Friday, December 13, 2013

Jurisdiction for judicial review

Setia v. Appleby College, 2013 ONCA 753:

[32]       In my view the jurisdiction to make an order for judicial review quashing the expulsion decision does not depend on whether the decision is the exercise of a statutory power of decision.  Rather, the jurisdiction provided by s. 2(1)1 of the JRPA turns on whether the expulsion decision is the kind of decision that is reached by public law and therefore a decision to which a public law remedy can be applied.  This reflects the purpose of the JRPA, namely to provide a simplified process to obtain public law remedies in those circumstances where public law applies. 

[33]       The assessment of whether a particular decision is subject to public law and its remedies requires a careful consideration of the relevant circumstances of the particular case informed by the experience of the caselaw.  I agree with the approach of Stratas J.A. in Air Canada v. Toronto Port Authority, 2011 FCA 347.  He said this at para. 60:

There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law.  Whether or not any one factor or a combination of particular factors tips the balance and makes a matter "public" depends on the facts of the case and the overall impression registered upon the Court.

[34]       In his very helpful reasons, Stratas J.A., at para. 60, described a number of relevant factors disclosed by the case law:

·        the character of the matter for which review is sought;

·        the nature of the decision-maker and its responsibilities;

·        the extent to which a decision is founded in and shaped by law as opposed to private discretion;

·        the body's relationship to other statutory schemes or other parts of government;

·        the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;

·        the suitability of public law remedies;

·        the existence of a compulsory power;

·        an "exceptional" category of cases where the conduct has attained a serious public dimension.


Ernest Julius Guiste said...

I like this thinking very much.
It is consistent with my own.

Ernest Julius Guiste said...

No I misunderstood the point. I do not like....