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Torkin Manes LegalWatch
Jan 2, 2019

Call Off the Funeral: Ontario Divisional Court Revives “True Questions of Jurisdiction” in Judicial Review

By Marco P. Falco
Torkin Manes LegalWatch

Over the last decade, Canadian Courts have struggled with the issue of when to apply the less deferential standard of review of “correctness” in the review of administrative tribunal decisions.

In a 2018 decision, Canada (Canadian Human Rights Commission) v. Canada (AG), 2018 SCC 31, the Supreme Court of Canada recognized that where a tribunal interprets its home statute, the Court presumptively applies the deferential standard of review of reasonableness, subject to four exceptions. One of these four exceptions occurs where the question under review raises a “true question of vires or jurisdiction”.    

True Questions of Vires Were On “Life Support”

The problem was that no Canadian Court, including the Supreme Court of Canada, was able to identify a true question of jurisdiction attracting correctness review. The concept remained elusive. Canadian Courts were reluctant to re-introduce ambiguous concepts such as “true questions jurisdiction or vires” that once plagued administrative law prior to the leading  decision on standard of review, Dunsmuir v. New Brunswick, 2008 SCC 9.

As Justice Gascon observed in Canada (Canadian Human Rights Commission), the very existence of “true questions of jurisdiction” as a recognized category attracting correctness review was on “life support”:

The reality is that true questions of jurisdiction have been on life support…No majority of this Court has recognized a single example of a true question of vires, and the existence of this category has long been doubted. Absent full submissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will only reiterate this Court's prior statement that it will be for future litigants to establish either that the category remains necessary or that the time has come, in the words of Binnie J., to "euthanize the issue" once and for all...

Ontario Divisional Court Identifies a True Question of Vires

Despite the Supreme Court of Canada’s tolling of the death knell on true questions of jurisdiction, a recent decision of the Ontario Divisional Court, Fabrikant v. Law Society of Ontario, 2018 ONSC 7393, has breathed new life into this legal concept.

Fabrikant involved, amongst other things, an application for judicial review of a decision of the Complaints Resolution Commissioner (the “Commissioner”) of the Law Society of Ontario. 

As the Divisional Court characterized it, the Commissioner declined to exercise his jurisdiction to review the applicant’s complaint against a lawyer.  

The Commissioner’s decision followed an initial ruling by a Law Society intake officer who had declined to investigate the complaint and closed the file because it related to a “legal issue” and not to an allegation of professional misconduct raised against the lawyer.  

Once the intake officer had decided that the complaint should not be pursued by way of further investigation, it was not eligible for review by the Commissioner. 

In particular, section 4(1)(a) of the Law Society’s By-Law’s provided that a complaint could only be reviewed by the Commissioner if, amongst other things, the “merits of the complaint have been considered by the Society”. 

The Commissioner in this case held that since an investigation into the merits of the complaint was not conducted by the Law Society, he had no jurisdiction to conduct a review.

On an application for judicial review, the Ontario Divisional Court upheld the Commissioner’s decision to decline jurisdiction.  

In reviewing the decision, the Court applied the standard of review of correctness, on the assumption that the Commissioner’s refusal to exercise his jurisdiction to review the applicant’s complaint amounted to a true question of vires:

This raises a true question of jurisdiction:  did the Commissioner have the authority to make the inquiry that the Applicant requested?  In this case the standard of review is correctness….However, if this is not a true question of jurisdiction, we find that the Commissioner’s response also meets a standard of review of reasonableness…    

The Court’s identification of a true question of vires in Fabrikant is both remarkable and inconsequential. 

On the one hand, the Court did not dwell on the standard of review in its reasons for decision, likely because it intended to uphold the Commissioner’s decision on either the reasonableness or correctness standard.

That being said, Fabrikant represents one of the few instances at Canadian law post-Dunsmuir where a Court has identified a true question of vires justifying correctness review.   

The reasons are perhaps obvious. The Commissioner expressly declined to exercise his jurisdiction in this case. The issue before the Court concerned the scope of the Commissioner’s authority under the governing by-law, i.e. his ability to act pursuant to his home statute. On this reading, a true question of jurisdiction was engaged.

Have True Questions of Jurisdiction been Revived?

The impact of Fabrikant remains uncertain. Whether this decision opens the floodgates and returns “standard of review” jurisprudence to its pre-Dunsmuir roots is not yet known. 

What Fabrikant does show is that litigants will continue to test the limits of true questions of jurisdiction in the hopes of quashing tribunal decisions and having them assessed by the Courts on a correctness standard.     

Fabrikant illustrates that although true questions of jurisdiction may be on life support, they are very much alive.