CITATION: Isaac v. City of Mississauga, 2011 ONSC 8065
COURT FILE NO.: DC-11-0096-JR
DATE: 2011-12-28
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: DAVID GRANT ISAAC - and – CITY OF MISSISSAUGA JUDICIAL INQUIRY, HONOURABLE JUSTICE CUNNINGHAM, COMMISSIONER
BEFORE: Justice N.M. Mossip
COUNSEL: William C. McDowell, Ian MacLeod, for the Respondents, Moving Parties
D. Isaac, Self-represented, Applicant, Responding Party
HEARD: December 15, 2011
DECISION
[1] This is a motion brought by the respondents (“moving parties”) for an order quashing the application for a judicial review of the Report of the City of Mississauga Judicial Inquiry.
[2] The main basis for the motion to quash is that the applicant has no “standing” to bring the application. There is no dispute this court may quash a judicial review application where it is “plain and obvious that the judicial review application would fail” or where the court is satisfied that the “case is beyond doubt”. Re: Ofner Essex Resources v. Ontario (Minister of Environment and Energy) [1996] 18 C.E.L.R. (N.S.) 317 (Ont. Div. Ct.). One of the grounds for the dismissal of a judicial review application is where the applicant has no standing to bring the application. Apotex Inc. [1995] I.F.C. 588 (Fed. C.A.).
[3] Mr. Isaac submits that he does have standing to initiate this judicial review application for several reasons:
• He is a resident of Mississauga and pays taxes in Mississauga.
• His taxes paid for the costs of the inquiry.
• He is a practicing lawyer in Mississauga and as an “officer of the court”, if he sees something happening that is wrong judicially, he is in a better position that a non-lawyer citizen to assess that wrong-doing and should challenge it.
• What occurred during the inquiry was wrong and was unfair to the public and he could see that as a lawyer. It is his duty to come forward and challenge the Inquiry findings.
• He has “public interest” standing as a resident and taxpayer of Mississauga.
• There is a genuine issue and important issues that must be heard by the court.
• There is no other reasonable and effective manner in which the issue may be brought before the court.
[4] As set out in Mr. Isaac’s factum, the thrust of his judicial review application, if it is permitted to proceed, is to seek an order quashing that portion of the inquiry report which determined that the Mayor of Mississauga breached the common law principles with respect to conflict of interest when she took certain actions, which actions were fully canvassed during the inquiry.
Decision
[5] I am satisfied, based on the case law, that the applicant has no standing to bring this application for a judicial review. The motion can be disposed of on this narrow ground.
[6] The moving party’s factum fulsomely sets out the background with respect to the inquiry’s mandate, how the inquiry was set up, the Commissioner’s ruling on July 8, 2010, and the inquiry’s findings. I do not need to repeat that background here – Mr. Isaac did not take issue with any of that factual background.
[7] It is relevant that the Inquiry Terms of Reference do not mention Mr. Isaac; Mr. Isaac took no part in the inquiry’s proceeding, either as a party or as counsel to a party; Mr. Isaac did not seek or obtain standing as a party at the inquiry; and the Report of the Inquiry does not make any reference to or finding about Mr. Isaac. In other words, Mr. Isaac was not directly involved in the inquiry in any way, nor was he directly affected by its findings.
[8] Mr. Isaac did not provide a single decision of the court that suggests he does have standing on the basis he set out in his factum.
[9] The decision of Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. O.R. at paras. 21-22 (Q.C.) sets out that standing in a judicial review arises out of a “direct, personal interest”.
[10] There was no evidence presented on this motion of such an interest on the part of Mr. Isaac. He is a resident and taxpayer of Mississauga; that is his only interest.
[11] As a result, I conclude Mr. Isaac has no private standing to bring this application.
[12] The only other way Mr. Isaac could acquire standing to bring this judicial review is to be granted “public interest standing”.
[13] As the case law makes clear, the exercise of judicial discretion to grant public interest standing is exercised in narrow circumstances.
[14] In the factum of the moving party at paras. 30, 31 and 32, the principles of the leading jurisprudence in this area are set out. That jurisprudence is succinctly summarized in those paragraphs as follows:
…as a general rule, it is not open to a person, simply because he is a citizen and a taxpayer or is either the one or the other, to invoke the jurisdiction of a competent court to obtain a ruling on the interpretation or application of legislation, or on its validity, when that person is not either directly affected by the legislation or is not threatened by sanctions for an alleged violation of the legislation. Mere distaste has never been a ground upon which to seek the assistance of a court. … the prevailing policy is that a challenger must show some special interest in the operation of the legislation beyond the general interest that is common to all members of the relevant society. …
The traditional judicial concerns about the expansion of public interest standing may be summarized as follows: the concern about the allocation of scarce judicial resources and the need to screen out the mere busybody; the concern that in the determination of issues the courts should have the benefit of the contending points of view of the most directly affected by them; and the concern about the proper role of the courts and their constitutional relationship to the other branches of government.
The applicant bears the onus of demonstrating that the following requirements for granting public interest standing have been met;
(a) a serious issue must be raised;
(b) the applicant must have a genuine interest in the issue; and
(c) there must be no other reasonable and effective manner in which the issue may be brought before a court.
See also Schaffer v. Wood, 2011 ONCA 716 at para. 37.
[15] I agree completely with the moving party that in applying the above principles to the facts of this case,
(a) There may be a serious issue to be raised, but
(b) Mr. Isaac is not directly affected nor has a genuine interest with respect to the Ruling of the Commissioner and the inquiry findings other than as a resident of Mississauga. Like any other resident, that basis alone has never been sufficient to grant public interest standing; and
(c) There are many other individuals and organizations with a much greater interest that Mr. Isaac who might have standing to challenge the inquiry if they had done so in time and their challenges were meritorious.
[16] Persons who have a direct stake in the outcome of a dispute and subsequent litigation are the proper parties to bring a dispute to the courts.
[17] Again, I cannot say it better than Cory J. in Canadian Council of Churches Canada (Minister of Employment and Immigration), [1992] IS. C.R. 236 where he wrote at para. 39:
I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate and issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a [sic] well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.
[18] Accordingly, for all of the above reasons, Mr. Isaac does not have private standing in his personal capacity, nor can he meet the test for public interest standing. The motion of the moving party is granted and the application for judicial review is quashed.
[19] Order to go:
Motion is granted and judicial review is quashed.
Parties may submit cost submissions within 30 days of today’s date.
Mossip J.
DATE: December 28, 2011
CITATION: Isaac v. City of Mississauga, 2011 ONSC 8065
COURT FILE NO.: DC-11-0096-JR
DATE: 2011-12-28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DAVID GRANT ISAAC - and – CITY OF MISSISSAUGA JUDICIAL INQUIRY, HONOURABLE JUSTICE CUNNINGHAM, COMMISSIONER
BEFORE: Justice N.M. Mossip
COUNSEL: William C. McDowell, Ian MacLeod, for the Respondents, Moving Party
D. Isaac, Self-represented, Applicant, Responding Party
DECISION
DATE: December 28, 2011