Wednesday, June 27, 2012

A decision not affecting the legal rights, interests, property, privileges or liberty of any person is not amenable to judicial review

PC Ontario Fund v. Essensa, 2012 ONCA 453 deals with judicial review of an electoral officer with duty to report to a provincial government. The Court found the officer's decisions were not subject to judicial review:

[12]       When he dealt with the appellants' allegations involving the WFC, the CEO's decision not to report the complaint to the Attorney General did not decide or determine any legal rights. The CEO's treatment of the complaint made by the appellants may well have had significant political consequences. However, it did not amount to a decision affecting the legal rights, interests, property, privileges or liberty of any person or party. It was not, therefore, a decision amenable to review under the traditional prerogative writs and it did not amount to the exercise of a "statutory power of decision" within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1 and 2(1). From a legal perspective, the CEO's decision was analogous to that of a police officer refusing to lay a charge or a crown attorney declining to prosecute a case on the ground that there is no reasonable prospect of a successful prosecution. The appellants' plea to afford the EFA a "purposive interpretation" that would make the decision susceptible to judicial review amounts to a plea to create a different statutory regime, and that we cannot do.

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