Divided Success: Revisiting Ontario’s Divisional Court

Author: Douglas Montgomery

Institutional structures of judicial review balance a constellation of values: the protection of individual rights, the efficient functioning of government, and the jurisdictional delineation between the judiciary and executive.

To that end, the Divisional Court of Ontario occupies a unique role in Canada. It has been almost fifty years since the Court was proposed as the structural response to challenges in balancing these values. As a statutory court of intermediate appellate power, it fills a niche between the trial-level Superior Court and appellate-level Court of Appeal, serving as the main venue for the adjudication of judicial reviews and some statutory appeals. The primary objective of the Court, as framed by its propounders, was to provide an avenue for the enforcement of individual rights in the face of a growing administrative state.

The Divisional Court, as a generalist court of review, was to draw its legitimacy in scrutinizing highly specialized decisions of tribunals and boards from cultivating a public law expertise. However, the jurisdiction of the Court has since expanded to include judicial appeals from a large breadth of areas of law, including family, class actions, small claims, estates and construction. Not only has the jurisdiction of the Court changed, but external pressures have altered the nature of judicial review in Ontario: increasing focus on access to justice, evolving models of the rule of law, and advances in the administration of justice have all exerted new pressures on courts to update and reassert their significance.

As a result, it is unsurprising that some commentators have called the history of the Divisional Court “chequered”.[1] In light of these developments, can the existence of Divisional Court continue to be justified? In answering this question, I will begin with a brief survey of the Court’s origins, including its objectives and underpinnings, following which I will roughly trace the modern-day jurisdictional boundaries of the Court. I will then present a survey of the Court’s reported decisions from the 2015 calendar year in order to assess the current workload and nature of decisions being made. Finally, I will contextualize this contemporary reality of the Court within a broader understanding of recent trends in institutional structures of judicial review to assess the continued relevance of the Court.   

Relying on theoretical and empirical justifications, I conclude that the Divisional Court remains a conceptually relevant piece of the structure of judicial review in Ontario. Despite this, slow but aggregating developments threaten to undercut the effectiveness of the Court in its day-to-day operations. Most notably, the increasing complexity of the Court’s statutory responsibilities add an unnecessary layer of confusion and expense that is counterproductive to the efficient administration of justice.

1. History of the Divisional Court

I. Origins and Underpinnings

Throughout the early 1960s, increasing calls were made for a comprehensive review of the state of civil rights, particularly as a result of a police corruption scandal,[2]. As a result, the Progressive Conservative government of John Robarts established The Royal Commission Inquiry into Civil Rights through an Order-in-Council on May 21, 1964. Robarts tapped John Chalmers McRuer, then Chief Justice of the High Court of Ontario, to lead an inquiry into how an evolving administrative state interacted with the “civil liberties, human rights, fundamental freedoms and privileges of the individual inherent in citizenship.”[3]

McRuer’s broad mandate required an examination of how public action and inaction, particularly those of administrative decision-makers, resulted in legal implications for the individual.[4] To that end, the Commission was charged with an expansive review of state-individual relations, encompassing research, study and inquiry:

… into the laws of Ontario including the statutes and regulations passed thereunder affecting personal freedoms, rights and liberties of Canadian citizens and others resident in Ontario for the purpose of determining how far there may be unjustified encroachment on those freedoms, rights and liberties by the Legislature, the Government, its officers and servants, divisions of Provincial Public Service, boards, commissions, committees, other emanations of government or bodies exercising authority under or administering the laws in Ontario.

After four years of study and countless interviews, the final Report recommended a number of procedural safeguards that sought to strengthen rule of law values while imposing a check on arbitrary government decision making.[5] In McRuer’s words, “four objectives should be borne in mind: adequate protection of the rights of the individual, simple and inexpensive procedure, early finality of decision, and a minimum of interference with the processes of government.”[6]

At the time the Report was drafted, rights of appeal from tribunals were, to phrase it kindly, inconsistent and varied. Not only could an appeal variously lie to a county judge, a judge of the Supreme Court, or the Court of Appeal, in some cases there was simply no appeal at all.[7] There was no discernible or predictable framework establishing and governing rights of appeal.[8] Instead, applications for judicial review in Toronto were heard during the “Weekly Court”, where up to 50-60 motions were heard in a day by a Court exercising jurisdiction over motions, tribunal appeals, judicial review, and matters related to the construction of wills, contracts and statutes.[9]

An appeal from tribunals and agencies to regular courts, McRuer argued, was “the best safeguard for the rights of the individual and one that should be vigilantly protected.”[10] The solution was glaringly obvious: a single forum that could provide the relief offered by public law remedies without technical complexities and without the debate on jurisdiction and scope, resulting in a prompt decision on the merits accessed through a simple procedure.[11]  

But what would serve as that single forum? The 10-member Court of Appeal, McRuer determined, would be unsuitable. To bestow such a burden on the Court of Appeal would require an enlargement given the Court of Appeal was already working beyond capacity. But simply increasing the number of judges on the Court of Appeal was not an option; that would unacceptably “dilute the quality of the judges of the Court of Appeal and depreciate the prestige and authority of the court.”[12]

Instead, McRuer argued in favour of the establishment of an intermediate appeal court: a three-judge Appellate Division of the High Court of Justice for Ontario that would make final decisions on matters related to the exercise of public power.[13] The right to appeal a decision of the proposed Appellate Division to the Court of Appeal would be limited to questions where “important questions of law” were involved.[14]

Having a group of judges designated to hear public law matters would ensure that the bench would develop “special expertise” in this branch of law. The guarantee of public law expertise would be impossible if applications were made for review to “any one of the twenty-five judges of the High Court.”[15] Further, expense and delay would be reduced through simplified routes of appeal and the certainty as to the appropriate venue for review.[16]

In McRuer’s view, the scope of the new court was to include:[17]

• All applications for judicial review in the first instances
• All appeals by way of stated case, whether from administrative tribunals or from justices of the peace
• All appeals from administrative tribunals, including all of the self-governing bodies…
• All appeals from judgments of judges of the county and district courts and the surrogate courts exercising a compulsory jurisdiction
• All appeals from the Master of the Supreme Court except decisions in minor interlocutory matters

The recommendation to create an intermediate appellate court is just one of the dozens of wide-ranging proposals brought forward by the Commission. Though the proposal for an intermediate appellate court did not receive significant critique, the general approach adopted by McRuer resulted in considerable commentary. Roderick MacDonald has noted that McRuer’s overall approach reflected a legalistic response to issues in contemporary governance:

He focused on a single way of imagining law (statutory rules); a single way of imagining legal decision-making (adversarial adjudication): a single institution for ensuring substantive and procedural accountability (courts); and a single process for ensuring respect for the rule of law (judicial review).[18]

Indeed, the underlying premise of McRuer’s work seems to have taken the public interest as being wholly synonymous with the protection of the individual and their rights.[19] To that end, the rights and liabilities for each person were to be spelled out in legislation, and enforced by the courts.[20] On a practical level, the convenience to the applicant was considered paramount, as evidenced by McRuer’s repeated focus on ensuring minimal delay and expense in applications for judicial review.[21]

This represented an almost wholesale adoption of rule of law approached espoused by the English lawyer A.V. Dicey. Under Dicey’s model, anything less than the rule of independent courts and the full panoply of court procedure would undermine individual rights. Similarly, for McRuer, the supervisory role of courts in reviewing decisions would have three salutary effects: court oversight promoted consistency in the jurisprudence, fostered uniformity of practice, and exercised a strong “disciplinary effect” on tribunals.[22] This was particularly important since tribunals, as creatures of government, were likely to develop bias in favour of the government.[23]

John Willis, one of the fiercest critics of McRuer’s reforms, dismissed this legalistic approach as the manifestation of “lawyer’s values”. In Willis’ view, the recommendations developed by McRuer failed to take into account what was actually happening on the ground – the so-called functional approach that focused more on “civil servant values”. Under the functional approach, the administrative justice system should be designed so that legislative objectives could be advanced with limited emphasis on court-like procedures as the primary method of dispute resolution.[24]

Though Willis’ position may seem to preclude a judicial structure of review such the proposed Appellate Division, Willis’ views on such a court were complex. At times he advocated for the elimination of judicial review altogether.[25] At other times, however, he did seem to recognize some need for the oversight of courts in limited circumstances. Thus, his “ambivalence” on judicial review resulted in a pragmatic position that favoured a specialized administrative court that would exercise review over administrative decision-makers, displacing review of a mere generalist court.[26] This was particularly true for any reform that would result in the simplification of the judicial review process.[27]

Though the ideological gap between Willis and McRuer on the nature and scope of judicial review has been called “canyonesque”,[28] Willis praised the creation of an expert, three-judge court as an “excellent suggestion”.[29] Willis’ greatest concern with court-driven oversight, namely that non-expert generalist review would produce random results in comparison with the expert and context-driven analyses of decision-makers,[30] was assuaged with the form of the proposed Divisional Court. With a small rotation of judges sitting, the Court would represent an authorized and specialized court of public law would likely result in minimal inappropriate interference with the merits of tribunal decisions.[31]

II. Legislative Action

Given the support, or perhaps simply the lack of opposition, to this specialized court, it is unsurprising that the legislative process leading to the enactment of the Divisional Court was uncontroversial. Now in receipt of the Report, the “good government” Progressive Conservative administration of Premier John Robarts felt obliged to implement many of the considerable reforms proposed by the Report.[32] This included the creation of the Divisional Court in 1970’s Bill 183, An Act to amend the Judicature Act.

The Attorney General in the Robarts government, Arthur Wishart, emphasized only two benefits of the new court in introducing the Bill in the Provincial Parliament. First, the Minister argued that an intermediate court of appeal would allow the Court of Appeal to devote itself to “fundamental and important matters” which were “not receiving as much attention presently as [was] desirable”. The second benefit was that an intermediate appellate court, made up of High Court judges, would allow High Court judges to gain experience as appellant judges, assisting them in their functions as trial judges.[33] No tribute was paid to the key structural benefits of the Court, or how such a specialized court could improve the process of judicial review for both litigants and the judicial system as a whole.

On Second Reading, the bill faced little opposition from the parties across the aisle. The Liberal opposition noted that the idea of a divisional court had considerable merit and indicated that they would support the Bill.[34] Any concerns of the Liberals seemed to relate primarily to intra-judicial politics, asking whether:

…three judges of the divisional court might perhaps have some qualms about overruling in appeal their brothers in the Supreme Court, with whom at one time, they may be sitting in judgement as trial judges and at another time they may be sitting as divisional court judges… if a divisional court lands fairly loudly on a judge of the Supreme Court in overruling him, the hour might change and the day might change, and the judge who has just been overruled may in the following month be a member of that divisional bench and choose to write a pretty strong opinion about/one of his brother judges when he is handling an appeal in that regard.[35]

The Attorney General gave no credence to that concern, instead arguing it would be unlikely that any judge should “take umbrage” or allow for such a ruling to affect their judgments.[36]

The New Democratic Party  (NDP) agreed with Justice McRuer’s rejection of an enlarged Court of Appeal. Courts, in the NDP’s view, must maintain as small a number of judges as possible, since a small number is necessary for these bodies to be “held in close organic unity and have a real interrelationship; the men know one another well over periods of time and are able to converse and reach a uniformity of judgment rather than have the court…partitioned.”[37] An intermediate appellate court would assuage such concerns.

The NDP’s Justice Critic, Patrick Lawlor,[38] provided the only thorough examination of the role of the proposed court vis-à-vis its public law mandate. After reviewing the current patchwork of statutory appeals, Mr. Lawlor argued that the new court, in addition to providing a quicker, cheaper resolution:

…sort of overrides the mess, comes in obliquely from the side, and it says, “Gentlemen, we will give you another means, we will give you another road, whereby all these appeals – appeals on stated cases, appeals on matters of form, appeals having to do with prerogative writs and the judicial view general, those having to do with practice and procedure, basically, appeals from administrative tribunals of all kinds – can go to this new appellate jurisdiction that we have set up”. …[It] gives expedition and efficiency to the law, which is what it is crying out for in this province….”[39]

Mr. Lawlor specifically rejected Professor Willis’ critique of McRuer’s approach, saying he was ready “to concede to the judges a far greater measure of sagacity, of rapport with contemporary conditions and of living with the people, than Professor Willis apparently is prepared to do.”[40]

At Third Reading, on October 29, 1970, it was noted that amendments from the Committee had been included in the draft.[41] The Bill was subsequently passed and received Royal Assent on November 13, 1970.

The legislative debate, which was particularly scant on key substantive questions, would suggest that the creation of the Divisional Court was one of the more uncontroversial recommendations that emerged from the McRuer Report. All three speakers on the subject in the legislature, themselves lawyers, adopted its proposed role and function without serious objection. The prevailing view, common to all parties, seemed to be that this new Court would enhance the efficiency and responsiveness of the justice system in Ontario. Particularly when taken together with the contemporaneous sweeping reforms, such as the Statutory Powers Procedure Act and the Civil Rights Statute Law Amendment Act, the legislative action in response to the recommendations of the McRuer Report represented a seismic shift in judicial review and individual rights in administrative decision-making in Ontario. 

2. Mapping Jurisdictional Borders

Though the Divisional Court is branch of the Superior Court, Ontario’s court of inherent jurisdiction, the Divisional Court itself has no inherent jurisdiction and therefore must ground its authority in power conferred to it by statute. Thus, the mechanics and jurisdictional boundaries of the Court can be primarily identified, and modified, through statute.

I. Composition and Sittings

Nominally, the Divisional Court consists of the Chief Justice of the Superior Court of Justice (who serves as “president” of the Divisional Court), the Associate Chief Justice of the Superior Court, and “such other judges as the Chief Justice designates from time to time.”[42] Every judge of the Superior Court is also a judge of the Divisional Court,[43] meaning the Chief Justice is free to draw on the full bench of Superior Court judges to establish panels. This grant of discretion is a double-edged sword: the Chief Justice may use this discretion to ensure a small group of judges can develop sufficient expertise in public law through regular assignment to the Court, or concerns of judicial convenience and expediency could result in a continuous rotation of new judges.

Proceedings are heard and determined by a panel of three judges.[44] There are some instances where a proceeding is heard by one judge alone, including:

• A final order by a master or case management master;[45]
• An appeal from the final order of a Small Claims Court for the payment of money in excess of the prescribed amount (including recovery of property worth that amount);[46]  and,
• Where the Chief Justice, or an appropriately designated judge, is “satisfied, from the nature of the issues involved and the necessity for expedition, can and ought to be heard and determined by one judge”.[47]

Motions are also typically heard by a single judge, thought it is possible for the motions judge to adjourn the motion to a panel of the Divisional Court.[48] Decisions by a Divisional Court judge on a motion are subject to being set aside or varied by a full panel.[49]

An appeal to the Divisional Court is typically held where the hearing or process that led to the decision appealed from took place, subject to parties agreeing otherwise.[50] In practice, the Divisional Court sits in Toronto throughout the year (with reduced hours in summer), with each region outside of Toronto receiving 2-4 weeks of Divisional Court sittings per year.[51]

II. Authority to Hear Matters

The Divisional Court’s jurisdictional authority to resolve disputes cannot grow without some explicit foundation in statute. There are presently 142 statutes (excluding regulations) that engage the Divisional Court in some way.  This may include more general grants of power (through the Courts of Justice Act or the Judicial Review Procedures Act, for example), or specific grants of power (through a statute that gives rise to a discrete right or establishes a narrow right of appeal from a named decision-maker).

There are generally four categories of cases that may be properly heard by the Divisional Court. Those categories are: applications for judicial review, statutory appeals, judicial appeals, and other matters.

1. APPLICATIONS FOR JUDICIAL REVIEW

Section 2(1) of the Judicial Review Procedures Act provides the Divisional Court with the broad authority to deal with judicial review in two instances.

First, any proceeding by way of application for an order in the nature of mandamus, prohibition or certiorari is made to the Divisional Court [52] This statutory grant bestows the authority to issue the traditional public law prerogative writs.  The decision need not necessarily be made by a public body in order for the remedy of a prerogative to be available; instead, so long as the dispute is “coloured” by public law, this remedy will become available. As a result, acts and omissions by sports’ associations,[53] private schools,[54] student associations,[55] and political parties[56] have been found to be sufficiently “coloured” by a public character so as to warrant a public law remedy.

Second, any proceeding by way of action for a declaration or injunction, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power is also made to the Divisional Court.[57] In order for a person or agency to exercise a statutory power, there must be legislation that authorizes the decision-maker to make the specific decision in question.[58]

The Divisional Court may also hear applications for judicial review on an urgent basis. This occurs in instances where “the delay required for an application to the Divisional Court is likely to involve a failure of justice”.[59] In Toronto, such applications are brought before a single judge of the Divisional Court.[60]

Notably, availability of judicial review may be circumscribed by statute, either through restriction on availability of remedies or pre-requisites for a right to judicial review. For example, Ontario’s Human Rights Act states that:

… a decision of the [Human Rights] Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.[61]  

2. STATUTORY APPEALS

In addition to the broad jurisdiction conferred on the Divisional Court by the Judicial Review Procedures Act, various Ontario statutes confer specific rights of appeal for decisions of tribunals, committees, and other decision-makers to the Divisional Court. Some examples include decisions of a statutory decision-maker (for example, decisions by the Director of Titles appointed under the Land Titles Act, [62] the decisions of registration committees[63] or discipline committees[64] of professional self-regulated professions bodies, or the Registrar of the Business Names Act[65]), or in some instances, decisions of Ministers.[66]

Availability of a statutory appeal may likewise be limited by statute. For example, Ontario’s Residential Tenancies Act states that:

Any person affected by an order of the [Landlord and Tenant] Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.[67]

In this way, the legislature can enact specific constraints on the powers of the Divisional Court to interfere with determinations made by statutory decision-powers. When taken in tandem with a strong tendency to review on a highly deferential standard (explored more below in Section 4), the power of the Court on appeal and review may be significantly circumscribed. 

Though it seems intuitive that decisions taken by officials exercising a public function would lie to the Divisional Court, such is not always the case. For example, any person “who considers themselves aggrieved” by a decision taken by the chief building official or inspector under the Building Code Act must appeal the decision first the Superior Court of Justice.[68] That Superior Court decision is then appealable to the Divisional Court.[69]

In other cases, administrative decisions can skip the Divisional Court altogether. For example, the Association of Professional Engineers of Ontario may apply to the Superior Court under the Professional Engineers Act for a compliance order if there has been a contravention of the Act.[70] An appeal from that determination lies to the Court of Appeal.[71] Similarly, decisions made by electoral officials are reviewable only by the Superior Court and the Court of Appeal.[72]

3. JUDICIAL APPEALS

The Courts of Justice Act has provided general rights of appeal to the Divisional Court from a judicial decision in three instances:

1. Certain final orders of Superior Court judges.[73] These orders include any awards for a single payment of under $50,000 excluding costs (including periodic amounts not exceeding that amount) or dismissal of a claim for not more than $50,000.[74] This amount was raised from $25,000 in 2007.[75] Orders above $50,000 are appealed to the Court of Appeal.
2. An interlocutory order of a Superior Court judge, with leave.[76]
3. A final order of a master or case management master.[77]

In addition to these general rights of appeal, there are specific rights of appeal in several other instances, including:

• Family Law: Appeals of certain decisions from the Family Court are made the Divisional Court.[78]  The statutory provisions covered by this clause are extensive, including the Marriage Act, the Divorce Act, provisions of the Family Law Act (except determinations related to dependants’ claims for damages, which results in determinations made regarding property, support, and domestic contracts being appealed to the Divisional Court), the Children’s Law Reform Act (except the provisions related to the disposition of property), and the provisions of the Child and Family Services Act as they relate to child protection, extraordinary measures, and adoption.[79]
• Small Claims: The Divisional Court will hear appeals from the final order of Small Claims Court actions for the payment of money in excess of the prescribed amount (or the recovery of possession of personal property not exceeding that amount in value).[80] This amount is prescribed by regulation.[81]
• Class Proceedings: Since coming in to force on January 1, 1993, the Class Proceedings Act, 1992,[82] an order certifying or decertifying a class proceeding is appealed to the Divisional Court,[83] with leave.[84] A judgment itself on common issues is appealed directly to the Court of Appeal.[85] An order determining an individual claim awarding more than $3000 may be appealed by a class member, a representative plaintiff, or a defendant to the Divisional Court,[86] or with leave for under $3000.[87]

Otherwise, a number of statutes provide for rights of appeal to the Divisional Court in only specific instances. To give an example of the various types of judicial decisions reviewable by the Divisional Court, a decision of a Superior Court judge in matters related to “harsh and unconscionable” transactions may be appealed to the Divisional Court.[88] Similarly, a vendor or purchase of real or leasehold estate who has applied for relief to the Superior Court on questions related to the requisition or compensation connected with a contract for land transaction may appeal that decision to the Divisional Court.[89] An appeal also lies to the Divisional Court on Superior Court determinations of default under the Gas and Oil Leases Act.[90] Decisions by judge related to declarations of death are also appealed to the Divisional Court.[91] Determinations made by Superior Court judges taken under the Estates Act are also subject to an appeal to the Divisional Court.[92]

Judicial appeals represent an area of significant growth in the Divisional Court. In his 1982 paper examining the Divisional Court in its tenth year, R.F. Reid noted that only a few statutes provided for appeals from final decisions to the Divisional Court. In addition to extremely limited family matters, the Divisional Court’s role was limited to primarily hearing appeals of interlocutory decisions.[93] That stands in significant contrast to the much more expansive and patchwork jurisdiction of the Court today.

4. OTHER MATTERS

The Legislature has seen fit to use the Divisional Court as a convenient forum for a grab-bag of additional judicial functions. The result is a varied assortment of powers which defies specific categorization.

A commission that has been established under the Public Inquiries Act relies on the Divisional Court to resolve a variety of matters. On motion, a proceeding may be commenced at the Divisional Court for a person who acted in a way that in a court setting would be considered in contempt of that court, such as has failing to respond to being summoned or acts in an obstructionist way during questioning.[94] The scope of authority of a person or body appointed under the Act is also subject to review by the Divisional Court.[95] This is similar to the power bestowed upon the Court under the Statutory Powers Procedure Act.[96] The Divisional Court may also act as a reference Court for tribunals and boards.[97]

   The preceding review is by no means exhaustive, but only illustrative of the jagged and sometimes arbitrary boundaries of the Divisional Court. No coherent policy or guiding principle appears to have guided the statutory prescription of the Court’s powers jurisdiction of the Court. A wide variety of constraints across a number of statutes prescribe subject matter to be appealed, standards of review, and time limits for appeal. Broadly speaking, it is a safe bet that the first forum of judicial review of public action will be the Divisional Court. Yet legislative attempts to streamline review processes and reserve more serious appeals to the Court of Appeal has resulted in a complex and labyrinthine network of governing statute that shapes the borders of the Divisional Court’s power. 

3. A Year’s Labour: Snapshot of the Divisional Court

Statutory grants of authority elucidate the jurisdictional boundaries of the Courts, but what happens within the confines of those boundaries is less clear. The statutory framework does not tell us the frequency with which certain routes of appeal or review are traveled. Further, how the Court is actually staffed appears to change based on the exercise of the Chief Justice’s discretion.[98] Instead, the day-to-day practice of the Court must be examined as a distinct line of inquiry from its statutory framework.

To that end, for the purposes of this paper, all reported cases that were released by the Court in the 2015 calendar year have been surveyed and relevant data identified, coded and aggregated using the online database CanLII. A search for Divisional Court cases released in 2015 yielded a total of 439 cases. However, given the occasional confusion between the Superior Court and the Divisional Court, an additional search was conducted to identify any other decisions made by the Divisional Court that were inappropriately categorized as a Superior Court decision. This search yielded an additional 17 cases.

Below is a summary of the identified trends, including the type of decision being reviewed, the composition of the bench reviewing the decision, and important features of the decisions themselves. This analysis is not meant to be comprehensive or conclusive; rather, by shining a light on a significant number of Divisional Court cases delivered within the course of one year, it is hoped that some trends based on empirical data may emerge that could clarify whether the original objectives identified by McRuer are being met.

A larger scale, year-to-year comparison of decisions rendered by the Divisional Court, which is beyond the scope of this paper, would yield more relevant and reliable data. A further limitation is that the only publicly available data are the reasons of cases that have been fully litigated. But the number of reported decisions is far below the number of proceedings commenced at the Divisional Court, which stood at 1,493 in 2015.[99] Access to information regarding the nature of all proceedings commenced, and how those proceedings were resolved, would be of considerable benefit.

1. Type of Decision

There were 456 reported decisions of the Divisional Court released in the 2015 calendar year. Divisional Court proceedings accounted for only 0.76% of the total number Superior Court proceedings commenced in 2015.[100] Of the 456 reported decisions, 38 decisions dealt solely with a determination of costs of an earlier decision. For the purposes of the following review, these 38 costs-related cases have been omitted so as to focus on the core substantive issues engaged in a decision.

Of the 418 non-cost decisions, 237 decisions were made by a full panel of the Divisional Court, while the remaining 181 decisions were made by a single judge of the Divisional Court.

Turning first to the 181 decisions made by a single judge, 64 of those single judge decisions were determinations of motions of leave to appeal a decision to a full panel of the Divisional Court. A number of different lower court decision engage this gate-keeping requirement, including interlocutory orders of a Superior Court judge, some family decisions, and decisions of the Ontario Municipal Board. In terms of outcome, leave to appeal was granted in only 13 of the 64 of the decisions.

The next largest cohort of decisions made by a single judge of the Divisional Court was appeals from decisions of the Small Claims Court.[101] In 2015, there were 55 reported cases of a Divisional Court judge determining small claims appeals. Interestingly, this was one area where there was a significantly higher degree of success than other types of appeal; 27 of the 55 appeals (or 49%) resulted in the appeal being allowed or allowed in part.

Turning to the decisions made by a full bench released in 2015, judicial appeals represented 90 of the 237 reported decisions. A well-traveled route of judicial appeal to was appeals from an award of under $50,000 pursuant to s 19(1.2) of the Courts of Justice Act.[102] Further, a full panel of the Court reviewed family court decisions in 17 instances. Another common judicial appeal included matters related to the Construction Lien Act,[103] which resulted in eleven appeals to the Divisional Court in 2015. Some specialized decisions were occasionally appealed to the Divisional Court, including class actions (which resulted in six appeals that calendar year), and estates or succession matters (which resulted in five appeals).

Despite the frequency of judicial appeals, the bulk of the determinations made by the Divisional Court engaged the public law expertise of the Court. In 2015, the Divisional Court decided 147 cases of judicial review or statutory appeals. Unsurprisingly, the decisions of Ontario’s busiest tribunals dominated the overall number of the reviews and appeals. The Landlord and Tenant Board was the tribunal whose decisions were most often reviewed, with 22 cases being assessed by the Court. The Court also reviewed 15 decisions of the Human Rights Tribunal of Ontario (HRTO). The Court was regularly called upon to hear applications in labour matters; eleven decisions of labour arbitrators and nine decisions by the Ontario Labour Relations Board were reviewed by the Court in 2015.

Striking trends regarding the standard of review emerged during this analysis as well. Of the 147 judicial review and statutory appeal decision, 87 of the cases engaged the reasonableness standard. In terms of outcome, the determination of the decision-maker was found to be completely unreasonable in ten cases, or partly unreasonable in three cases. Of the ten reported cases that attracted a correctness standard, three of those decisions being found to be incorrect.

Procedural fairness issues, including matters of natural justice, bad faith, and reasonable apprehension of bias, were raised in 27 cases, with breaches of procedural fairness being found in 5 of those cases. The Court also refused to exercise its jurisdiction in nine cases on varying grounds, including delay, prematurity, or there being no exercise of statutory power to review. There were a further eight cases where the Court refused to review a decision of the Landlord and Tenant Board because the decision contained no error of law, which is a prerequisite for review under the Residential Tenancies Act.[104] 

2. Composition of the Bench

Based on the data reviewed, it would appear that geographic diversity plays some role in the composition of a full panel. Of the 237 decisions by the full panel, 155 featured at least one judge who was not a judge of the Superior Court assigned to sit in the Toronto region. None of the panels reviewed, however, were composed entirely of non-Toronto judges.

Several judges appeared regularly on a full panel of the Divisional Court. The most frequently recurring judge to sit on a panel was Justice Harriet Sachs, who served as administrative lead for the Divisional Court in 2015,[105] and sat as part of the panel in 90 of the reported cases. The second most regularly assigned judge in 2015 was Justice David Corbett, who sat on the panel in 74 of the decisions. Other judges who were regularly assigned included Justice Alison Harvison Young (in 48 decisions), Justice Katherine Swinton (in 47 decisions), Justice Thomas Lederer (in 41 decisions), and Justice Anne Molloy (in 36 cases). All of these judges sit in the Toronto region. The non-Toronto judges with the most frequent appearances were Justices Peter Hambly of Kitchener, who sat on the panel in 15 decisions, and V. Jennifer MacKinnon of the Family Court in the East Region, who was part of the panel in 12 cases.

The strong representation of Toronto judges on the bench of the Divisional Court is perhaps unsurprising when considering that 54% of the Divisional Court proceedings were commenced in Toronto, a region that only comprises 20% of the population of the province.[106]

3. Decisions

Interestingly, only six decisions of the 237 non-costs cases that were decided by a full panel featured a split decision. Two of those decisions featured only a concurring opinion,[107] while the other four decisions featured an actual dissenting opinion.[108] Two of the four decisions with dissent featured an identical panel, composed of Justices Aitken, Ramsay and Lederer. The panel disagreed in the decisions of Ottawa Police Services v Diafwila[109] and Canadian Union of Postal Workers v Canada Post Corporation,[110] both of which were applications for judicial review heard in the same week in January. 

Almost half (94 of 237) of the full bench, non-costs decisions were delivered orally. This has the benefit of providing a same-day resolution of an appeal. Despite the high frequency of oral decisions, the average amount of time for a full panel decision to be released after a hearing was 25.9 days. Three of the full-panel decisions took more than 200 days to be released:

• Hodge v Neinstein was decided in 202 days.[111]
• Jacobs v Ottawa Police was decided in 208 days.[112]
• Jennings v Minister of Social Services of Ontario was decided in 246 days.[113]

The longest delay for a single-judge decision to be released was a judicial appeal from a small claims matter decided by Justice Barnes, which took 258 days between arguments and decision.[114]

Strikingly, proceedings at the Divisional Court are overwhelmingly in English. Only five of the decisions, taken from both single judge and full panel decisions, were delivered in French.

4. Conclusion

Though the majority of cases decided by the full bench of the Divisional Court in 2015 engaged its public law expertise, non-administrative judicial appeals represent a significant proportion of its regular work, particularly if decisions made by a single judge in small claims appeals are taken into account. The heavy reliance on a standard of reasonableness used in judicial reviews and statutory appeals suggests a high degree of deference to administrative decision-makers. Meanwhile, review based on the correctness standard appears to have significantly curtailed.

The frequency with which some judges are assigned to sit on the panel suggests that there is a relatively stable cohort of judges who gain the appellate expertise needed to sit on the Divisional Court. The summary disposal of many appeals through oral judgment is often contrasted with lengthy, complex decisions on highly charged issues, suggesting that the scope and importance of appeals is varied.  

4.Objectives Satisfied and Challenges Ahead

The landscape of judicial review that led to the creation of the Divisional Court in the 1960s stands in stark contrast to the contemporary reality of government function and administration of justice. Both substantively and procedurally, our notions of judicial efficiency, the relationship between the courts and the executive branch, and concepts of the rule of law have all undergone transformations. Despite the expanding jurisdictional bounds of the Divisional Court, the Court itself has changed very little in the interim. As a result, the Court’s ability to fulfill its original mandate must be considered: the adequate protection of individual rights, a simple and inexpensive procedure, early finality of decisions, and minimal interference in the functioning of government.

Two trends in particular warrant particular focus. The first is the continuing evolution of the place and substance of judicial review. In many respects, reasonableness is becoming the organizing principle of administrative law,[115] even in cases involving Charter rights. Theoretically, the debate on how to balance a collective interest in the smooth functioning of government with the protection of individual rights is far from settled. In light of the strong trend towards deference towards public decision-makers, should the Divisional Court’s judicial review mandate remain as robust?

The second trend focuses more on the procedural implications of the administration of justice. As specialized courts become more commonplace, so too do concerns regarding judicial economy and proportionality. Many of the reported decisions of the Divisional Court surveyed in the previous section can provide useful examples of how the complex structure and mandate of the Court confuse litigants and lawyers alike. Is the current system of a three-judge appellate system justifiable if it threatens a simple and speedy resolution to disputes over the exercise of public power? In other words, does the Divisional Court provide early resolution to disputes through a clear and inexpensive procedure?

I. Reasonableness, Deference, and the Rule of Law

The content and form of judicial review impacts the Court’s purpose. A number of transformative trends have significantly altered the way that reviewing courts approach matters before it, including refinement in the doctrines of substantive review, efforts to define procedural fairness, and the introduction of the Charter.

First, substantive review of administrative decision-making has become increasingly narrowed in recent years. This is largely unsurprising: the statutory monopoly of decision-makers is conducive to the development of a high degree of expertise and subject matter knowledge which is more profound than that of a generalist reviewing court,[116] even if that court is a specialized court of public law.

The standard of review is important in the modern context on the basis of the rule of law and the democratic principle.[117] Paul Daly extensively canvassed how the Dunsmuir ideas of the rule of law (ensuring administrative decision-makers do not exceed their jurisdiction) and the democratic principle (respecting the intent of legislatures to imbue decision-makers with powers to interfere with rights) impact the standard of review.[118] As he notes, “if reasonableness is not applied in a way that is respectful to the democratic principle embodied in the legislative choice to grant decision-making to a body other than a court, confusion lies ahead.”[119] 

This restraint on the review powers of Courts is compounded by the Legislature’s tendency to limit the right of judicial review or appeal in many scenarios, particularly in restricting review of decisions of many high traffic tribunals, such as the HRTO or the Landlord and Tenant Board, to errors of law. A government-commissioned report, subsequent to the McRuer Report, argued that the public interest can no longer be seen as synonymous with the interests of the individual. The solution in that report was to codify elements of judicial discretion into statutory form so that the merits of agency decisions are subject to limited interference.[120]

Even when a court is called upon to answer a question of law, the result may pervert the deliberate choice of the legislature to empower a decision-maker to determine such matters. As Roderick MacDonald explains:

Whenever courts decide a question of law, the legislative choice about the overall normative context for working out of the relevant policy will be contorted. It will be taken away from the administrative decision maker in question (‘which knows the field’) and given to the bodies like courts (‘which don’t know the field, but know the law’). The review necessarily privileges formal expertise over substantive expertise.[121]

The Charter has come closest to a blank cheque for courts to legislate and to impinge on the democratic principle in favour of the rule of law in the name of protecting rights.[122] But in the context of judicial review, current jurisprudence is clear that the balancing of Charter by the decision-maker in their administrative context is still owed deference.[123]

A dominant standard of reasonableness could also interestingly represent a compromise between legalistic and functionalist approaches to judicial review. It may seem that a reasonableness standard, which emphasizes the democratic principle, would push away from a strengthened role for the Court under a rule of law approach. This concern may be overstated for a number of reasons. Many desirable legalistic objectives associated with court oversight are still attained. First, from a normative perspective, judicial review continues to provide effective scrutiny of the machinery of government. A determination made on the basis of reasonableness is not necessarily less useful or robust than a decision on the basis of correctness. Second, Divisional Court cases provide specialist decision-makers with useful boundaries of supportable decisions that may guide future Tribunal decisions. Third, even beyond the tribunal where a decision was made, judicial decisions provide useful touchpoints for other administrative decision-makers. Fourth, lawyers still prioritize judge-made law.[124] The decisions of courts enhance the legitimacy of administrative decisions in the eyes of the legal profession and provide frameworks for the future enforcement of individual rights.

From a functionalist perspective, a more deferential standard of review limits court interference of the appropriate exercise of statutory decision-making power. Collective rights, asserted through the efficient functioning of the state, are not as significantly curtailed due to an interventionist judiciary. In emphasizing a wide range of acceptable outcomes, decision-makers will have the latitude to apply their expertise. This is even more pronounced if the reviewing court possesses the public law knowledge to better understand the specialist nature of tribunals and defer to them on those matters. 

Second, several developments that were contemporaneous or subsequent to the establishment of the Divisional Court brought forth clarity in the laws of procedural fairness. Both statute (such as the Judicial Review Procedure Act[125] and the Statutory Powers Procedure Act[126]) and common law[127] now provide a much stronger guide to administrative decision-makers than ever before. Despite this codification of rights, procedural fairness issues are regularly raised at the Divisional Court, and were successful in 18.5% of cases. This would suggest that the Court continues to play an important role in ensuring that the legal authority of decision-makers does not run untrammelled across the procedural rights of parties whose interests are at stake.

But should courts be presumed to be the ultimate guardians of individual rights, and can they ever be truly relied upon to limit their interference? No conception of the rule of law can stand forever – the scope of administrative law and understandings of the public interest evolve over time.[128] Though Harry Arthurs pointed to new discourses of state and law that challenged the traditional legalistic and functionalist views of administrative law that were typified by the binary approach of McRuer and Willis, even Arthurs concluded that rights “will not survive if courts are not their primary guarantors.”[129] This is echoed by Hogg and Zwibel, who note that the rule of law, regardless of definition, means that “there must be mechanisms to ensure that official action is justified by positive law and that decision makers stay within the bounds of the powers they have been granted by positive law.”[130]

It seems unnecessary then to have a clearly defined idea of the rule of law in order to justify a specialized court of public law that exercises its functions in the interest of individual rights. Indeed, the mere existence of rights of appeal or review is believed by laypersons as increasing the likelihood of fair outcomes.[131] Some critics are likely to point out that the reasonableness standard may simply be a smokescreen for a correctness review.[132] However, disguised interventionism should not result in the scheme of judicial review being dismantled; rather, doctrinal clarity and discipline would go far in curing such maladies. 

The theoretical underpinnings to the administrative state have changed, and greater deference may now be paid to the democratic principle through the reasonableness standard of review. But judicial review continues to operate as the primary pillar supporting the idea of rule of law, and in recognizing the democratic principle through deferential review, may appropriately strike a balance between the efficient functioning of government with the vigorous defence of rights.  

On this basis, there continues to be a clear justificatory basis for the continued existence of a specialized body of public law expertise that reviews the decisions of the public apparatus. How that body is structured, however, rather than the substance of what and how it reviews decisions, proves to be more problematic. 

II. The Administration of Justice  

Justice McRuer noted that the “simpler and speedier the process of appeal, the more effective is the disciplinary force and the firmer is the foundation on which the administration of justice rests.”[133] This presages much of the recent development in civil procedure jurisprudence and statutory reform, which has sought to correct the negative repercussions of unnecessary expense and delay on the fair and just resolution of disputes.[134] 

This is nowhere more important than in judicial reviews and statutory appeals. Typically, one party to the dispute will be a an organization with a public or regulatory mandate whose publicly-funded resources and expertise far outstrips the other party (in most cases an individual). The mechanisms to prevent against the possible capricious machinations of the state should therefore be easily accessible and inexpensive. But three significant accessibility issues emerge in the context of the Divisional Court: first, there remains considerable confusion over the process and jurisdiction of the Court. Second, judicial economy may not be maximized in the Court’s current form. Finally it is unclear whether the Court has the public law expertise needed to carry out its mandate.

1. A SIMPLE APPEAL?

As surveyed in the first section, the Divisional Court straddles various functions of the Superior Court and the Court of Appeal. It is unsurprising, then, that there continues to be confusion on where the powers of the Divisional Court begin and end.

A review of some examples from the 2015 reported decisions of the Divisional Court exposes how the complicated statutory limits of the Court may cause issues for litigants. The Court itself must be acutely aware of this so as not to exceed its bounds. For example, in Bryce v Bryce, the parties agreed that an appeal of an award of child and spousal support lay to the Divisional Court because the amount was under $50,000. The Court raised the jurisdiction itself. Despite the parties being “anxious” for the case to be heard, the Court held that the case was not within its jurisdiction, and duly transferred it to the Court of Appeal.[135] In another case, the appeal from a final order dismissing a claim for a single payment was found to be improperly before the Divisional Court. Here, however, the Court declined to exercise its jurisdiction to transfer the appeal to the Court of Appeal.[136]

The Court expects that parties bear the burden of sorting out issues of statutory jurisdiction that may arise. As noted by Lederer J in a case of confused jurisdiction:

Counsel seeks a ruling as to whether this court or the Court of Appeal has jurisdiction. I confess to some concern. No one appeared for the responding party which, it would seem, acknowledged the issue but chose not to take a position. Counsel for the appellant, similarly, does not appear to be strongly committed to one view or the other. No factum was filed. They just want to know where they are supposed to go. There is a problem. It is not for lawyers to figuratively (or literally) throw up their hands and ask the court to tell them what to do.[137]

Justice Lederer went on to refuse to issue declaratory relief sought, but instead considered whether the motion should be quashed for lack of jurisdiction.

There may also be confusion about when it is appropriate to bring the matter before a single judge as opposed to a full panel of the Divisional Court. In Godard v Godard, a full panel of the bench heard a motion to leave to appeal, which ought to have been heard by a single judge. Since requiring a further motion would be contrary to the interests of justice and each judge would have dismissed the motion in any case, the motion was dismissed by the full panel.[138] It is noteworthy that, in that case, both parties were represented.

Most of the confusion about the jurisdiction of the Divisional Court occurs in cases that engage its judicial appellate function family or civil matters. This may be somewhat misleading; reported decisions are only a snapshot of the litigation upon conclusion. It is difficult, if impossible, to gauge how often proceedings, including judicial reviews, are begun in the correct venue, and whether the Divisional Court is well recognized by those seeking to challenge government decisions as the correct forum to hear the dispute.

Even if the Divisional Court is recognized as an appropriate venue, the fine distinction between statutory appeals and applications for judicial review complicate the process. For example, in 1056626 Ontario Inc. v Municipal Property Assessment Corp., the applicant sought judicial review of a decision of the Assessment Review Board. However, s. 43.1 of the Assessment Act provides for a right of appeal on a question of law within 30 days of the board’s decision. [139] In dismissing the application for judicial review, the Court determined that the appellant’s actions had the effect of circumventing the statutory appeal and so should not be allowed to proceed.[140]

This is in contrast to a decision from only 7 months earlier. In Jacobs v Ottawa Police, the applicant was charged with an unnecessary exercise of authority under the regulations created pursuant to the Police Services Act.[141] Section 88(1) of the Police Services Act provides for a statutory right of appeal within 30 days. Since the applicant failed to exercise this right of appeal, he had “no alternative but to proceed with an application for judicial review and, as there was no objection raised by the respondents and because of the importance of the issue raised, [the Court] permitted him to do so.”[142]

Without statutory harmony amongst the many provisions governing review by the Divisional Court, the process risks being undermined by lack of consistency. The legalistic distinction between a statutory appeal and an application judicial review threatens to unacceptably undercut McRuer’s vision for a simple process of appeal. Additional variables, such as limited rights of appeal and time limits, may confuse or place unnecessary restraints on judicial review of administrative action.

2. JUDICIAL ECONOMY

The requirement that three senior Superior Court judges must review determinations of administrative decision-makers prompts questions regarding the efficient use of judicial resources. There are two concerning trends that emerged from the 2015 data that put this concern in stark relief: first, the high number of oral decisions, and second, the low number of split decisions.

First, 39.6% of the full panel decisions of the Divisional Court were delivered orally in 2015. This statistic, when narrowed to judicial reviews and statutory appeals, is largely the same; 58 of the 147 full bench decisions, or 39.5%, were delivered orally. Only 4 of the 58 oral decisions resulted in an outcome that was at least partially successful for the party seeking to overturn the decision. It can likely be inferred from this statistic that the appeals or applications being heard were reviews of a nature that did could be disposed of in a summary manner. Are three judicial minds truly needed in these cases?  

Second, as noted above, only 2.5% of decisions resulted in multiple opinions from the Court, and that proportion drops to 1.9% (4 out of the 237 full panel decisions) when looking at cases where there is a dissenting opinion. There are a number of possible conclusions regarding the low number of split decisions, including efforts to build consensus on the bench, the nature of cases being heard being relatively straightforward, power imbalance between the parties, or power imbalance on the bench.

Though it is beyond the scope of the paper to analyze what factors produce such a low number of split decisions, when coupled with the high number of oral decisions, the most likely answer is that there is a high number of unsubstantiated appeals. Could a single judge carry out this function? A single judge may, after all, hear applications for judicial review if deemed as sufficiently urgent under the Judicial Review Procedure Act.[143] The possible expediency gained by a single judge hearing must be balanced against a perception, right or wrong, that three judges are more likely to “get it right” than a single judge. The solution may not be, therefore, that a single judge makes a final determination in statutory appeals or applications for judicial review, but may act as a gatekeeper for weeding out cases that could clog up courts.

There is precedent for using a leave to appeal system. For example, as noted earlier, a decision of the Ontario Municipal Board can only be appealed with leave.[144] It may be that an in-writing leave to appeal system could allow the Court to streamline which cases are heard by a full panel, and ensure that only prima facie meritorious applications or appeals result in three judges being assigned to hear the case. This is particularly true for appeals from high traffic tribunals, such as the HRTO and the Landlord and Tenant Board, that result in multiple appeals being heard by a full panel when the appeal does not concern an error of law as required by statute. The downside to a leave system is that it imposes additional procedural barriers and time delays to what should be an expedient and straightforward process.  

3. PUBLIC LAW EXPERTISE

In the family and criminal contexts, lawmakers have relied on specialized courts as a vehicle for responding to unique challenges raised within the adjudication of those areas. A recent report in British Columbia highlighted some of the benefits of a specialized court system, including increased efficiency and improved outcomes.[145] In Ontario, various branches of the Superior Court have been specialized to respond to unique issues that emerge in distinct areas of litigation, including family, bankruptcy, estates, and commercial law.

But does public law warrant the same type of specialist court? The only other province with a similar type of general administrative review body is the Tribunal administratif du Québec. This Tribunal hears appeals from a wide range of departments, agencies and municipalities, and has the power to change, set aside or uphold a decision.[146] Even then, it is composed of adjudicators with diverse backgrounds, and not necessarily any formal legal training. This might suggest that public law appellate work can be largely fulfilled within a tribunal structure system that retains its expertise.

Further, the types of public law issues that arose in the 1960s are different from today. In 2015, only a handful of cases before the Court raised a core issue of public law, such as the vires of regulations,[147] the jurisdiction of a Minister to issue a prohibition,[148] and the vires of municipal by-laws[149] or resolutions.[150] Many Superior Court judges would be familiar and likely be able to apply the bread and butter concepts used in judicial review, such as review of findings of fact, appreciation of evidence, natural justice, reasonable apprehension of bias, and procedural fairness.

But there remain several other areas in administrative law that militate in favour of a specialized court. The standard of review analysis continues to pose conceptual and practical difficulties for judges.[151] In depth knowledge of concepts at play in judicial review, particularly rule of law concepts and the democratic principle, strengthens a Court’s role in review. A working knowledge of the specialized subject matter area of a Tribunal whose decisions is under review would provide clearer goal posts of reasonableness when assessing determinations.   

A specialized court of judicial review is unlikely to be justified unless it demonstrates some public law expertise made possible through pre- or post-appointment experience of the judges populating that bench.[152] This ground alone seemed to convert even the staunchest critics to legalistic reform. Still, it appears that the history of the Court has been mixed in this regard. The approach of the Chief Justice is determinative of the outcome. At times, “rotations through the Court have been rapid and little attention has been paid to the expertise of those selected to serve.”[153] Currently, it would appear that a stable contingent of judges is assigned to the Court with some regularity.

Though a slight majority of the Divisional Court’s work appears to be administrative in nature, judicial appeals may unacceptably dilute expertise in this field and reduce the Divisional Court to a more generalist body, defeating both McRuer and Willis’ justification for the Court. A review of the structure of judicial appeals may identify and simply judicial appellate routes in general. Based on a review of Ontario statute, the Provincial government does not employ an organizing principle in determining appeal routes, besides that generally “less serious” appeals are directed towards the Divisional Court. Though McRuer was unwilling to expand the Court of Appeal beyond 10 members, the Court of Appeal’s membership has since swollen to 33 judges. It may be appropriate, therefore, to revisit whether some judicial appeal routes should be redirected towards the Court of Appeal.

5. Conclusion

The administrative state is here to stay. The decision-making mechanisms of government possess a responsiveness that provides expediency not always replicable in court systems.[154] Despite this, there will always be concerns about structural conflicts between central organs of government and their “arm’s length” decision-making bodies.[155] Our current understandings of the rule of law carve out a role for the courts in order to preserve rights. The question seems now to focus on how that court oversight should be structured, and to what extent deference should be paid to statutory decision-makers.

McRuer’s work represented a shift from a focus on the broad purposes of governmental institutions to the rights of the individual.[156] The Divisional Court’s role in providing a safeguard to those individual rights has given way, to a certain extent, to the collective interest in the efficient functioning of government through a deferential standard of review. Conceptually, the Divisional Court’s role as a specialist court of public law and judicial review remains on strong footing. In practice, however, there are a number of practical realities that challenge its future.

The striation of statutes has led to an inconsistent web of rights, scope, timing and availability of appeal or review. This undercuts the objective of a simple, accessible and straight-forward review process. This is largely the fault of the legislature rather than the court; a complete statutory overhaul would be necessary in order to align, streamline and harmonize various rights of appeal or review.

Structurally, considerable discretion in the hands of the Chief Justice may leave the Court open to sacrificing its public law expertise for administrative expediency. Though there is no evidence of this in practice, it leaves the Court vulnerable to attack from a perspective that seeks to limit generalist intervention in the specialized work of tribunals. The public law expertise of the Court is more likely under threat from its increasing responsibilities in hearing judicial appeals. This may be remedied by redirecting some judicial routes of appeal to the Ontario Court of Appeal.

Streamlining the workload of the Court may improve its responsiveness to issues. Commensurate with ideas of proportionality, a system of leave that does not involve an overly onerous procedure (made in writing, for example) may weed out applications that could be dealt with summarily. Not only would this provide the Court with greater capacity, but it would also provide a less expensive and more expedient result for litigants.

Some commentators responding to the release of the McRuer Report in 1968 predicted that the influence of the report would be felt for fifty years.[157] The Divisional Court is one of those influences that still resounds in the modern day; the Court has fundamentally altered how judicial review of administrative action is carried out in Ontario. That does not mean, however, that the Court has maintained a laser-like focus on its public law purpose. As a statutory creature, the legislature of Ontario bears primary responsibility in ensuring that the Court remains relevant and effective. The onus lies on that same legislature to balance individual and collective interests in the judicial institutions of administrative review.

Works Cited

Statutes

Assessment Act, RSO 1990, c P.15.

Building Code Act, 1992, SO 1992, c. 9.

Business Names Act, RSO 1990, c B 17

Civil Rights Statute Law Amendment Act, SO 1971, c 50.

Class Proceedings Act, 1992, SO 1992, c 6.

Construction Lien Act, RSO 1990, c C.30.

Courts of Justice Act, RSO 1990, c C43

Declarations of Death Act, 2002, SO 2002, c 14,

Election Act, RSO 1990, c E 6.

Estates Act, RSO 1990, c E.21.

Gas and Oil Leases Act, RSO 1990, c G.3.

Human Rights Code, RSO 1990, c H 19

Judicial Review Procedures Act, RSO 1990, c J.1

Ontario Municipal Board Act, RSO 1990, c O.28.

Police Services Act, RSO 1990, c P.15.

Private Hospitals Act, RSO 1990, c P.24.

Professional Engineers Act, RSO 1990, c P. 28.

Professional Foresters Act, 2000, SO 2000, c. 18.

Professional Geoscientists Act, 2000, SO 2000, c. 13.

Public Inquiries Act, 2009, SO 2009, c 33, Sched 6.

Residential Tenancies Act, 2006, SO 2006, c. 17

Statutory Powers Procedure Act, RSO 1990, c S 22.

Unconscionable Transactions Relief Act, RSO 1990, c U.2.

Vendors and Purchasers Act, RSO 1990, c V.2.

Jurisprudence

Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 174 DLR (4th) 193 (SCC).

Belchevski v Dziemianko, 2015 ONSC 2360, 9 ETR (4th) 241 (Div Ct).

Bryce v Bryce, 2015 ONSC 3795, 62 RFL (7th) 365 (Div Ct).

Canadian Union of Postal Workers v Canada Post Corporation, 2015 ONSC 729, 333 OAC 36 (Div Ct).

Courchene v Carleton University Students’ Association, 2016 ONSC 3500, 267 ACWS (3d) 8.

Doré v Barreau du Québec, 2012 SCC 12 at paras 55-57, [2012] 1 SCR 395.

Dunsmuir v New Brunswick, 2008 SCC 9 at para 27, [2008] 1 SCR 190.

Excalibur Special Opportunities LP v Schwartz Levitsky Feldman LLP, 2015 ONSC 1634, 386 DLR (4th) 313 (Div Ct)

Godard v Godard, 2015 ONSC 3114, 253 ACWS (3d) 343 (Div Ct).

Graff v New Democratic Party, 2017 ONSC 3578, 279 ACWS (3d) 757 (Div Ct)

Gymnopoulos v. Ontario Association of Basketball Officials, 2016 ONSC 1525, 264 ACWS (3d) 281.

Henry v Greig, 2015 ONSC 168, 248 ACWS (3d) 591 (Div Ct).

Hodge v Neinstein, 2015 ONSC 7345, 129 OR (3d) 111 (Div Ct).

Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87.

Jacobs v Ottawa Police, 2015 ONSC 2240, 336 OAC 1 (Div Ct).

Jennings v Minister of Social Services of Ontario, 2015 ONSC 6689, 340 OAC 252 (Div Ct).

Joshi v Minister of Health and Long-Term Care, 2015 ONSC 1001, 125 OR (3d) 384 (Div Ct).

Langenfeld v HMQ, 2015 ONSC 5294, 257 ACWS (3d) 258 (Div Ct).

Nicholson v Haldimand-Norfolk (Regional Municipality) Commissioners of Police [1975], 9 OR (2d) 481, 61 DLR (3d) 36 (Div Ct).

Ontario Securities Commission v MRS Sciences Inc. et. al., 2015 ONSC 6317, 128 OR (3d) 414 (Div Ct).

Ottawa Police Services v Diafwila, 2015 ONSC 931, 333 OAC 10 (Div Ct).

Public Service Alliance of Canada v Nav Canada, 2015 ONSC 1407, 333 OAC 161 (Div Ct).

Setia v Appleby College, 2013 ONCA 753, 118 OR (3d) 481. 

Schwilgin v Szivy, 2015 ONSC 4292, 255 ACWS (3d) 669 (Div Ct).

The Ontario Refrigeration and Air Conditioning Contractors Association v United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 787, 2015 ONSC 1121, 333 OAC 177 (Div Ct).

The Ontario Refrigeration and Air Conditioning Contractors Association v United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 787, 2016 ONCA 460, 204 DLR (4th) 63.

West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, 327 OAC 29 (Div Ct)

Wildlands League v Lieutenant Governor in Council, 2015 ONSC 2942, 97 CELR (3d) 131 (Div Ct).

Wpd Sumac Ridge Wind Inc. v Corporation of the City of Kawartha Lakes, 2015 ONSC 4164, 96 CELR (3d) 329 (Div Ct).

1056626 Ontario Inc. v Municipal Property Assessment Corp., 2015 ONSC 7967, 88 OMBR 466 (Div Ct).

1736095 Ontario Ltd. v Waterloo (City), 2015 ONSC 6541, 46 MPLR (5th) 1 (Div Ct).

Secondary and Other Sources

Arthurs, H. W.  “The Administrative State Goes to Market (and Cries ‘Wee, Wee, Wee’ All the Way Home)” (Summer 2005) 55 U Toronto LJ 797.

Arthurs, Harry. Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto, 1985)

Aterman, Paul. “What’s Not New in Administrative Justice: Macauley and Ouellete – Remember Them?” (2005) 18 Can J Admin L & Prac 251.

Boyer, Patrick. “A Passion for Justice: The Legacy of James Chalmers McRuer” (Toronto: The Osgoode Society for Canadian Legal History, 1994).

Daly, Paul. “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016) 62 McGill LJ 527.

Daly, Paul “The Signal and Noise in Administrative Law”(2017) 68 UNB LJ 68.

Dyzenhaus, David. “The Logic of the Rule of Law” (2005) 55 U Toronto LJ 691.

Ellis, S. Ronald. “The Justicizing of Quasi-Judicial Tribunals: Part II” (2007) 20 Can J Admin L & Prac 69.

Government of British Columbia Ministry of Justice, “Specialized Courts Strategy” (March 2016), online: <https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/specialized-courts-strategy.pdf>

Hogg, Peter and Cara Zwibel, “The Rule of Law in the Supreme Court of Canada” (2005) 55 U Toronto LJ 715.

Janisch, Hudson. “Something Old, Something New” (October, 2010) 23 Can J Admin L & Prac 219.

Macauley, Robert. Directions: Review of Ontario's regulatory agencies (Toronto, Queen’s Printer for Ontario, 1989.

MacDonald, Roderick A. “Call-Centre Government: For the Rule of Law, Press #” (Summer 2005) 55 U Toronto LJ 449

MacDonald, Roderick A. “Was Duplessis Right?” (2010) 55 McGill LJ 401.

Makuch, Stanley M. and Matthew Schuman. “Have We Legalized Corruption? The Impacts of Expanding Municipal Authority without Safeguards in Toronto and Ontario” (2015) 52 Osgoode Hall LJ 301.

Mullan, David J. “Willis v McRuer: A Long-Overdue Replay with the Possibility of a Penalty Shoot-Out” (Summer 2005) 55 U Toronto LJ 535.

Ontario Legislative Assembly, Official Report of Debates, 38th Parl, 3rd Sess, No 117, 7 October, 1970.

Ontario, Legislative Assembly, Official Report of Debates, 38th Parl, 3rd Sess, No 125, 15 October, 1970.

Ontario, Legislative Assembly, Official Report of Debates, 38th Parl, 3rd Sess, No 140, 29 October, 1970.

Reid, R. F. “The Ontario Divisional Court” (Paper delivered at the Canadian Institute for the Administration of Justice Conference, November 1982), online: <https://ciaj-icaj.ca/wp-content/uploads/documents/import/SEMINARS/59.pdf?id=1141&1512272199>.

Royal Commission Inquiry Into Civil Rights, Report Number One (Toronto: Queen’s Printer, 1968).

Superior Court of Justice. “Consolidated Practice Direction for Divisional Court Proceedings” (July 1, 2014 (as amended)), online: <http://www.ontariocourts.ca/scj/practice/practice-directions/divisional-court/>

Superior Court of Justice. “Divisional Court Sittings By Region” online: <http://www.ontariocourts.ca/scj/divisional-court/sittings/>.

Superior Court of Ontario. “The Superior Court of Justice: Realizing Our Vision. Report for 2015 and 2016” (2016), online: <http://www.ontariocourts.ca/scj/files/annualreport/2015-2016.pdf>.

Tribunal administratif du Québec, “Am I at the Right Place?”, online at: <http://www.taq.gouv.qc.ca/en/filing-a-proceeding/am-i-at-the-right-place>.

Willis, John. “Canadian Administrative Law in Retrospect” (1974) 24 U Toronto LJ 225.

Willis, John. “The McRuer Report: Lawyers’ Values and Civil Servants’ Values” (1968) U Toronto LJ 351.

Willis, John. “Three Approaches to Administrative Law: The Judicial, the Conceptual, and the Functional” (1935) 1 U Toronto LJ 53.

Endnotes