Call Off The Funeral Ontario Divisional Court Revives True Questions Of Jurisdiction In Judicial Review

Over the last decade, Canadian Courts have struggled with the issue of when to apply the less deferential standard of review of "correctness" in the review of administrative tribunal decisions.

In a 2018 decision, Canada (Canadian Human Rights Commission) v. Canada (AG), 2018 SCC 31, the Supreme Court of Canada recognized that where a tribunal interprets its home statute, the Court presumptively applies the deferential standard of review of reasonableness, subject to four exceptions. One of these four exceptions occurs where the question under review raises a "true question of vires or jurisdiction".

True Questions of Vires Were On "Life Support"

The problem was that no Canadian Court, including the Supreme Court of Canada, was been able to identify a true question of jurisdiction attracting correctness review. The concept remained elusive. Canadian Courts were reluctant to re-introduce ambiguous concepts such as "true questions jurisdiction or vires" that once plagued administrative law prior to the leading decision on standard of review, Dunsmuir v. New Brunswick, 2008 SCC 9.

As Justice Gascon observed in Canada (Canadian Human Rights Commission), the very existence of "true questions of jurisdiction" as a recognized category attracting correctness review was on "life support":

The reality is that true questions of jurisdiction have been on life support...No majority of this Court has recognized a single example of a true question of vires, and the existence of this category has long been doubted. Absent full submissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will only reiterate this Court's prior statement that it will be for future litigants to establish either that the category remains necessary or that the time has come, in the words of Binnie J., to "euthanize the issue" once and for all...

Ontario Divisional Court Identifies a True Question of Vires

Despite the Supreme Court of Canada's tolling of the death knell on true questions of jurisdiction, a recent decision of the Ontario Divisional Court, Fabrikant v. Law Society of Ontario, 2018 ONSC 7393, has breathed new life into this legal concept.

Fabrikant involved, amongst other things, an application for judicial review of a decision of the Complaints Resolution Commissioner (the "Commissioner") of the Law Society of Ontario.

As the Divisional Court characterized it, the Commissioner declined to exercise...