal must first be obtained: see sections ss. 6 and 19 of the Courts of Justice Act. An appeal from the decision of Justice Smith to dismiss the action lies to the Court of Appeal.
Pursuant to Rule 2.1.01, the registrar is directed to send notice to the Applicant in Form 2.1A to provide the Applicant with one opportunity to explain why the Application should not be dismissed in accordance with the process set out in Rule 2.1.01(3). ....
[8] Any attempt to bring a claim in a court that has no jurisdiction to grant the relief sought qualifies as an abuse of process, even if the claim is not otherwise frivolous or vexatious: Edusei v. Philips, 2025 ONSC 4723, at para. 17.
Analysis
[9] The Divisional Court is a statutory court and has no jurisdiction other than that conferred on it by statute: Re Service Employees International Union, Local 204 and Broadway Manor Nursing Home et al., 1984 CanLII 2112 (ON CA); Wabinski v. Pickleball Ontario, 2023 ONSC 7020, at para. 2; Harris-Saunders v. Toronto, 2021 ONSC 1407, at para. 14.
[10] As indicated, the Divisional Court does not have jurisdiction to entertain an application for judicial review of a Superior Court Judge, but only those of an “inferior court”. This is by virtue of the definition of “statutory power of decision” in s. 1 of the Judicial Review Procedure Act (JRPA), which includes “the powers of an inferior court”. Judicial Review in the context of the JRPA is a public law concept that establishes a statutory court to review the decisions of tribunals and inferior courts (and other persons exercising statutory powers) to ensure that these tribunals respect the rule of law: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, at para. 13.
[11] Decisions of Superior Court judges are subject to review by the Court of Appeal or the Divisional Court by way of appeal: ss. 6 and 19 of the Courts of Justice Act.
[12] The fact that the Applicant in this case characterizes her claim as a “Charter” claim does not immunize it from Rule 2.1, nor does s. 24(1) of the Charter operate as an independent source of jurisdiction: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 SCR 863, at paras. 261-262. “Section 24(1) gives no jurisdictional or procedural guide”, Mills at para. 267.
[13] As a statutory court, the Divisional Court’s jurisdiction must be found in its enabling statute, in this case, the JRPA. The Charter does not expand these statutory limits.
[14] Since the Divisional Court has no jurisdiction to judicially review the decision of a Superior Court judge, the Application for Judicial Review is dismissed under Rule 2.1.01 as an abuse of process. There will be no order as to costs. . Ledsham v. Hanna et al
In Ledsham v. Hanna et al (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion "for an extension of time to file a judicial review" against various criminal decisions:[13] In this case, Mr. Ledsham’s motion must be dismissed based on the first concern raised by the court. The Divisional Court does not have jurisdiction to review the orders of Justice Hanna. Criminal law falls within federal jurisdiction. The rules for the appeal of criminal matters are found in the Criminal Appeal Rules, which are made under the Criminal Code, R.S.C. 1985, c. C-46. Part XXVI of the Criminal Code also tightly limits the availability of certiorari. An application for certiorari is brought to a single judge of the Superior Court. The Divisional Court’s judicial review powers arise from the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, which is provincial legislation and which does not provide any authority for the judges of the Divisional Court to review criminal orders outside of the usual criminal process. The Divisional Court therefore plainly does not have jurisdiction to review criminal orders from the Ontario Court of Justice.
[14] Mr. Ledsham cites R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 for the proposition that judicial review is available where a lower court exceeds its jurisdiction or denies procedural fairness. But that case involved an application for certiorari to a single judge of the Superior Court of Justice. It did not involve review by the Divisional Court and does not say anything about the jurisdiction of the Divisional Court. . West Grey (Mun.) v. South Bruce Grey Health Centre
In West Grey (Mun.) v. South Bruce Grey Health Centre (Div Ct, 2025) the Divisional Court allowed a motion to quash a JR, here where the JR opposed "a decision made by South Bruce Grey Hospital Centre (“SBGHC”) to relocate 10 inpatient hospital beds from its site in Durham to its sites in Kincardine and Walkerton".
Here the Divisional Court sets out it's JR jurisdiction, and that it lacks inherent juridiction:Basis for judicial review
[27] The jurisdiction of the Divisional Court to grant public law remedies is set out in s. 2(1) of the JRPA: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. R.S.O. 1990, c. J.1, s. 2 (1). [28] The Divisional Court is a statutory court, without inherent jurisdiction. The court has no jurisdiction to grant certiorari or mandamus aside from the powers provided in s. 2(1): see Beaucage v. Metis Nation of Ontario, 2019 ONSC 633, at para. 22. . Hamid v. Canadian Centre for Professional Legal Education [jurisdiction]
In Hamid v. Canadian Centre for Professional Legal Education (Ont Divisional Ct, 2024) the Ontario Court of Appeal finds that it lacks jurisdiction to hear a JR, which should have been commenced in Manitoba.
Here the court finds that the Divisional Court lacks the jurisdiction to hear matters "made under the legislation of another province", that such a proposition is constitutionally flawed as a matter of inter-provincial jurisdiction and that the applicant fails to meet the Van Breda venue test:[10] This Court does not have jurisdiction to judicially review a decision made under the legislation of another province.
[11] As a statutory court created by s. 18 of the Courts of Justice Act, RSO 1990, c C.43 ("CJA"), the Divisional Court only has jurisdiction, power, and authority in Ontario. As a constitutional matter, provinces cannot legislate beyond their territorial boundaries, and the statutes of one province do not have the force of law in another province. This constitutional limit grounds an interpretive presumption that provincial statutes are not intended to apply extra-territorially.
[12] The Divisional Court also has jurisdiction to perform judicial review, as set out in the Judicial Review and Procedures Act, R.S.O. 1990, c.J.1 ("JRPA"), and specifically, with respect to the exercise or purported exercise of defined "statutory powers." The exercise of "statutory powers" referred to in the JRPA, does not include powers exercised by extra-provincial bodies under other provincial statutes. Ontario courts do not have the authority to grant administrative law remedies with respect to extra-provincial officials carrying out duties under extra-provincial statutes.
[13] In Re Anaskan and The Queen (1977), 1977 CanLII 1199 (ON CA), 15 OR (2d) 515 (C.A.), the Ontario Court of Appeal held that the Court does not have any power to grant administrative law remedies with respect to a Saskatchewan official carrying out duties and responsibilities under Saskatchewan statutes, even if the appellant was physically present in Ontario. The Court cannot quash the orders or decisions made by courts or tribunals in other Provinces, whose powers come from their provincially enacted statutes.
[14] In Dr. Rashidan v. The National Dental Examining Board of Canada, 2020 ONSC 4174, the Divisional Court found that it did not have jurisdiction to hear the matter. The applicant was seeking to qualify as a dentist in British Columbia and had no intention of qualifying in Ontario. The Board's authority arose in British Columbia. The authority to deal with judicial review would therefore be found in British Columbia's legislation, and not Ontario's.
[15] The Applicant seeks qualification in Manitoba. Neither CPLED nor the LSM are regulated by Ontario legislation. The "statutory powers" exercised by CPLED and LSM that the Applicant refers to stem from Manitoba's Legal Profession Act and Fair Registration Practices in Regulated Professions Act.
[16] While the Applicant also raises the issue of breach of contract, it is outside this Court's authority on an Application for Judicial Review. However, even if the issue was within jurisdiction, I find no real and substantial connection to Ontario.
[17] When considering whether this Court has jurisdiction under the common law, both parties submitted that the test to be applied is whether there is a real and substantial connection between the issue and the place (as between nations see: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 SCR 572 and as between provinces see: Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 DLR (4th) 467, and College of Optometrists of Ontario v. Essilor Group, 2019 ONCA 265, 145 OR (3d) 561 (C.A.): also see Dr. Rashidan, at para. 14).
[18] Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation to the forum: see Club Resorts, at para. 82. However, in determining whether there is a real and substantial connection, the court must first consider whether there is a presumptive connecting factor.
[19] The only connection to Ontario is that the Applicant lives here. However, the physical presence of one party in the jurisdiction is not, on its own, a sufficient presumptive factor: Club Resorts, at para. 86. Once a presumption is established, it can still be rebutted, which is easily done in this case. The presumption of jurisdiction in this case would be inappropriate.
[20] The Applicant was not attempting to qualify as a lawyer in Ontario. Neither CPLED nor the LSM carry on business, or purport to carry on business in Ontario. CPLED does not provide training or exams for law societies outside of Alberta, Manitoba, Nova Scotia, and Saskatchewan. The LSM does not and cannot qualify lawyers outside of Manitoba. A judicial review of their decisions could only be a review regarding the laws in Manitoba. As the Applicant properly identifies, their decisions would be subject to review under Manitoba's Legal Profession Act and Fair Registration Practices in Regulated Professions Act. Neither of their decisions would be subject to judicial review under the JRPA.
[21] I find that this Court does not have jurisdiction to hear this application. I find that there is no real and substantial connection between the issues at stake and Ontario. Manitoba is the proper forum for the Applicant's application. . Medeiros v. Vacheff
In Medeiros v. Vacheff (Div Court, 2024) the Divisional Court comments on it's own limited jurisdiction:[20] Lastly, on the merits, Mr. Medeiros makes submissions about the merits of his civil claim and challenges the concept that his civil claim can or should be precluded by the workers’ compensation regime. Mr. Medeiros further submits that this court should exercise its inherent jurisdiction to hear this application, relying on the inherent jurisdiction of the Superior Court. However, the Divisional Court is a statutory court. It does not have the inherent jurisdiction to proceed as suggested by Mr. Medeiros. . Smith v. Gega
In Smith v. Gega (Div Court, 2023) the Divisional Court noted a 2023 court memorandum that stated: "(a)s of January 25, 2023, as per the memorandum from Associate Chief Justice McWatt, issued pursuant to section 21(2)(c) [SS: "Composition of court for hearings"] of the Courts of Justice Act, all appeals from the Landlord and Tenant Board are to be decided by a single judge of the Divisional Court.":JURISDICTION
[13] The Divisional Court has jurisdiction pursuant to s.210 of the RTA, to hear appeals on questions of law. As of January 25, 2023, as per the memorandum from Associate Chief Justice McWatt, issued pursuant to section 21(2)(c) of the Courts of Justice Act, all appeals from the Landlord and Tenant Board are to be decided by a single judge of the Divisional Court. I therefore have appropriate jurisdiction to hear this matter.
[14] Under subs. 210 (4) and (5) of the RTA, I may affirm, rescind, or replace the Order; remit the matter to the Board with the Divisional Court’s opinion; or make any other order, including with respect to costs that I consider proper. . Soleimani v. Karimi
In Soleimani v. Karimi (Div Court, 2023) the Divisional Court comments on it's equitable remedy jurisdiction:[25] Puya submits that his claims on appeal that rely on equitable principles may fall outside of the jurisdiction of the Divisional Court under s. 19(1)(a.1). He cites the decision of Finlayson, J. in M.P.A.N. v. J.N., 2018 ONCJ 769. At para. 75 of that decision, Finlayson, J. noted that the Ontario Court of Justice does not have the jurisdiction to make an order of equitable set-off.
[26] M.P.A.N. is not helpful in determining our case. The Superior Court of Justice has jurisdiction to grant equitable relief, as confirmed in ss. 11(2) and 96 of the CJA. The Divisional Court is a branch of the Superior Court of Justice: CJA, s.18(1).
[27] Sections 11(2) and 96 of the CJA provide as follows:Superior Court of Justice
11 (1) The Ontario Court (General Division) is continued as a superior court of record under the name Superior Court of Justice in English and Cour supérieure de justice in French.
Same
(2) The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.
Rules of law and equity
96 (1) Courts shall administer concurrently all rules of equity and the common law.
Rules of equity to prevail
(2) Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails.
Jurisdiction for equitable relief
(3) Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided. . Murray v. Office of the Independent Police Review Director
In Murray v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court noted the limitations of the Divisional Court:[8] The Divisional Court is a statutory appellate and review court. It is not a court of inherent jurisdiction. This is well-trod ground and the applicant’s submissions to the contrary are without merit.
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