COURT FILE NO.: CV-19-006190760000
CV-15-539225
DATE: 20191023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAURA WILLIAMS, in her capacity as estate trustee of the ESTATE OF MARK WILLIAMS
Applicant (Responding Party)
- and –
TRILLIUM GIFT OF LIFE NETWORK and UNIVERSITY HEALTH NETWORK
Respondents (Moving Parties)
AND BETWEEN:
DEBRA SELKIRK and the ESTATE OF MARK SELKIRK
Applicants (Responding Parties)
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTRY OF HEALTH AND LONG TERM CARE, UNIVERSITY HEALTH NETWORK and TRILLIUM GIFT OF LIFE NETWORK
Respondents (Moving Parties)
A. Tomkins and M.-P. Dupont, for the Responding Party Laura Williams in her capacity as estate trustee of the Estate of Mark Williams
E. Krajewska and L. Crowell, for the Moving Parties Trillium Gift of Life Network and University Health Network
No one appearing for Debra Selkirk and the Estate of Mark Selkirk
No one appearing for Her Majesty the Queen in Right of Ontario
HEARD: July 23, 2019
REASONS FOR DECISION
SCHRECK J.:
[1] The Trillium Gift of Life Network (“Trillium”) is responsible for establishing waiting lists for individuals requiring organ transplants from deceased donors. In establishing such a list for individuals requiring liver transplants, it has created criteria denying placement on the waiting list to certain individuals requiring a transplant because of an alcohol-related liver disease (“ALD”).
[2] The Trillium criteria do not apply to liver transplants from a living donor. However, the only hospital that performs such transplants, the University Health Network (“UHN”), has adopted Trillium’s criteria with respect to individuals suffering from ALD.
[3] Mark Williams and Mark Selkirk both suffered from ALD and required transplants. Neither obtained a transplant and both died as a result of their illnesses. Their estates have commenced applications for a declaration that the criteria created by Trillium and adopted by UHN violate s. 15(1) of the Canadian Charter of Rights and Freedoms.
[4] The Respondents Trillium and UHN have brought two motions: (1) UHN moves, pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure, to have the application against it dismissed on the basis that the Charter does not apply to it; and (2) Trillium moves pursuant to s. 110(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) to have the application transferred to the Divisional Court.
[5] For the reasons that follow, both motions are dismissed.
I. FACTUAL CONTEXT
A. Trillium and Post Mortem Transplants
[6] The liver is a critical organ which the human body uses to filter blood and detoxify the body. An individual whose liver fails to function properly will die unless he or she can obtain a new liver through a transplant. Transplants can be either inter vivos, that is, from a living donor, or post mortem, that is, from a deceased donor. In Ontario, post mortem transplants are done at either the London Health Sciences Centre (“LHSC”) or the University Health Network (“UHN”) in Toronto. Inter vivos transplants are only done at UHN.
[7] Unfortunately, the number of individuals requiring transplants significantly exceeds the number of donors. In order to ensure that organs are distributed fairly, the Ontario government enacted the Trillium Gift of Life Network Act, R.S.O. 1990 c. H.20 (“TGLNA”). Section 2 of the TGLNA provides that all transplants in Ontario may only be done in accordance with the Act. Section 8.7 of the TGLNA created the Trillium Gift of Life Network and s. 8.8 gave it several objectives, including “to establish and manage waiting lists for the transplant of tissue and to establish and manage a system to fairly allocate tissue that is available”.
[8] Trillium has established a waitlist for post mortem liver transplants based on a number of pre-determined criteria and algorithms designed to ensure that livers are distributed primarily on the basis of acute need and not a “first come, first served” basis. The waitlist is primarily based on the “Adult Referral and Listing Criteria for Liver Transplant” (“the Listing Criteria”). One of the criteria is that an individual who requires a liver because of ALD must not have consumed alcohol in the six months prior to his or her placement on the list. In 2017, Trillium established a three‑year pilot project for individuals with ALD who are excluded under the Listing Criteria. Such patients are assessed by a physician according to special criteria established under the Pilot Project. If those criteria are met, the patient is placed on the waitlist together with all other patients.
B. UHN and Inter Vivos Transplants
[9] Trillium has not established a waitlist or criteria for inter vivos transplants as those typically involve directed donations from the patient’s family members or friends. However, UHN, the only facility at which inter vivos transplants are performed, has adopted the Listing Criteria and will only perform an inter vivos transplant where those criteria are met. The decision to adopt the Listing Criteria was made by UHN’s Multi-Organ Transplant Team and not by Trillium.
C. The Applications
(i) The Williams Application
[10] Mark Williams required a liver transplant due to ALD but was ineligible to be placed on the waitlist because he failed to meet the Listing Criteria or the Pilot Project criteria because of his consumption of alcohol. His mother and litigation guardian, Laura Williams, commenced an application pursuant to Rule 14.05(3)(g.1) of the Rules of Civil Procedure challenging the constitutional validity of both sets of criteria on the basis that they violated Mr. Williams’s rights guaranteed by ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms. Mr. Williams died as a result of his illness on May 14, 2019 and the application has been continued by his estate. The relief sought is a declaration pursuant to the Constitution Act, 1982[^1] that the Listing Criteria and the Pilot Project Criteria are of no force or effect to the extent that they infringed the applicant’s s. 7 and s. 15(1) Charter rights.
(ii) The Selkirk Application
[11] Mark Selkirk also required a liver transplant due to ALD and was also ineligible to be placed on the waitlist. His wife, Debra Selkirk, offered to provide part of her liver, but UHN would not perform the transplant because he failed to meet the Listing Criteria. Mr. Selkirk died as a result of his illness on November 24, 2010. Mrs. Selkirk and his estate commenced an application pursuant to Rule 14.05(3)(g.1) of the Rules of Civil Procedure seeking a s. 52(1) declaration that the Listing Criteria created by Trillium and adopted by UHN are of no force or effect on the basis that they infringe ss. 7, 12 and 15(1) of the Charter. In addition to Trillium and UHN, Mrs. Selkirk also named the Ontario Ministry of Health and Long Term Care as a respondent.[^2]
II. THE MOTION TO DISMISS
A. Rule 21.01(1)(a) of the Rules of Civil Procedure
[12] UHN moves pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure to have the application against it dismissed on the basis that the Charter does not apply to its decision to apply the Listing Criteria to inter vivos donation candidates. According to UHN, the application of the Listing Criteria was a “clinical decision” and not state action.
[13] Rule 21.01(1)(a) provides as follows:
21.01 (1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs;
While this is not an action, Rule 21 applies to applications, although “some degree of caution must be exercised when applying a pleadings-oriented rule, such as Rule 21.01, to a notice of application, making due allowance for the different requirements mandated for the content of those different originating processes”: Barbra Schlifer Commemorative Clinic v. Canada (Attorney General), 2012 ONSC 5271, at para. 41.
[14] The test to be applied on a motion such as this is whether the correct determination of the question of law in issue is “plain and obvious”, that is, that there is “no reasonable prospect” that the issue will be determined against the moving party: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; Transamerica Life Inc. v. ING Canada Inc. (2003), 2003 CanLII 9923 (ON CA), 68 O.R. (3d) 457 (C.A.), at paras. 36-37.
B. Does the Charter Apply to UHN?
(i) [Section 32](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[15] Section 32(1)(b) of the Charter makes it clear that it only applies to the “the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” It does not apply to private entities: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at paras. 34-35. The Charter may apply, however, where an otherwise private entity is acting in furtherance of a specific governmental program or policy: McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at pp. 273-274. As noted in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 42, “[t]he factors that might serve to ground a finding that an activity engaged in by a private entity is ‘governmental’ in nature do not readily admit of any a priori elucidation.” This is especially true of cases involving hospitals.
[16] UHN submits that its decision to adopt the Listing Criteria did not involve the implementation of any sort of government policy. It relies on Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC), [1990] 3 S.C.R. 483, where it was held that a hospital’s decision to impose a mandatory retirement age on physicians was an internal policy decision to which the Charter did not apply.
(ii) Determining When a Private Entity’s Activity is “Governmental”
[17] The approach to take in determining whether a private entity’s activity is “governmental” in nature was described in Eldridge, at para 44:
… [A]n entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.
[18] The issue in Eldridge was whether the Charter applied to a hospital’s decision not to provide sign language interpreters for deaf patients. The Court held that when hospitals provide medical services to the public, they are carrying out a specific governmental objective created by the Canada Health Act and provincial legislation to provide a full range of medical services to the public. As a result, the Charter applied to the hospital’s failure to provide sign language interpreters (at para. 51):
Unlike Stoffman, then, in the present case there is a “direct and . . . precisely-defined connection” between a specific government policy and the hospital’s impugned conduct. The alleged discrimination -- the failure to provide sign language interpretation -- is intimately connected to the medical service delivery system instituted by the legislation. The provision of these services is not simply a matter of internal hospital management; it is an expression of government policy. Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act. The Legislature, upon defining its objective as guaranteeing access to a range of medical services, cannot evade its obligations under s. 15(1) of the Charter to provide those services without discrimination by appointing hospitals to carry out that objective. In so far as they do so, hospitals must conform with the Charter.
[19] In my view, it is neither plain nor obvious that the provision of an inter vivos liver transplant is not as much a part of the delivery of health care services as is the provision of sign language interpreters. There is authority strongly suggesting that it is. In Flora v. Ontario Health Insurance Plan (General Manager) (2007), 2007 CanLII 339 (ON SCDC), 83 O.R. (3d) 721 (Div. Ct.) (aff’d without reference to this point 2008 ONCA 538, 91 O.R. (3d) 412), the Divisional Court considered a challenge to the Ontario Health Insurance Plan’s (“OHIP”) decision not to fund an inter vivos liver transplant that the applicant had paid for in England after an Ontario Hospital had refused to perform the procedure because as in this case, the applicant failed to meet the hospital’s criteria. In considering OHIP’s argument that the Charter did not apply to the hospital’s decision not to perform the transplant, Epstein J. (as she then was) stated (at para. 166):
I do not accept Ms. Minor’s argument that the Charter is not engaged because there has been no government action. Even if it could be said that the core of Mr. Flora’s problem is not OHIP’s decision, but rather the physicians’ decision that Mr. Flora was not eligible for a LRLT [living-related liver transplant], there is still an element of state action that attracts Charter scrutiny. It is true that the Regulation does not mandate the denial of the treatment to Mr. Flora, but only tracks medical policy, making funding for out-of-country treatment a function of medical practise in Ontario. But, as per Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, the government is not permitted to shield itself from constitutional review by hiding behind its private delegates or the algorithms that determine its policies on the basis of what private actors do. The Regulation tracks medical policy and adopts it as government policy for the purpose of funding treatment. Because accepted medical practice is adopted as government policy for this purpose, the Regulation is permitted to track medical policy only within the bounds of the Constitution.
(iii) Other Authorities Relied Upon By UHN
[20] UHN also relies on Canadian Blood Services v. Freeman, 2010 ONSC 4885, 217 C.R.R. (2d) 153, at para. 367, where it was held that the Charter did not apply to Canadian Blood Services’ (“CBS”) decision not to accept blood donations from gay men. In my view, this decision does not assist UHN. The Court in Canadian Blood Services concluded that there was no government policy or program aimed at potential blood donors. The Court was not concerned with a government policy to provide health care to the public. Had the challenge been to a decision not to provide blood to individuals in an allegedly discriminatory manner, I suspect the result may well have been different.
[21] UHN also relies on Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500, 105 O.R. (3d) 761, at para. 90, aff’d 2011 ONCA 482, 107 O.R. (3d) 9 and McKitty (Litigation guardian of) v. Hayani, 2018 ONSC 4015, at paras. 223-224, aff’d 2019 ONCA 805, at para. 48, where it was held that the Charter does not apply to clinical decisions made by individual physicians. However, it is not at all clear on this record whether the decision to refuse to provide Mr. Selkirk with an inter vivos transplant was a clinical decision by an individual physician. It would seem, rather, that it was the result of the application of a hospital policy. In any event, Mr. Selkirk is now deceased and the challenge is not to the decision made with respect to him, but rather to the policy as a whole. In these circumstances, it is far from “plain and obvious” that the Charter does not apply.
[22] For these reasons, the motion to dismiss the application against UHN is dismissed.
III. THE MOTION TO TRANSFER TO DIVISIONAL COURT
A. The [Judicial Review Procedure Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-j1/latest/rso-1990-c-j1.html)
[23] Trillium moves pursuant to s. 110(1) of the CJA to have this application transferred to the Divisional Court on the basis that it involves a review of the exercise of a statutory power and that the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) requires that such reviews be heard in the Divisional Court.
[24] Trillium relies on several sections of the JRPA. Section 2(1) 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:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
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.
[25] The term “statutory power” is defined in s. 1 of the JRPA:
“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; (“compétence légale”)
Section 1 also defines an application made under s. 2(1) as an “application for judicial review”.
[26] While s. 2(1) refers to applications for judicial review being made to a “court”, s. 6 of the JRPA specifies that subject to specified exceptions, the application must be made to the Divisional Court:
6 (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court.
(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
(3) Where a judge refuses leave for an application under subsection (2), he or she may order that the application be transferred to the Divisional Court.
B. The Divisional Court
[27] The Ontario Divisional Court was created in 1970 as a result of recommendations made in the Report of the Royal Commission of Inquiry into Civil Rights conducted by Chief Justice McRuer of the Ontario High Court. It now exists by virtue of s. 18 of the CJA, which also specifies the composition of the Divisional Court:
18 (1) The branch of the Superior Court of Justice known as the Divisional Court is continued under the name Divisional Court in English and Cour divisionnaire in French.
(2) The Divisional Court consists of the Chief Justice of the Superior Court of Justice, who is president of the Divisional Court, the associate chief justice and such other judges as the Chief Justice designates from time to time.
(3) Every judge of the Superior Court of Justice is also a judge of the Divisional Court.
[28] While s. 18 of the CJA describes the Divisional Court as a “branch of the Superior Court of Justice” and the Divisional Court is composed of judges of the Superior Court of Justice, it is nonetheless a statutory court without inherent jurisdiction: Chramer et al. v. The Queen (1974), 1974 CanLII 629 (ON SC), 3 O.R. (2d) 602 (Div. Ct.); Grand River Enterprises v. Burnham (2005), 2005 CanLII 6368 (ON CA), 197 O.A.C. 168 (C.A.), at para. 19; Opara v. Law Society of Upper Canada, 2015 ONSC 3348 (Div. Ct.), at para. 11; Ontario (Attorney General) v. Hanif, 2013 ONSC 6991 (Div. Ct.), at para. 31; Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213 (S.C.J.), at para. 12; Riad v. Ontario College of Pharmacists, 2015 ONSC 6736, at para. 43; Marlatt v. Woolley (2000), 129 O.A.C. 328 (Div. Ct.), at para. 2; Adams v. Canada (Attorney General), 2011 ONSC 325, 22 Admin L.R. (5th) 351 (Div. Ct.), at para. 22; Sgrignuoli v. Sgrignuoli Estate, 2017 ONSC 65, at para. 36; Chowdhury v. Knight (2005), 198 O.A.C. 56 (Div. Ct.), at para. 3.
C. The Basis for the Motion to Transfer
[29] Trillium submits that it created the Listing Criteria and the Pilot Project criteria pursuant to s. 8.8 of the TGLNA and that this was the exercise of a “statutory power” as defined in s. 1 of the JRPA. The challenge to the criteria therefore involves the exercise of a statutory power, in particular the power granted to Trillium by s. 8.8 of the TGLNA. Since the Applicants are seeking a declaration in relation to the exercise of a statutory power, their application is of the type described in s. 2 of the JRPA and is therefore “an application for judicial review” as defined in s. 1. As a result, s. 6 of the JRPA requires that it be brought in the Divisional Court.
[30] Trillium relies on a number of authorities, including Alford v. Law Society of Upper Canada, 2018 ONSC 4269, J.N. v. Durham Regional Police Service, 2012 ONCA 428, 284 C.C.C. (3d) 500, The Christian Medical and Dental Society of Canada v. Colleges of Physicians and Surgeons of Ontario, 2018 ONSC 579, 140 O.R. (3d) 742 (Div. Ct.), and Canada Post Corp. v. C.U.P.W. (1989), 1989 CanLII 4337 (ON SC), 70 O.R. (2d) 394 (H.C.).
D. The Nature of the Relief Sought
(i) [Section 52(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Constitution Act, 1982](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[31] The only relief being sought in these applications is a declaration pursuant to s. 52(1) of the Constitution Act, 1982. In Di Cienzo v Attorney General of Ontario, 2017 ONSC 1351, 138 O.R. (3d) 41, on which Ms. Williams relies, Belobaba J. held that while applications for this type of remedy can be heard in the Divisional Court, the Superior Court nonetheless maintains jurisdiction in such matters. In declining to transfer an application challenging a provincial regulation on constitutional grounds to the Divisional Court, Belobaba J. stated (at para. 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 of Rights and is thus of no force or effect under s. 52(1) of the Constitution Act) 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.
[32] Belobaba J. relied on the decision of Borins J. (as he then was), writing for a majority of the Divisional Court in Falkiner v. Ontario (Ministry of Community and Social Services) (1996), 1996 CanLII 12495 (ON SCDC), 140 D.L.R. (4th) 115 (Ont. Div. Ct.), another case involving a challenge to a regulation. In that case, Borins J. stated (at para. 128):
My second concern is whether the Charter challenge is properly before the Divisional Court. As I have indicated, this is not a case in which it is sought to have legislation declared unconstitutional pursuant to the supremacy clause, s. 52 of the Constitution Act, 1982. 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 this 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, consequent to an application for a remedy under s. 24(1) of the Charter 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. For a recent example of an application for a declaration that certain federal legislation violated the applicants’ s. 15 Charter rights which was heard by a motions court judge, see Schafer v. Canada (Attorney General) (1996), 1996 CanLII 8150 (ON SC), 135 D.L.R. (4th) 707 (Ont. Ct. (Gen. Div.)). In other words, absent a request for a declaratory remedy ancillary to an application for judicial review the Divisional Court has not been granted the power to grant a declaratory judgment. [Citations omitted].
(ii) The Superior Court’s Inherent Power to Grant Constitutional Remedies
[33] The animating principle in Di Cienzo and, to some extent, Falkiner is that the inherent power of the Superior Court to grant a Charter remedy cannot be ousted by statute, so the JRPA cannot be read as doing so. There is a well-established body of caselaw supporting the proposition that the Superior Court’s inherent jurisdiction to hear and decide Charter issues are “part of the supreme law of Canada” and “cannot be strictly limited by statutes or rules of the common law”: Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 50-51; R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 892; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 84; Canada (Attorney General) v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, at pp. 326-329. Yet according to Trillium, this is what s. 6 of the JRPA seemingly purports to do. It ousts the jurisdiction of the Superior Court to grant a remedy and transfer it to the Divisional Court. As noted earlier, the Divisional Court is a statutory court “having no inherent jurisdiction such as is vested in each individual Judge of the [Superior Court]”: Chramer, at p. 602; Marlatt v. Woolley, at para. 2.
[34] Trillium relies on J.N. v. Durham (Regional Municipality) Police Service, where the Court held (at para. 16):
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), 1989 CanLII 4337 (ON SC), 70 O.R. (2d) 394 (H.C.J.), at pp. 397-398; Koumoudouros v. Municipality of Metropolitan Toronto (1982), 1982 CanLII 1839 (ON SC), 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.
The Court went on to hold that the fact that Charter issues had been raised did not alter the conclusion that the matter was an application for judicial review (at para. 21):
That J.N. sought to raise Charter issues in support of her arguments that the decisions should be quashed does not alter these factors. Many administrative decisions invoke Charter considerations, which are dealt with in the context of the judicial review process. In Ontario, there is a legislative scheme for the review of administrative decisions, and it is not permissible to circumvent that process by dressing up what is, in substance, a review of a decision of an administrative tribunal as a rule 14.05 application. In essence, that is what occurred here.
[35] I note that Di Cienzo was decided after J.N. and makes reference to it (at para. 29). Clearly, Belobaba J. was of the view that J.N. did not stand for the proposition that the Superior Court’s jurisdiction to grant a s. 52(1) constitutional can be ousted by the JRPA. I am of the same view. The applicant in J.N. did not seek a s. 52(1) declaration. Rather, she sought an equitable remedy pursuant to s. 96(3) of the CJA., as is clear from the judgment of the application judge that was later reversed by the Court of Appeal: J.N. v. Durham (Regional Municipality) Police Service, 2011 ONSC 2892, 106 O.R. (3d) 346, rev’d supra. Unlike in J.N., the applicants in this case are doing more than “raising Charter issues in support of their arguments”. They are seeking a constitutional remedy.
[36] None of the cases relied on by Trillium involved a simple constitutional challenge seeking a s. 52(1) remedy unaccompanied by requests for other remedies. For example, in Alford, Favreau J. specifically noted that “the application is not uniquely or even primarily a Charter challenge”: Alford, at para. 41. Similarly, in Christian Medical and Dental Society of Canada, the applicants sought “various relief, including declarations, prohibition and mandamus”: Christian Medical and Dental Society of Canada, at paras. 37, 46-47. Canada Post Corp. did not involve a constitutional challenge.
[37] The only case that seemingly supports Trillium’s position that the Superior Court has no jurisdiction to grant a Charter remedy in cases involving a challenge to the exercise of a statutory power is Koumoudouros v. Municipality of Metropolitan Toronto (1982), 1982 CanLII 1839 (ON SC), 37 O.R. (2d) 656 (H.C.), which is cited in J.N. and other cases. In that case, an application for a remedy pursuant to s. 24(1) of the Charter was transferred to the Divisional Court on the basis that it was essentially an application for judicial review. However, Koumoudoros was decided approximately a month and a half after the enactment of the Charter and long before the decisions in Mills and the other cases cited earlier which state that the Superior Court’s jurisdiction to grant a Charter remedy cannot be ousted. While Komoudouros has been relied upon in other cases, this has only been with respect to the proposition that applications for judicial review should be heard by the Divisional Court and not in relation to the issue of the Superior Court’s inherent jurisdiction to grant constitutional relief: J.N., at para. 16; Canada Post Corp., at p. 398.
E. [Section 8](https://www.canlii.org/en/on/laws/stat/rso-1990-c-j1/latest/rso-1990-c-j1.html) of the [JRPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-j1/latest/rso-1990-c-j1.html)
(i) The Nature of the Applications
[38] There is an additional reason why I would not transfer these applications to the Divisional Court. The applications name both Trillium and UHN as respondents. UHN was clearly not exercising a statutory power when it decided to adopt the Listing Criteria, so the Divisional Court has no jurisdiction to hear the Charter challenge to UHN’s actions. If the application for a declaration against Trillium is transferred to the Divisional Court, there will be two separate proceedings. This would be undesirable for several reasons, including the increased cost and the possibility of inconsistent results. Of course, that would not matter if this Court did not have jurisdiction to hear the application against Trillium: J.N., at para. 25; Christian Medical and Dental Society of Canada, at para. 42. However, in my view this Court does have jurisdiction for the reasons explained earlier as well as the following reasons.
(ii) The Proper Basis For the Motion
[39] Trillium has brought this motion pursuant to s. 110 of the CJA, which gives the court the power to transfer a proceeding “before the wrong court” to “the proper court.” However, in my view it is more properly characterized as a motion brought pursuant to s. 8 of the JRPA, which provides as follows:
- Where an action for a declaration or injunction, or both, whether with or without a claim for other relief, is brought and the exercise, refusal to exercise or proposed or purported exercise of a statutory power is an issue in the action, a judge of the Superior Court of Justice may on the application of any party to the action, if he or she considers it appropriate, direct that the action be treated and disposed of summarily, in so far as it relates to the exercise, refusal to exercise or proposed or purported exercise of such power, as if it were an application for judicial review and may order that the hearing on such issue be transferred to the Divisional Court or may grant leave for it to be disposed of in accordance with subsection 6 (2).
While s. 8 refers to an action, there is precedent for the section being applied in the context of a motion to have a Rule 14 application transferred to the Divisional Court in Silveira v. Ontario (Minister of Transportation), 2011 ONSC 4272, aff’d 2012 ONSC 3328 (Div. Ct.).
(iii) The Discretionary Nature of the Decision
[40] Silveira involved a Rule 14 application challenging the vires of road maintenance standards that had been created by a municipality. The issue first arose in the context of a negligence action and the case management judge, Lauwers J. (as he then was) had determined that the issue should be considered separately by way of a Rule 14 application. The Crown (as represented by the Ministry of Transportation) then brought a motion to have the application transferred to the Divisional Court pursuant to s. 8 of the JRPA on the basis that it involved the review of a statutory power and should therefore be in the Divisional Court by virtue of ss. 2(1) and 6(1) of the JRPA. The Crown relied on a number of authorities, including Canada Post Corp. and Koumoudouros.
[41] Notwithstanding that there was no issue that the application involved a statutory power, Lauwers J. dismissed the Crown’s application. In his view, the power to transfer the matter to the Divisional Court that was created by s. 8 of the JRPA was discretionary (at para. 22):
… [A] determination of the suitability of the forum is at the heart of the exercise of a judge’s discretion under section 8 of the JRPA. That determination must take account of the context of the legal dispute and the particular facts of the case.
[42] Lauwers J. distinguished Canada Post Corp. and Koumoudoros on the following basis (at para. 16):
I find the cases on which the Crown relies to be distinguishable. They were all free-standing applications for declarations of invalidity brought to a single judge of the Superior Court. In none of them was a broader civil proceeding in play as there is in this case, where the outcome could be affected by the ruling in the application.
[43] The Crown’s appeal to the Divisional Court was dismissed (at paras. 19-22):
If section 8 was applicable to the related action, it was open to the motion judge, if he considered it “appropriate”, to direct that the action, or that part of it involving the validity of the MMS, be treated and disposed of summarily “as if it were an application for judicial review” and that it be transferred to the Divisional Court with respect to the issue regarding the exercise of a statutory power sought by the plaintiffs.
The repeated inclusion of the permissive “may” in section 8 (3 times), the inclusion of “if he or she considers it appropriate” and the total absence of the mandatory “shall” are clear indications that all of the powers conferred were intended to be permissive and that it was within the motion judge’s discretion whether or not to order a transfer. It is of particular significance that the section provides that even though a judge considers it appropriate that an action be treated as if it were an application for judicial review, his or her power to order a transfer to the Divisional Court is stated using “may” and not “shall” as one would otherwise expect.
It follows, nevertheless, that, whether or not section 8 was applicable, it was in the motion judge’s discretion whether or not to direct that the issue in this application be transferred to the Divisional Court and he determined, both when he made his original order and when he made the order in appeal, that it should not.
The motion judge’s reasons for refusing to order a transfer reflect the careful consideration that he gave to the issue before him before concluding that the procedure that he directed was in the interests of justice. In particular, he strove to take an approach that was “practical and pragmatic”, that would minimize the likelihood of “procedural detours” and that would serve to better enable him to carry out his duty as the case management judge pursuant to rule 37.15 (1).
[44] In this case, the review of Trillium’s exercise of a statutory power is part of a broader proceeding that also involves a challenge to UHN’s policy. In my view, it would not be “practical and pragmatic” to bifurcate the proceedings, nor would it be in the interests of justice to do so.
IV. DISPOSITION
[45] The motion pursuant to Rule 21.01(1)(a) to dismiss the application against UHN and the motion pursuant to s. 110(1) of the CJA to transfer the application against Trillium to the Divisional Court are both dismissed.
[46] Neither party sought costs and none are ordered.
Schreck J.
Released: October 23, 2019.
COURT FILE NO.: CV-19-006190760000
CV-15-539225
DATE: 20191023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAURA WILLIAMS, in her capacity as estate trustee of the ESTATE OF MARK WILLIAMS
Applicants (Responding Party)
- and –
TRILLIUM GIFT OF LIFE NETWORK and UNIVERSITY HEALTH NETWORK
Respondents (Moving Parties)
AND BETWEEN:
DEBRA SELKIRK and the ESTATE OF MARK SELKIRK
Applicants (Responding Parties)
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTRY OF HEALTH AND LONG TERM CARE, UNIVERSITY HEALTH NETWORK and TRILLIUM GIFT OF LIFE NETWORK
Respondents (Moving Parties)
REASONS FOR DECISION
Schreck J.
Released: October 23, 2019.
[^1]: Being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11.
[^2]: Mrs. Selkirk and Mr. Selkirk’s estate did not participate in the hearing of this motion, but I was advised that they support the position taken by Ms. Williams. The Ministry of Health and Long Term Care did not participate but supports the position taken by Trillium.