Court File and Parties

COURT FILE NO.: CV-17-585937 DATE: 20180709 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

RYAN ALFORD Applicant – and – THE LAW SOCIETY OF UPPER CANADA Respondent (Moving Party)

Counsel: Asher Honickman and Nassim Rahimi for the Applicant Nader Hasan and Stephen Aylward for the Respondent (Moving Party)

HEARD: March 8, 2018

FAVREAU J. :

Introduction

[1] Ryan Alford is a professor at Lakehead University who seeks to challenge the authority of the Law Society of Upper Canada [^1] (the "Law Society") to require that licensees create and abide by a Statement of Principles that acknowledges the obligation of licensees to promote equality, diversity and inclusion.

[2] Professor Alford has brought this challenge as an application to the Superior Court under Rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, relying specifically on subrules (d), (g), (g.1) and (h).

[3] On this motion, the Law Society challenges the jurisdiction of the Superior Court to deal with the application, arguing that the matter should have been brought as an application for judicial review to the Divisional Court.

[4] For the reasons that follow, I agree with the Law Society and I am ordering that the application be transferred to the Divisional Court to proceed as an application for judicial review.

Background facts

Statement of Principles

[5] In 2012, the Law Society established a Working Group on Challenges Faced by Racialized Licensees (the "Working Group") to study the issue of systemic racism in the legal profession. In 2016, following broad consultation within the legal profession and with the general public, the Working Group produced a report titled "Working Together for Change: Strategies for Addressing Issue of Systemic Racism in the Legal Profession" (the "Working Group Report").

[6] The Working Group Report made thirteen recommendations, including recommendation 3(1) that proposed the Statement of Principles requirement:

The Law Society will:

Require every licensee to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public.

[7] The Working Group also recommended that the Rules of Professional Conduct be reviewed and amended to "reinforce the professional obligations of all licensees to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal and paralegal professions".

[8] After receiving comments from members of the profession and the public, Convocation of the Law Society adopted the thirteen recommendations in the Working Group Report, including the Statement of Principles requirement.

[9] In September of 2017, the Law Society notified all licensees that they would be required to confirm that that they had adopted a Statement of Principles in their 2017 Annual Report to the Law Society.

[10] In November of 2017, the Law Society published a "Guide to the Application of Recommendation 3(1)". The Guide contained information meant to assist licensees to fulfill their obligation to adopt a Statement of Principles, including the following:

a. "The requirement reinforces existing obligations in the Rules of Professional Conduct and Paralegal Rules of Conduct which establish a lawyer's and paralegal's 'special responsibilities' to respect human rights laws and to honour the obligation not to discriminate in their dealings with others." b. Whereas, the Law Society does not require that licensees adopt a specific version of the Statement of Principles, the Law Society does make available two versions of a template that members can use to develop their Statement of Principles. c. The Law Society does not require that a licensee's Statement of Principles be shared with the Law Society or made available to the public.

[11] The Law Society has advised its members that for the 2017 Annual Report, there will be no sanctions for non-compliance with the Statement of Principles Requirement.

Application to the Superior Court

[12] Professor Alford commenced this application on November 6, 2017.

[13] The application originally sought injunctive relief, but Professor Alford is no longer pursuing that relief. Following the commencement of the application, Professor Alford amended the original notice of application. At the hearing of the motion, his counsel put forward a Fresh as Amended Notice of Application. With the agreement of the Law Society, I heard the motion on the basis of the proposed Fresh as Amended Notice of Application.

[14] The relief sought on the application is determinative of this motion. Accordingly, I am reproducing the relief which is as follows:

a. A Declaration that the Law Society of Upper Canada's requirement that licensees are required to create and abide by an individual Statement of Principles that acknowledges licensees' obligation to promote equality, diversity and inclusion generally and in licensees' behaviour towards colleagues, employees, clients and the public (the "Statement of Principles") is not supported by the Rules of Professional Conduct. b. A Declaration that licensees do not have an obligation under the Rules of Professional Conduct, c. H.19 (the "Code"), or otherwise to promote equality, diversity and inclusion generally and in licensees' behaviour towards colleagues, employees, clients and the public. c. In addition and in the alternative, a Declaration that the requirement to complete the Statement of Principles, and the obligation on the part of licensees to promote equality, diversity and inclusion generally and in licensees' behavior towards colleagues, employees, clients and the public, to the extent there exists such obligation under the Rules of Professional Conduct, are each ultra vires the Law Society Act, R.S.O. 1990, c. L.8 (the "LSA"). d. In addition and in the alternative, a Declaration that the requirement to complete the Statement of Principles, and the obligation on the part of licensees to promote equality, diversity and inclusion generally and in licensees' behavior toward colleagues, employees, clients and the public, to the extent that there exists such an obligation under the Rules of Professional Conduct, each constitute a vague and/or unintelligible requirement and is therefore inoperative. e. In addition and in the alternative, a Declaration that the requirement to complete the Statement of Principles, and the obligation on the part of licensees to promote equality, diversity and inclusion generally and in licensees' behavior towards colleagues, employees, clients and the public, to the extent that there exists such an obligation under the Rules of Professional Conduct, are each contrary to section 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter"); are not prescribed by law; and do not constitute a reasonable limit as can be demonstrably justified in a free and democratic society. f. An interim injunction estopping the Respondent from enforcing or relying upon the requirement to complete the Statement of Principles until such time as this Application can proceed on the merits. g. In the alternative, a Declaration that the requirement to complete the Statement of Principles shall be interpreted as follows: i. The requirement requires licensees to affirm existing obligations under the Rules of Professional Conduct and the Paralegal Rules of Conduct to comply with human rights laws. ii. The requirement shall not be interpreted to mean that licensees have an obligation to endorse, demonstrate a personal valuing of, or profess any specific belief or value, or that licensees have an obligation to persuade anyone about anything; iii. The requirement applies only to the professional conduct of licensees with each other, with employees, with clients and with the public. iv. The requirement shall not be interpreted as imposing any new obligation that licensees will or must take, or any specific actions that licensees will or must take.

Issue

[15] The only issue on this motion is whether the Superior Court has jurisdiction over this application or whether it should have been brought by way of an application for judicial review to the Divisional Court.

Positions of the parties

[16] The Law Society argues that its decision to require licensees to develop a Statement of Principles is an exercise of statutory power. As such, the application should have been brought in the Divisional Court, which has exclusive jurisdiction over applications for judicial review.

[17] Professor Alford disagrees with the Law Society's position, and argues that the application is in essence a challenge to the constitutional validity of the decision to require licensees to develop a Statement of Principles, and that the Superior Court has inherent jurisdiction over challenges to the constitutional validity of subordinate legislation, which he asserts includes the imposition of rules or norms by a public body. He further argues that an application in the Superior Court is preferable because it will allow him to develop the evidentiary record he believes he requires in order to support his challenge.

Analysis

Jurisdiction of the Superior Court and the Divisional Court

[18] Section 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"), sets out the broad jurisdiction of the Superior Court:

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.

[19] The Divisional Court is a Court constituted by statute and only hears matters that it is authorized to hear. Section 19 of the CJA sets out the Divisional Court's jurisdiction over appeals from some matters heard in the Superior Court. The Judicial Review Procedure Act, R.S.O. 1990, C. J.1 (the "JRPA") sets out the Court's jurisdiction over applications for judicial review.

[20] Section 6(1) of the JRPA provides that "subject to subsection (2), an application for judicial review shall be made to the Divisional Court". The exception set out in section 6(2) deals with urgent applications for judicial review, which can be heard in the Superior Court with leave of a judge of that Court.

[21] Given the mandatory language in section 6(1) of the JRPA, it is evident that, unless an application for judicial review is urgent, it must be heard by the Divisional Court. Therefore, the crux of the issue on this motion is whether the challenge brought by Professor Alford is an application for judicial review.

[22] Section 1 of the JRPA defines an application for judicial review as "an application under subsection 2 (1)", which in turn provides as follows:

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.

[23] In this case, the applicant only seeks declaratory relief and is not seeking orders in the nature of mandamus, prohibition or certiorari. Accordingly, only section 2(1)2 is relevant, and the issue is, therefore, whether the declarations sought are "in relation to the exercise […] of a statutory power".

[24] Section 1 of the JRPA defines the "exercise of a statutory power" as follows:

"statutory power" means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation, (b) to exercise a statutory power of decision, (c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing, (d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.

[25] A number of decisions have confirmed that, based on the provisions of the JRPA reviewed above, the Divisional Court has exclusive jurisdiction over legal challenges made to the exercise of a statutory power, and that such matters are to proceed as applications for judicial review.

[26] For example, in Canada Post Corp. v. C.U.P.W., [1989] O.J. No. 1583 (H. Ct.), at paras. 9 and 10, Doherty J., as he then was, reviewed the principles applicable as follows:

9 Initial jurisdiction must be determined by reference to the Courts of Justice Act, 1984, S.O. 1984, c. 11. Section 2 of that Act gives the Supreme Court original jurisdiction. Sections 13 and 14 go on to provide that the Supreme Court's jurisdiction shall be exercised by a single judge of the High Court "unless otherwise provided". Section 6 of the Judicial Review Procedure Act, provides otherwise in the case of applications for judicial review, and directs that save in cases of urgency, those applications should be heard by the Divisional Court. Applications for judicial review include those in which the applicant seeks to prohibit the exercise of a statutory power of decision (Re Union Felt Products (Ontario) Ltd. and The Queen (1975), 8 O.R. (2d) 438 (H.C.J.)), as well as applications for declaratory relief where the exercise of a statutory power is challenged: Re Olympia & York Developments Ltd. and City of Toronto (1980), 29 O.R. (2d) 353, 113 D.L.R. (3d) 695, 12 M.P.L.R. 219 (Div. Ct.); Re Doctors Hospital and Minister of Health (1976), 12 O.R. (2d) 164, 68 D.L.R. (3d) 220, 1 C.P.C. 232 (Div. Ct.); Judicial Review Procedure Act, s. 2(1).

10 If the application before me is in the nature of an application for judicial review, I have no jurisdiction. In deciding this question, I must go beyond the language in which the relief claimed is framed to the substance of the claim. In Re Koumoudouros and Municipality of Metropolitan Toronto (1982), 37 O.R. (2d) 656, 136 D.L.R. (3d) 373, 67 C.C.C. (2d) 193, Catzman J. was required to determine jurisdiction as between the High Court and the Divisional Court on an application under s. 24(1) of the Canadian Charter of Rights and Freedoms (the "Charter"). The applicant alleged that certain by-laws promulgated by the city infringed his constitutional rights. In deciding the jurisdictional question, Catzman J. said at p. 659 O.R., p. 376 D.L.R.:

In light of the background of this matter and the nature of the attack which the applicant proposes to put forward to establish the declaration of invalidity or inoperability which he seeks it appears to me that the substantive application is essentially one for judicial review. ... Such an application must be made to the Divisional Court.

[27] In J.N. v. Durham Regional Police Service, 2012 ONCA 428, at para. 16, the Court of Appeal for Ontario found that an application commenced pursuant to Rule 14.05 of the Rules of Civil Procedure had improperly been commenced in the Superior Court and should have been brought as an application for judicial review:

In Ontario, the procedure for attacking decisions of public administrative bodies is by way of judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Under ss. 6 and 7 of that Act, in the absence of urgency (not a factor here), an application for judicial review is to be made to the Divisional Court. The application judge here was not sitting as a judge of the Divisional Court; he was hearing an application purporting to be brought under rule 14.05(3)(g.1) of the Rules of Civil Procedure - a proceeding by application where the relief claimed is for a remedy under the Canadian Charter of Rights and Freedoms. In our view, the rule 14.05 application procedure was not open to J.N. in these circumstances because the substance of her claim is for judicial review of the administrative decision of a public statutory body: see Bard v. Longevity Acrylics Inc., [2004] O.J. No. 3597 (C.A.); Canada Post Corp. v. C.U.P.W. (1989), 70 O.R. (2d) 394 (H.C.J.), at pp. 397-398; Koumoudouros v. Municipality of Metropolitan Toronto (1982), 37 O.R. (2d) 656 (H.C.J.), at p. 659. A court must have jurisdiction independent of rule 14.05 before it can consider the appropriate vehicle for bringing the matter forward, whether it be by action or application: see Canada Post Corp., at p. 397; Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213 (S.C.), at para. 10.

[28] More recently, in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div. Ct.), the Divisional Court considered a situation in which two similar matters were heard together. Originally, one of the matters was commenced as a Rule 14.05 application, leading the Court to consider whether the Divisional Court had jurisdiction over both matters, which the Court found it did. In reaching its conclusion, at paras. 46 and 47, the Court found that, because the matter originally commenced as a Rule 14.05 application in the Superior Court involved the exercise of a statutory power, the Divisional Court had jurisdiction while the Superior Court did not have jurisdiction:

47 Second, and more fundamentally, the declaratory and other relief sought in the HR Application pertains to the exercise of the statutory power of the CPSO to enact the HR Policy. Indeed, the Applicants expressly recognized this in the framing of the Maid Application. The Court of Appeal has stated that, except in cases of emergency that are not applicable in the present circumstances, such an application should be brought by way of an application for judicial review: see J.N. v. Durham (Regional Municipality) Police Service, 2012 ONCA 428 at paras. 16, 21 and 23.

48 Given the foregoing, in my view, the HR Application was wrongly commenced in the Superior Court as an application under Rule 14 as it was, at all times, in substance, an application for judicial review and should be treated as such…

[29] Accordingly, in order to determine whether this application ought to have been brought as an application for judicial review in the Divisional Court, I must consider whether the Law Society's decision was the "exercise of a statutory power".

Statement of Principle is the exercise of a statutory power

[30] The Law Society argues that the decision to require licensees to adopt a Statement of Principles was an exercise of statutory power. In making this argument, the Law Society relies on the statutory scheme that gives the Law Society its decision making powers.

[31] Indeed, from a review of the Law Society Act, R.S.O. 1990, c. L.8, it is evident that Convocation of the Law Society is empowered to set standards for persons practicing law in Ontario.

[32] Section 4.1 of the Law Society Act sets out the Law Society's functions:

It is a function of the Society to ensure that,

(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide…

[33] Section 4.2 of the Law Society Act sets out the principles applicable to the Law Society in the performance of its duties:

In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

[34] Section 10 of the Act provides that the Benchers are to govern the affairs of the Law Society.

[35] Section 62.01(10) gives very broad by-law making powers to the Law Society.

[36] In this case, the decision making process that led to the requirement that members adopt a Statement of Principle involved, first, a recommendation by the Working Group, and, second, adoption by the Law Society of the recommendations. While the thirteen recommendations included a recommendation that the Rules of Professional Conduct be amended to include a requirement that licensees develop a statement of principles, the Law Society has not done so. Accordingly, in my view, the power exercised by the Law Society was made pursuant to the Convocation's general powers to manage its affairs, and, as such, the decision was the exercise of a statutory power. Put another way, Convocation derives its authority to impose requirements on its members from the Law Society Act and from its general powers to manage its affairs. Ultimately, it will be for the Court hearing the application on its merits to decide whether the Law Society has the authority to require licensees to adopt a Statement of Principles, but there is no doubt that its decision to impose this requirement derives from the Law Society’s statutory powers.

[37] The decision at issue in this case is similar to the decision made by the College of Physicians and Surgeons of Ontario (the "CPSO") in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div. Ct.). Similarly to the Law Society, the CPSO's objects include establishing standards for physicians and the CPSO’s Council is charged with managing its affairs: sections 3 and 4 of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. In that case, the CPSO made policies of general application requiring physicians to make referrals to other physicians in situations where they did not wish to provide medical services due to "reasons of conscience or religion". The process the CPSO followed in developing and adopting the policies is similar to the process followed in this case. Initially, the CPSO established a working group that consulted broadly and then made recommendations, after which the recommended policies were adopted by the CPSO Council. In that case, the Divisional Court held, at para. 47, that the application "pertains to the exercise of the statutory power of the CPSO to enact the" policy.

[38] Professor Alford does not appear to dispute that the Law Society's decision was an exercise of statutory power. Rather, he takes the position that the Statement of Principles requirement is a form of subordinate legislation such as a regulation, and that the Superior Court has always had inherent jurisdiction to consider constitutional challenges to subordinate legislation. The applicant argues that the JRPA does not oust this inherent jurisdiction. In making this argument, the applicant relies on a number of decisions dealing with challenges to regulations made by the executive branch of government.

[39] The applicant relies primarily on the following authorities:

a. Re Danson and Attorney-General of Ontario, [1987] O.J. No. 887 (C.A.); aff'd Danson v. Ontario (Attorney General), [1990] S.C.J. No. 92: The applicant brought an application to the High Court of Justice pursuant to Rule 14.05(3)(h) of the Rules of Civil Procedure challenging amendments to the Rules of Civil Procedure dealing with costs against solicitors personally. In that case, Finlayson J.A. held, at para. 7, "we are not addressing the jurisdiction of a High Court judge to entertain an attack on the rules. There is no question that he is exercising the authority of a superior court of general jurisdiction and has all the powers necessary to do justice between the parties…" b. Falkiner v. Ontario (Ministry of Community and Social Services), [1996] O.J. No. 3737 (Div. Ct.): The applicants brought an application for judicial review in the Divisional Court challenging regulations made under the Family Benefits Act, R.S.O. 1990, c.F.2, dealing with the definition of "spouse". The challenge included arguments regarding whether the regulations were ultra vires the legislation and whether they infringed Charter rights. The majority of the Divisional Court found that the challenge was premature because the issue of entitlement to benefits should first be decided by the tribunal with jurisdiction over such issues. In obiter, Borins J., as he then was, at para. 129, held that while the Divisional Court has jurisdiction over the issue of the vires of the regulation, he questioned whether the Court had jurisdiction over the Charter challenge, holding that "[i]t seems to me that this is a direct constitutional attack on subordinate legislation, brought under s. 24(1) of the Charter, and, as such, should be before a trial court". c. Di Cienzo v. Attorney General of Ontario, 2017 ONSC 1351 (Sup. Ct.): The applicant brought an application in the Superior Court pursuant to Rule 14.05 of the Rules of Civil Procedure challenging a regulation made under the Highway Traffic Act, R.S.O. 1990, c. H.8, requiring drivers to have visual acuity in both eyes. In that case, Belobaba J. noted that constitutional challenges to subordinate legislation are routinely made to the Superior Court.

[40] In my view, the applicant's argument and reliance on these cases is problematic for two reasons.

[41] First, on its face, the application is not uniquely or even primarily a Charter challenge. As set out above, the application seeks a number of declarations related to the vires of the Law Society's authority to require licensees to adopt a Statement of Principles. It does not matter that the applicant states that this is not the primary relief sought. The fact remains that it is amongst the relief sought. This relief is uniquely within the jurisdiction of the Divisional Court as it engages questions of whether Convocation's statutory authority to manage the Law Society's affairs includes the authority to require licensees to adopt a Statement of Principles. Even the decisions relied on by the applicant recognize that questions of vires fall within the exclusive jurisdiction of the Divisional Court: Falkiner, at para. 111; Di Cienzo, at para. 21.

[42] Second, I do not agree with the applicant's argument that the Superior Court has jurisdiction over the portion of the application that seeks to challenge the Law Society's decision on Charter grounds. In Canada Post, at para. 10, and J.N., at para. 16, it was emphasized that courts should consider the subject matter of the challenge and not its form in deciding whether a matter should proceed as an application for judicial review before the Divisional Court. In the cases relied on by the applicant, the Courts stated that the Superior Court has inherent jurisdiction to deal with Charter challenges to subordinate legislation and in Di Cienzo, Belobaba J. held that there was a long standing practice of such challenges being brought as Rule 14.05 applications. In this case, the Law Society's decision is the administrative decision of a public body and not a decision of the executive branch of government to enact subordinate legislation. As held in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div. Ct.) and as reviewed above, the Divisional Court has exclusive jurisdiction over such challenges, whether they are based on arguments regarding the vires or the constitutionality of the Law Society's decision. 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.

[43] The applicant argues that the Law Society's decision in this case is the imposition of a rule or norm, and is therefore a form of subordinate legislation. In advancing this argument, the applicant relies on the Supreme Court of Canada's decision in Greater Vancouver Transportation Authority v. Canadian Federation of Students - British Columbia Component, 2009 SCC 31, to argue that "subordinate legislation" includes any regulation, rule, by-law, order or rule. However, that decision dealt with the issue of whether the advertising policies of transport authorities are subject to the Charter. The Court held that, given that the policies had the effect of imposing norms, they were subject to the Charter. In this case, there is no dispute that the Law Society's decision is subject to the Charter. The only issue on this motion is the forum in which the applicant's challenge is to be resolved and, therefore, the Greater Vancouver Transportation Authority decision has no relevance to determining this issue. [^2]

[44] Ultimately, given the wording of the JRPA to the effect that a "statutory power of decision" includes the making of a regulation, there may still be room for debate on the issue of whether the Divisional Court rather than the Superior Court has jurisdiction to hear an application that challenges the validity of a regulation made by the executive branch of government on Charter grounds. However, that debate does not arise in this case. The Law Society's decision does not fall within the scope of applications identified by Belobaba in Di Cienzo as regularly brought before the Superior Court by way of Rule 14.05 applications.

[45] Professor Alford also argues that an application to the Superior Court is preferable to an application for judicial review in the Divisional Court because an application in the Superior Court will allow him to develop the necessary evidentiary record for his challenge. With all due respect, this argument places the cart before the horse. The Law Society's argument is that the Superior Court does not have jurisdiction over this application. The issue is not whether an application for judicial review or a Rule 14.05 application is the preferable procedure. Once jurisdiction is determined, then the procedure to be followed is the procedure prescribed in the forum with jurisdiction, which in this case is the Divisional Court.

[46] Having said this, it is important to note that the fact that the challenge will proceed as an application for judicial review does not preclude the applicant from developing an appropriate evidentiary record. His ability to do so will be governed by the principles set out in decisions such as Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 (Div. Ct.), which dealt with the admissibility of evidence on applications for judicial review involving constitutional challenges.

[47] Accordingly, I find that the Divisional Court has exclusive jurisdiction over the subject matter of this application.

Remedy

[48] The Law Society requests that the matter be transferred to the Divisional Court to proceed as an application for judicial review.

[49] Section 110(1) of the CJA provides that, where a proceeding is brought before the wrong court, I have authority to transfer it to the right court.

[50] Accordingly, I am exercising my authority to transfer this application to the Divisional Court to be heard as an application for judicial review.

Costs

[51] At the conclusion of the hearing, I received the parties' costs outlines. Both sides seek very similar amounts if successful. The Law Society seeks $9,952.57 inclusive or HST and the applicant seeks $9,803.96 inclusive of HST.

[52] Dr. Alford argues that, if he is unsuccessful, he should pay no costs or reduced costs on the basis that the case involves public interest litigation. The Law Society disagrees with this position, arguing that the issues on this motion are not novel and that the motion should not have been necessary.

[53] I agree with the Law Society that the issues on this motion are not novel and, accordingly, that the Law Society should be entitled to its costs of the motion in the amount sought, namely $9,952.57. However, I am exercising my discretion with respect to the timing of payment and order that the applicant pay the Law Society’s costs within 30 days after the conclusion of the application for judicial review.

Conclusion

[54] For the reasons set out above, the motion is granted and the application is transferred to the Divisional Court to be heard as an application for judicial review.

[55] The applicant it to pay the Law Society’s costs in the amount of $9,952.57 all inclusive, within 30 days after the conclusion of the application for judicial review.

FAVREAU J.

RELEASED: July 9, 2018

[^1]: On January 1, 2018, the respondent changed its name to the Law Society of Ontario, but the application was commenced before the name change. [^2]: On July 3, 2018, with the consent of the respondent, counsel for the applicant sent me a copy of the decision in Fodor v. North Bay (City), 2018 ONSC 3722 (Div. Ct.), on the basis that it raises issues relevant to this motion. The case involved an application for judicial review of a municipal by-law on Charter grounds. At paragraph 13, the Court stated that the issues raised by the application could also have been raised by way of an action or application in the Superior Court. The Court nevertheless dealt with the matter as an application for judicial on the basis that the Divisional Court also had jurisdiction over the matter and that it was the venue chosen by the parties. I note that the reference to the Superior Court’s jurisdiction over the challenge is obiter and does not include any case citations. In any event, given the grounds on which I have found that the Divisional Court has exclusive jurisdiction in this case, in my view, the Divisional Court’s obiter comments in Fodor have no bearing on the outcome of this motion.