In Which Ontario Court Do I Bring My Constitutional Challenge?

"Can a litigant challenge the constitutional validity of subordinate legislation such as a provincial regulation by bringing an application under Rule 14.05 in Superior Court or is she required to proceed by way of an application for judicial review in the Divisional Court?" Justice Belobaba says "Yes" in Di Cienzo v. Attorney General of Ontario.1

Background

Ms. Di Cienzo was a bus driver. Her bus license was automatically revoked pursuant to Ontario Drivers' License Regulation after she lost one eye to cancer. She believed she could drive a bus as safely as a person with two eyes. Relying on Supreme Court precedent,2 she challenged the constitutionality of the regulation, arguing that it discriminated on the basis of physical disability contrary to s. 15(1) of the Charter.

Ms. Di Cienzo brought an application in the Ontario Superior Court pursuant to rule 14.05(3) of the Rules of Civil Procedure,3 which permits a proceeding to be commenced by Notice of Application in enumerated circumstances including where the relief claimed is "(h) in respect of any matter where it is unlikely that there will be any material facts in dispute."

The Attorney General of Ontario took the position that her application should have been brought in the Divisional Court, relying on the Judicial Review Procedure Act.4 The JRPA provides that (with certain exceptions), an application for judicial review shall be made to the Divisional Court.5 An "application for judicial review" includes proceedings for a declaration in relation to the exercise of a statutory power.6 A statutory power includes a power or right conferred by or under a statute to make subordinate legislation, including regulations.7 The AG argued that the application challenged the "exercise of a statutory power" to "make a regulation" such that it should be heard by a three-judge panel of the Divisional Court.

After canvassing the law on the jurisdiction of the Superior Court and Divisional Court and the jurisprudence, Justice Belobaba concluded that the AG was wrong. Ms. Di Cienzo was in the right Court.

Implications

As Belobaba J. observed, the use of rule 14.05 applications in Superior Court for constitutional challenges to the validity of statutes and regulations is a "long established and judicially accepted practice."8 The advantages of a Superior Court application include the potential for savings in time and expense. As Belobaba J. observed, rule 14.05 applications are at least initially...