Judicial Review Properly Initiated at Divisional Court

AuthorOmar Ha-Redeye
DateJuly 15, 2018

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...

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