Di Cienzo v. Attorney General of Ontario

[Indexed as: Di Cienzo v. Ontario (Attorney General)]

Ontario Reports Ontario Superior Court of Justice, Belobaba J. April 21, 2017 138 O.R. (3d) 41 | 2017 ONSC 1351

Case Summary

Charter of Rights and Freedoms — Procedure on Charter application — Applicant bringing application under rule 14.05 of Rules of Civil Procedure for declaration that provincial regulation violated s. 15 of Charter and was of no force or effect — Superior Court of Justice having jurisdiction to hear application — Applicant not required to proceed by way of application for judicial review in Divisional Court — Canadian Charter of Rights and Freedoms, s. 15 — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 14.05.

The applicant's Class C driver's licence was automatically revoked under the Drivers' Licences Regulation, O. Reg. 340/94 when she lost an eye to cancer. As a result, she was unable to continue to work as a bus driver. She brought an application under rule 14.05 of the Rules of Civil Procedure for a declaration that s. 18(3) of the Regulation violates s. 15(1) of the Canadian Charter of Rights and Freedoms and is of no force or effect. The respondent brought a motion to transfer the application to the Divisional Court, arguing that an application challenging the constitutionality of a provincial regulation is an application for judicial review and falls within the exclusive jurisdiction of the Divisional Court.

Held, the motion should be dismissed.

A constitutional challenge to an otherwise validly enacted regulation because it violates the Charter is not a challenge that questions the exercise of a statutory power to make a regulation. The Superior Court has jurisdiction to hear rule 14.05 applications for declarations that challenge the constitutional validity of subordinate legislation. An application under rule 14.05(3)(h) makes the most sense for such constitutional challenges. If it turns out that material facts are in dispute, the application judge can direct the trial of an issue or convert the entire application into an action. Neither of those directions would be available if the same application was brought in the Divisional Court.

Falkiner v. Ontario (Ministry of Community and Social Services), 1996 ONSCDC 12495, [1996] O.J. No. 3737, 140 D.L.R. (4th) 115, 94 O.A.C. 109, 44 Admin. L.R. (2d) 256, 40 C.R.R. (2d) 316, 66 A.C.W.S. (3d) 778 (Gen. Div.); R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, 228 C.C.C. (3d) 385, EYB 2008-130228, [2008] 5 W.W.R. 387, J.E. 2008-514, 371 N.R. 231, 290 D.L.R. (4th) 17, 425 A.R. 79, 54 C.R. (6th) 197, 87 Alta. L.R. (4th) 203, 168 C.R.R. (2d) 34, 78 W.C.B. (2d) 303, consd

Other cases referred to

Allstate Insurance Co. of Canada v. Toronto (City) (2001), 2001 ONCA 21180, 57 O.R. (3d) 191, [2001] O.J. No. 4776, 208 D.L.R. (4th) 712, 152 O.A.C. 177, 89 C.R.R. (2d) 98, [2002] I.L.R. I-4096, 25 M.P.L.R. (3d) 1, 19 M.V.R. (4th) 308, 110 A.C.W.S. (3d) 460 (C.A.); Babineau v. Ontario (Lieutenant Governor), [2009] O.J. No. 4230, 2009 ONSC 55370 (Div. Ct.); Bal v. Ontario (Attorney General), 1994 CarswellOnt 164 (S.C.J.); Bracken v. Niagara Parks Police, [2016] O.J. No. 5115, 2016 ONSC 5615 (S.C.J.); [page42 ] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 SCC 646, [1999] 3 S.C.R. 868, [1999] S.C.J. No. 73, 181 D.L.R. (4th) 385, 249 N.R. 45, [2000] 1 W.W.R. 565, J.E. 2000-43, 131 B.C.A.C. 280, 70 B.C.L.R. (3d) 215, 47 M.V.R. (3d) 167, REJB 1999-15531, 36 C.H.R.R. D/129, 93 A.C.W.S. (3d) 524; Campbell Soup Co. v. Ontario (Farm Products Marketing Board) (1977), 1977 ONCA 1857, 16 O.R. (2d) 256, [1977] O.J. No. 432, 77 D.L.R. (3d) 725 (C.A.), affg (1975), 1975 ONSC 582, 10 O.R. (2d) 405, [1975] O.J. No. 2501, 63 D.L.R. (3d) 401 (H.C.J.); Canada Post Corp. v. C.U.P.W. (1989), 1989 ONSC 4337, 70 O.R. (2d) 394, [1989] O.J. No. 1583, 62 D.L.R. (4th) 724, 38 Admin. L.R. 305, 17 A.C.W.S. (3d) 528 (H.C.J.); Canadian Federation of Students v. Greater Vancouver Transportation Authority, [2009] 2 S.C.R. 295, [2009] S.C.J. No. 31, 2009 SCC 31, 192 C.R.R. (2d) 336, 309 D.L.R. (4th) 277, 272 B.C.A.C. 29, [2009] 8 W.W.R. 385, 93 B.C.L.R. (4th) 1, EYB 2009-161351, J.E. 2009-1320, 389 N.R. 98, 179 A.C.W.S. (3d) 98; Canadians for Language Fairness v. Ottawa (City), [2006] O.J. No. 3969 (S.C.J.); Danson v. Ontario (Attorney General), 1990 SCC 93, [1990] 2 S.C.R. 1086, [1990] S.C.J. No. 92, 73 D.L.R. (4th) 686, 112 N.R. 362, 41 O.A.C. 250, 43 C.P.C. (2d) 165, 50 C.R.R. 59, 23 A.C.W.S. (3d) 25, affg (1987), 1987 ONCA 4068, 60 O.R. (2d) 676, [1987] O.J. No. 887, 41 D.L.R. (4th) 129, 22 O.A.C. 38, 19 C.P.C. (2d) 249, 41 C.R.R. 48, 5 A.C.W.S. (3d) 313 (C.A.); Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213, [2000] O.T.C. 541, 99 A.C.W.S. (3d) 426 (S.C.J.); Joshi v. Ontario (Minister of Health and Long-Term Care) (2015), 125 O.R. (3d) 384, [2015] O.J. No. 964, 2015 ONSC 1001, 331 O.A.C. 191, 250 A.C.W.S. (3d) 701 (Div. Ct.); Lawlor v. Ontario (Licence Suspension Appeal Board) (1989), 68 O.R. (2d) 761, [1989] O.J. No. 678, 35 O.A.C. 88, 14 M.V.R. (2d) 287, 15 A.C.W.S. (3d) 195 (Div. Ct.); MacLennan v. Ontario (Minister of Transportation) (2014), 121 O.R. (3d) 134, [2014] O.J. No. 2873, 2014 ONSC 2946, 313 C.R.R. (2d) 57, 66 M.V.R. (6th) 122, 323 O.A.C. 27, 241 A.C.W.S. (3d) 572 (Div. Ct.); N. (J.) v. Durham (Regional Municipality) Police Service, [2012] O.J. No. 2809, 2012 ONCA 428, 262 C.R.R. (2d) 86, 294 O.A.C. 56, 284 C.C.C. (3d) 500, 101 W.C.B. (2d) 318; Ontario v. Gratton-Masuy Environmental Technologies Inc. (2010), 101 O.R. (3d) 321, [2010] O.J. No. 2935, 2010 ONCA 501, 269 O.A.C. 279, 91 C.L.R. (3d) 19, 76 C.C.L.T. (3d) 1, 7 Admin. L.R. (5th) 260, 321 D.L.R. (4th) 25, 191 A.C.W.S. (3d) 72; Service Employees International Union, Local 204 and Broadway Manor Nursing Home (Re) (1984), 1984 ONCA 2112, 48 O.R. (2d) 225, [1984] O.J. No. 3360, 13 D.L.R. (4th) 220, 5 O.A.C. 371, 12 C.R.R. 86, 28 A.C.W.S. (2d) 39 (C.A.); Vann Media Inc. v. Oakville (Town) (2008), 95 O.R. (3d) 252, [2008] O.J. No. 4567, 2008 ONCA 752, 271 O.A.C. 370, 311 D.L.R. (4th) 556, 54 M.P.L.R. (4th) 1, 180 A.C.W.S. (3d) 161; Yuan v. Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, [2014] O.J. No. 420, 2014 ONSC 351, 316 O.A.C. 272, 300 C.R.R. (2d) 1 (Div. Ct.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 15(1), 24, (1) Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52, (1) Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11(2) [as am.], 97 [as am.], 110 Highway Traffic Act, R.S.O. 1990, c. H.8 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1 [as am.], 2(1), 6(1), 7

Rules and regulations referred to

Drivers' Licences, O. Reg. 340/94 [as am.], s. 18(3), (a) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14.05, (3) (d), (g.1), (h), 20.04(2.1), (2.2), 38.10(1) (b), (2)

MOTION for an order transferring an application to the Divisional Court. [page43 ]

Counsel:

Neil G. Wilson, for applicant/responding party. Hart Schwartz, for respondent/moving party.

[1] BELOBABA J.: — Can a litigant challenge the constitutional validity of subordinate legislation such as a provincial regulation by bringing an application under rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in Superior Court or is she required to proceed by way of an application for judicial review in the Divisional Court?

[2] The applicant argues that a rule 14.05 application in Superior Court has long been accepted as a proper procedure for a declaratory remedy where one's Charter 1 rights have allegedly been breached by a provincial regulation. The respondent Attorney General of Ontario says the applicant is in the "wrong court" and brings this motion under s. 110 of the Courts of Justice Act 2 to transfer the application to the Divisional Court. The AG says that an application challenging the constitutionality of a provincial regulation is an application for judicial review and falls within the exclusive jurisdiction of the Divisional Court under s. 6(1) of the Judicial Review Procedure Act 3 ("JRPA").

[3] In my view, the applicant is not in the "wrong court". The Superior Court of Justice as a court of general jurisdiction has long granted the declaration that is sought herein (that an impugned regulation is inconsistent with the Charter and is thus of no force or effect under s. 52(1) of the Constitution Act) 4 and has done so either in an action or by way of a rule 14.05 application. The fact that the Divisional Court on occasion has done this as well under the JRPA is not contested in this case and, in any event, is a matter that is best addressed by the Divisional Court. But the existence of a possible parallel route by way of judicial review does not nullify the Superior Court's well-established jurisdiction to hear a Charter-based constitutional challenge to subordinate legislation by way of a rule 14.05 application. Nor is it enough to require that this rule 14.05 application proceed as an application for judicial review.

[4] For the reasons set out below, the AG's motion to transfer the matter to Divisional Court is dismissed. [page44 ]

Background

[5] Liliana Di Cienzo was a bus driver with Oakville Transit. She held a Class C licence which allowed her to drive a bus with passengers. She loved her job and had an exemplary driving record. Unfortunately, Ms. Di Cienzo lost one eye to cancer. Her Class C licence was automatically revoked under the provincial Drivers' Licences Regulation 5 which requires Class C licensees to have a prescribed level of "visual acuity" in "both eyes". 6 A monocular driver can never satisfy this requirement.

[6] Ms. Di Cienzo still has a Class G licence and drives her own vehicle on a regular basis but she can no longer work as a city bus driver. She believes that she can drive a bus as safely as, or even more safely than, a person with two eyes. However, the vision standards in the Regulation preclude any individualized assessment of Liliana's actual ability to drive. This was confirmed in a letter to Ms. Di Cienzo's counsel by the minister's delegate who advised that "since the requirements are mandatory, the Ministry has no discretionary authority to issue a licence to any individual who does not meet the legislated mandatory visual requirements".

[7] Encouraged by a decision of the Supreme Court that suggests that vision standards for driving which do not permit individualized assessments are discriminatory, 7 Ms. Di Cienzo brings this application under rule 14.05 for a declaration that s. 18(3) of the impugned Regulation violates s. 15(1) of the Charter (discrimination on the basis of physical disability) and is unconstitutional and of no force or effect under s. 52 of the Constitution Act.

[8] Counsel for Ms. Di Cienzo says "it is too early to determine the extent to which facts will be in dispute" but should this happen, the procedure in Superior Court (directing a trial of an issue, etc.) is better suited, he says, to hearing this constitutional challenge.

[9] The AG argues that the application challenges the "exercise of a statutory power" to "make a regulation" and must therefore be heard by a three-judge panel in Divisional Court. Ms. Di Cienzo responds that she is not challenging the exercise of any statutory power to make a regulation -- that is, she is [page45 ]not saying the Regulation is ultra vires the enabling statute. She is challenging s. 18(3) of the Regulation itself on the ground that it is contrary to the Charter and thus unconstitutional. Therefore, says Ms. Di Cienzo, this is not an application for judicial review. And even if it is, adds the applicant, this court can hear this matter as it has many times in the past and should not exercise its discretion to transfer the matter to the Divisional Court.

[10] I agree with Ms. Di Cienzo. The AG's motion to transfer this application to the Divisional Court is dismissed.

Analysis

(1) The jurisdiction of the Superior Court

[11] As the Court of Appeal noted in Gratton-Masuy, 8 the jurisdiction of the Superior Court under ss. 11(2) and 97 of the Courts of Justice Act 9 to make "binding declarations of right" and to exercise the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario is "beyond controversy". 10

[12] A "binding declaration of right" with regard to the constitutional validity of a regulation 11 has routinely been obtained in the Superior Court by way of an action 12 or by way of an application under rule 14.05, most often under sub-part (3)(h). [page46 ]For example, in Danson, 13 a case involving a Charter-based challenge of subordinate legislation (a controversial costs Rule), the Court of Appeal asked whether a Charter challenge can be launched by an application [under rule 14.05(3)(h)] as opposed to the institution of an action and answered, "Manifestly it can . . . it is up to the judge hearing the application to [decide] the application or direct a trial of an issue . . .". 14 On appeal, the Supreme Court concluded that the matter could not proceed by way of application because the applicant had failed to present evidence "that the effects of the impugned Rules violate provisions of the Charter". 15 But nowhere in the Supreme Court's decision was it ever suggested that a Charter-based challenge to subordinate legislation could not proceed by way of a rule 14.05 application.

[13] Over the decades, judges of this court have often heard rule 14.05 applications for declarations that impugned regulations or by-laws were constitutionally invalid and of no force and effect. 16 Indeed, this long-standing practice was explicitly acknowledged by the Divisional Court itself. In Falkiner, 17 Borins J., sitting as a judge in the Divisional Court said this:

Declarations of unconstitutionality on Charter grounds . . . are for the most part, obtained from a court of original jurisdiction -- a trial court -- by way of action, or, where material facts are not in dispute, by way of application under rule 14.05 . . . 18

[14] I pause here to note that it is rule 14.05(3)(h), the "no material facts in dispute" sub-part, that seems to be the most appropriate in cases (such as this) where the declaration seeks [page47 ]a finding that a regulation is of no force and effect under s. 52 of the Constitution Act.

[15] The other two possibilities, rules 14.05(3)(d) and 14.05(3)(g.1), are not really available. Rule 14.05(3)(d), to determine rights "that depend on the interpretation of a . . . regulation", does not assist where the applicant is not asking for a clarification or interpretation of the regulation in question but that it be declared of no force and effect. Rule 14.05(3)(g.1), available if one is seeking a remedy under s. 24 of the Charter, has been judicially limited in recent years to remedies relating to government actions not laws. 19 That is, remedies relating to the validity of legislation must be pursued under s. 52 of the Constitution Act.

[16] In sum, as Borins J. noted in Falkiner, 20 it is rule 14.05(3)(h) that makes the most sense for constitutional challenges that seek a declaration of invalidity under s. 52 of the Constitution Act. If it turns out that material facts are indeed in dispute, the application judge can direct the trial of an issue under rule 38.10(1)(b) or convert the entire application into an action under rule 38.10(2). This is the advantage that a Superior Court judge has over her counterparts on a Divisional Court panel. Neither of these directions is available if the same application is brought in Divisional Court.

(2) The jurisdiction of the Divisional Court

[17] The Divisional Court, a branch of the Superior Court, is a statutory court and, for our purposes herein, only has the jurisdiction conferred by the JRPA. 21

[18] Put simply, and again only for our purposes here, the JRPA requires that "applications for judicial review" must be heard by the Divisional Court. 22 Applications for mandamus, prohibition and certiorari are "deemed" to be applications for judicial review and must always proceed in Divisional Court. 23 Applications for declarations or injunctions must be heard in Divisional Court only if they relate to the "exercise of [page48 ]a statutory power", 24 which is defined to mean, among other things, "a power or right conferred by or under a statute, to make [a] regulation". 25

(3) The exercise of a statutory power to make a regulation

[19] The AG submits that Ms. Di Cienzo is seeking a declaratory remedy in relation to a statutory power to "make a regulation" and is thus an application for judicial review that must proceed in Divisional Court. Ms. Di Cienzo, as I have already noted, insists that she is not challenging the exercise of any statutory power to make a regulation -- that is, she is not saying the Regulation is ultra vires the enabling statute. Rather, she is saying that s. 18(3) of the Regulation, although otherwise validly enacted (or made) is contrary to the Charter and thus unconstitutional. Therefore, says Ms. Di Cienzo, this is not an application for judicial review.

[20] It appears that the Divisional Court itself agrees with Ms. Di Cienzo. In Falkiner, 26 Borins J., as he then was, concluded that the Divisional Court can hear an ultra vires challenge to a regulation, possibly a Charter-based challenge if it is coupled with an ultra vires challenge, but not a pure Charter-based challenge. In other words, a constitutional challenge to an otherwise validly enacted regulation because it violates the Charter and should be set aside under s. 52 of the Constitution Act is not a challenge that questions the exercise of a statutory power to "make a regulation". It is a challenge that focuses on the constitutional validity of a regulation that has already been made.

[21] It is worth quoting Borins J. at length:

While I am satisfied that the ultra vires issue is properly before the Divisional Court under s. 2(1) and s. 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J-1, because it is based on the power to make regulations granted . . . to the Lieutenant Governor in Council . . . [page49 ]

. . . [I am concerned] whether the Charter challenge is properly before the Divisional Court. . . .

The applicants have sought a remedy under s. 24(1) of the Charter on the ground that the Regulations adversely affect their Charter rights, guaranteed by ss. 7 and 15(1), which requires that this be proved. If this had been the only application before the court, and had it not been joined with the application for judicial review on the ultra vires issue, there is no doubt that [the Divisional Court] would not have been a court of competent jurisdiction to grant a s. 24(1) Charter remedy . . . The Divisional Court is a creature of statute. Its jurisdiction in respect to applications for judicial review comes from s. 2(1), clause 2, and s. 6 of the Judicial Review Procedure Act. Its appellate jurisdiction comes from s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and from a number of statutes, such as s.15 of the Family Benefits Act. Declarations of unconstitutionality on Charter grounds . . . are for the most part, obtained from a court of original jurisdiction -- a trial court -- by way of action, or, where material facts are not in dispute, by way of application under rule 14.05 of the Rules of Civil Procedure [.]

Because there is nothing unconstitutional about the enabling legislation, it is the subordinate legislation per se which has been attacked on Charter grounds. I have difficulty in placing this in s. 2(1), clause 2 of the Judicial Review Procedure Act. It seems to me that this is a direct constitutional attack on the subordinate legislation, brought under s. 24(1) of the Charter, and, as such, should be before a trial court. Stated differently, neither s. 2(1), clause 2 and s. 6 of the Judicial Review Procedure Act, nor s. 19 of the Courts of Justice Act, which are the principal sources of the jurisdiction of the Divisional Court, empower it to hear what is really a rule 14.05 application, or an action, which must be heard by a trial court. 27

[22] Justice Borins' analysis is directly on point.

[23] The AG attempts to diminish the force of this analysis by arguing that these comments are obiter and by making much of the fact that Borins J. proceeded on the basis that the remedy being sought was a remedy under s. 24(1) of the Charter rather than a remedy under s. 52 of the Constitution Act. In 1996, when Falkiner was decided, the Supreme Court had not yet articulated the now-accepted distinction between these two provisions.

[24] It was only in 2008 in Ferguson 28 that the Supreme Court explained that s. 24(1) of the Charter and s. 52 of the Constitution Act serve "different remedial purposes" 29 -- that s. 24(1) provides a remedy for "government acts" that violate Charter rights and s. 52 provides a remedy for "laws that violate Charter [page50 ] rights". 30 This post-Falkiner demarcation of the different remedies under ss. 24(1) and 52 does nothing to undermine Justice Borins' basic point that the Divisional Court is a statutory court whose jurisdiction is delimited by the precise language in the JRPA and that it makes sense to confine this jurisdiction accordingly.

(4) Why Justice Borins was right in Falkiner

[25] Even if Justice Borins' ruminations as a Divisional Court judge in Falkiner are obiter, it is compelling obiter that provides a sensible roadmap for the resolution of the issue that is presented on this motion. Ms. Di Cienzo wants to proceed by way of a rule 14.05 application because, at least initially, it is faster and less costly than an application for judicial review. She knows she runs the risk that there may be facts in dispute and her application may require the trial of an issue or may even be converted into an action but she is willing to take that risk.

[26] The use of a rule 14.05 application in the Superior Court for a declaratory remedy challenging the constitutional validity of statutes and regulations that have allegedly violated the applicant's Charter rights is a long-established and judicially accepted practice. If the AG is right and all of the applications relating to the constitutional validity of subordinate legislation must now go to the Divisional Court as applications for judicial review, then the plain language of the JRPA will be distorted, a long-standing practice will be arbitrarily discontinued and litigants such as Ms. Di Cienzo will be denied their right to cost-effective access to justice.

[27] It also does not make much sense to simply exchange one summary procedure for another. Let me explain. It is beyond dispute that this court can always hear an action for the declaration in question. If the application pathway under rule 14.05 is no longer available, litigants that prefer proceeding in Superior Court will simply file an action for a declaration and then bring a motion for summary judgment, which under rules 20.04(2.1) and (2.2) allows judges in this court to exercise enhanced adjudicative powers and conduct mini-trials. In other words, the summary (rule 14.05) application procedure will just be replaced with a summary action procedure. And to what end?

[28] Much better, in my view, to carry on with the current practice -- allow rule 14.05 applications for declarations that challenge the constitutional validity of subordinate legislation [page51 ]and judicially confine the (plain) meaning of "make a regulation" in the JRPA to cases where the litigation is seeking a declaration that the impugned regulation is ultra vires the authority of the enabling statute. Or at most, as Borins J. noted in Falkiner, to cases where the litigant is seeking a declaration that involves both an ultra vires claim and a Charter-breach claim.

[29] The only qualification that I would add is the one that was voiced by Doherty J. as he then was in Canada Post v. C.U.P.W. 31 and repeated by the Court of Appeal in N. (J.) v. Durham (Regional Municipality) Police Service 32 -- the court should consider the substance of the claim and not be fooled by its form. That is, the rule 14.05 procedure should not be available where it is readily apparent on all of the facts and circumstances that "the substance of [the] claim is for judicial review of the administrative decision of a public statutory body". 33

[30] Here, of course, no such finding can be made. Ms. Di Cienzo is not in substance challenging an administrative decision because, as already noted, no such decision was made. She is challenging the constitutionality of the impugned Regulation by way of a rule 14.05 application, as she is entitled to do.

Conclusion

[31] There is no good reason in law or policy to change a long-established practice. In my view, litigants can continue to use a rule 14.05(3)(h) application for a declaration that subordinate legislation is unconstitutional and of no force and effect under s. 52 of the Constitution Act. If it turns out that material facts are in dispute and a trial of an issue or even a full trial is needed, then a judge of this court will no doubt make the appropriate direction. The fact that similar applications are occasionally proceeding in Divisional Court as applications for judicial review 34 [page52 ]is not being contested by Ms. Di Cienzo and, in any event, is an issue that should best be addressed by the Divisional Court.

Disposition

[32] This application is not in the "wrong court". The motion to transfer the matter to the Divisional Court is dismissed.

[33] The parties have agreed on costs. There is no need for a costs award.

[34] I am obliged to counsel for the quality of their advocacy and for their overall assistance.

Motion dismissed.

Notes

1 Canadian Charter of Rights and Freedoms.

2 Courts of Justice Act, R.S.O. 1990, c. C.43.

3 Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

4 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

5 O. Reg. 340/94, enacted under the Highway Traffic Act, R.S.O. 1990, c. H.8.

6 Ibid., s. 18(3)(a).

7 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 SCC 646, [1999] 3 S.C.R. 868, [1999] S.C.J. No. 73.

8 Ontario v. Gratton-Masuy Environmental Technologies Inc. (2010), 2010 ONCA 501, 101 O.R. (3d) 321, [2010] O.J. No. 2935 (C.A.).

9 Supra, note 2.

10 Supra, note 8, at para. 61. Also see MacLennan v. Ontario (Minister of Transportation) (2014), 2014 ONSC 2946, 121 O.R. (3d) 134, [2014] O.J. No. 2873 (Div. Ct.), at para. 8: "As a Superior Court of general jurisdiction, the Superior Court, as the successor to the Supreme Court of Ontario aehas all the powers that are necessary to do justice between the parties' unless it is specifically limited, the jurisdiction of the Court in substantive law in civil matters is unlimited."

11 The jurisdiction of the Superior Court to hear an action or an application challenging the constitutional validity of a statute (as opposed to a regulation) is not in dispute. The enactment of a statute does not involve "the exercise of a statutory power" and therefore does not fall within the arguable reach of the JRPA. See Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213, [2000] O.T.C. 541 (S.C.J.), at paras. 11-12: "It is common ground that Charter challenges simpliciter fall within the jurisdiction of the Superior Courts and within Rule 14.05."

12 Campbell Soup Co. v. Ontario (Farm Products Marketing Board) (1975), 1975 ONSC 582, 10 O.R. (2d) 405, [1975] O.J. No. 2501 (H.C.J.), at para. 115, affd (1977), 1977 ONCA 1857, 16 O.R. (2d) 256 (C.A.); cited with approval in Gratton-Massey, supra, note 8, at para. 61.

13 Danson v. Ontario (Attorney General) (1987), 1987 ONCA 4068, 60 O.R. (2d) 676, [1987] O.J. No. 887 (C.A.).

14 Ibid., at para. 10 (emphasis added).

15 Danson v. Ontario (Attorney General), 1990 SCC 93, [1990] 2 S.C.R. 1086, [1990] S.C.J. No. 92, at para. 33.

16 See, for example, Bal v. Ontario (Attorney General), 1994 CarswellOnt 164 (S.C.J.); Allstate Insurance Co. of Canada v. Toronto (City) (2001), 2001 ONCA 21180, 57 O.R. (3d) 191, [2001] O.J. No. 4776 (C.A.); Canadians for Language Fairness v. Ottawa (City), [2006] O.J. No. 3969 (S.C.J.); Vann Media Inc. v. Oakville (Town) (2008), 95 O.R. (3d) 252, [2008] O.J. No. 4567, 2008 ONCA 752; and Bracken v. Niagara Parks Police, [2016] O.J. No. 5115, 2016 ONSC 5615 (S.C.J.).

17 Falkiner v. Ontario (Ministry of Community and Social Services), 1996 ONSCDC 12495, [1996] O.J. No. 3737, 140 D.L.R. (4th) 115 (Gen. Div.).

18 Ibid., at para. 128.

19 Discussed in more detail below.

20 Supra, note 17.

21 Service Employees International Union, Local 204 and Broadway Manor Nursing Home (Re) (1984), 1984 ONCA 2112, 48 O.R. (2d) 225, [1984] O.J. No. 3360 (C.A.), at para. 18.

22 JRPA, supra, note 3, s. 6(1).

23 Ibid., s. 7.

24 Ibid., s. 2(1).

25 Ibid., s. 1. The definition of "statutory power" also includes the power or right conferred under a statute to exercise a "statutory power of decision". Here, however, there was no exercise of any statutory power of decision. The revocation of Ms. Di Cienzo's Class C licence under the impugned regulation was automatic as soon as she lost an eye and was unable to satisfy the vision requirements. The AG agrees that no judicially reviewable decision was made. See Lawlor v. Ontario (Licence Suspension Appeal Board) (1989), 1989 ONSC 4191, 68 O.R. (2d) 761, [1989] O.J. No. 678 (Div. Ct.).

26 Supra, note 17.

27 Ibid., at paras. 111, 128 and 129 (emphasis added).

28 R v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6. Also see Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2009 SCC 31, [2009] 2 S.C.R. 295, [2009] S.C.J. No. 31, at para. 87.

29 Ferguson, supra, note 28, at para. 61.

30 Ibid. [emphasis in original].

31 Canada Post Corp. v. C.U.P.W. (1989), 1989 ONSC 4337, 70 O.R. (2d) 394, [1989] O.J. No. 1583 (H.C.J.).

32 N. (J.) v. Durham (Regional Municipality) Police Service, [2012] O.J. No. 2809, 2012 ONCA 428.

33 Ibid., at para. 16 (emphasis added).

34 See, for example, Joshi v. Ontario (Minister of Health and Long-Term Care) (2015), 125 O.R. (3d) 384, [2015] O.J. No. 964, 2015 ONSC 1001 (Div. Ct.); Yuan v. Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, [2014] O.J. No. 420, 2014 ONSC 351 (Div. Ct.); MacLennan v. Ontario (Minister of Transportation), supra.; and Babineau v. Ontario (Lieutenant Governor), [2009] O.J. No. 4230, 2009 ONSC 55370 (Div. Ct.).

End of Document