Judicial Review Properly Initiated at Divisional Court

The first stop in the lawsuit against the Statement of Principles concluded this month, with the Ontario Superior Court of Justice upholding a motion by the law society to transfer the matter to the Divisional Court.

The Amended Application in this matter disposed of the injunctive relief originally sought, and instead seeks a number of declarations, including an interpretation and content of what the Statement of Principles obligation means, that the requirements are ultra vires the Law Society Act, and challenging the constitutionality of the requirements.

It’s the latter relief, the constitutionality of the Statement of Principles, that the Applicant sought to have the matter heard first in the Superior Court, which is a court of inherent jurisdiction empowered by the Courts of Justice Act as follows:

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.

In contrast, the Divisional Court is a court created by statute, and does not have inherent jurisdiction. Although it is empowered under s. 19 of the Courts of Justice Act to hear some appeals from the Superior Court, it also contains powers under s. 6(1) of the Judicial Review Procedure Act to hear non-urgent applications for judicial review.

For this reason, the Divisional Court in Ontario is the main court of appeal for administrative tribunals in the province. Furthermore, the wording under the Judicial Review Procedure Act is mandatory, using the word “shall,” and does not leave any room for interpretation for judicial review to the Superior Court of Justice where the matter is not urgent and is not likely to involve a failure of justice.

The only question then is whether the challenge to the Statement of Principles could be properly characterized as a judicial review. The Applicant acknowledged that although the law society’s decision was an exercise of statutory power, it was also a form of subordinate legislation akin to a regulation, which was properly reviewed by the Superior Court.

The Applicant advanced Re Danson and Attorney-General of Ontario in support of this position, in a case challenging amendments to the Rules of Civil Procedure that allowed for costs to be paid personally by a lawyer, as well as Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component. He also relied on Falkiner v. Ontario and Di Cienzo v. Attorney General of Ontario, which dealt with challenges to regulations under statutes brought before the Superior Court.

Justice Favreau rejected this arguments, indicating that the primary basis of the challenge was the exercise of power by the law society, and not the Charter challenge involved. The administrative nature of this challenge put it squarely in the jurisdiction of the Divisional Court, which was acknowledged by the same authorities advanced by the Applicant.

She also rejected the argument that the Superior Court had jurisdiction over the Charter aspects of this challenge either, relying on Canada Post Corp. v. C.U.P.W. and J.N. v. Durham Regional Police Service to emphasize that courts should consider the subject matter of a challenge, and not the form, when deciding the manner a matter should proceed.

This decision was by an administrative public body, and not an executive branch of government enacting subordinate legislation. The recent decision in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario confirmed the Divisional Court has exclusive jurisdiction over these types of decisions,

[42] …Ultimately, the issue is whether the Law Society was authorized to make the decision. It is not authorized to make a decision that exceeds its statutory powers and, given that it is a statutory body bound by the Charter, it is also not authorized to exercise its statutory powers in a manner that violates the Charter. Regardless of the grounds of attack, the issue remains whether the Law Society had the authority to exercise its statutory powers as it did.

Ultimately this should not be a surprising outcome, as this case mirrors another one which I’ve indicated has already set the path for this particular challenge. The proceedings in Trinity Western, which also were initiated in Divisional Court despite raising constitutional issues, where properly heard as a judicial review. And like Trinity Western and Groia any judicial review or subsequent appeals will likely find that this exercise of statutory authority is reasonable and within the scope of its intended power.

What this application has only served to do thus far is create unnecessary controversy and opposition to to the Statement of Principles, and provide some false cover that there are legitimate interpretation or constitutional issues at stake.

Instead, I’ve spent the past year presenting at the new Equity, Diversity and Inclusion CPDs required by all licensees in Ontario, where after some initial skepticism, resistance, and even hostility, we have been able to come to some areas of agreement:

• compelling expression is usually an undesirable thing, even in the legal community, and racism cannot be forced out of existence
• the law society did not communicate the Statement of Principles requirement as effectively as they should have on launching it, and might have considered starting with one of the other requirements (like CPDs that would explain the others)
• the Statement of Principles is less relevant (but not completely irrelevant) to licensees who are sole practitioners or do not have any co-workers or staff working for them

On coming to these areas of agreement, we’ve generally found next to no opposition to the Statement of Principles, once I’ve had the opportunity to explain what is actually required of them.

The courts are not the ideal forum to advance these issues or objections, irrespective of the appropriate forum. Conversations and fostering better understanding is.

Once this lawsuit is abandoned, my hope is that we can all return to promoting this instead.