“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.
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, 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, 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. The JRPA provides that (with certain exceptions), an application for judicial review shall be made to the Divisional Court. An “application for judicial review” includes proceedings for a declaration in relation to the exercise of a statutory power. A statutory power includes a power or right conferred by or under a statute to make subordinate legislation, including regulations. 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.
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.” 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, faster and less costly than applications for judicial review. If the application judge concludes that there are material facts in dispute, the application can be converted into an action, a risk that many litigants are willing to take in constitutional litigation of this nature.
Ms. DiCienzo was challenging the validity of the regulation only. She did not challenge the regulation on the basis that it exceeded the statutory grant of authority. The decision confirms that an application to the Superior Court under rule 14.05(3)(h) continues to be the appropriate procedure in cases of this nature.
Di Cienzo does not provide a definitive answer on whether the Superior Court, Divisional Court or both have jurisdiction in cases involving constitutional and administrative law challenges to subordinate legislation. Belobaba J. cited a previous case in which Borins J. cast doubt on the Divisional Court’s ability to grant a declaration of constitutional validity of subordinate legislation under the JRPA. Belobaba J. suggested that the JRPA was limited to “cases where the litigation is seeking a declaration that the impugned regulation is ultra vires the authority of the enabling statute” or “at most… to cases where the litigant is seeking a declaration that involves both an ultra vires claim and a Charter-breach claim.” And he cautioned that an applicant cannot simply “tack on” a request for a declaration of constitutional invalidity to an application that is in substance an administrative law challenge, noting that the rule 14.05 procedure “should not be available where it is readily apparent on all the facts and circumstances that ‘the substance of [the] claim is for judicial review of the administrative decision of a public body.’”
However, it is often the case that there is no singular “substance” to a public law challenge to subordinate legislation. Litigants frequently challenge regulations, bylaws, orders and other subordinate legislation by advancing both constitutional and administrative law grounds of review, either in the alternative or as cumulative remedies. Careful consideration will have to be given in each case to determine the best Court and to identify and carefully frame the relief sought. Failure to do so can contribute to unnecessary jurisdictional jockeying and contribute to delay and expense in cases that often call out for (if not require) a speedy remedy. Experience and expertise in constitutional and public law in these cases will often be invaluable.
About the Author
Byron Shaw is a Litigation Partner. His practice includes public law and constitutional law. He is the co-author of Constitutional Law with Deputy Attorney General Patrick Monahan and Padraic Ryan, which is frequently cited by Canadian Courts including the Supreme Court of Canada.
 2017 ONSC 1351 [Di Cienzo].
 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868.
 R.R.O. 1990, Reg. 194.
 R.S.O. 1990, c. J.1 (“JRPA”).
 Ibid., s. 6(1).
 Ibid., ss. 1, 2(1)2.
 Ibid., s. 1.
 Di Cienzo, supra note 1 at ¶ 26.
 Ibid. at ¶ 25-26.
 Falkiner v. Ontario Ministry of Community and Social Services, 1996 CanLII 12495 (Ont. S.C. (Div. Ct.)).
 Di Cienzo, supra note 1 at ¶ 28.
 Ibid., at ¶ 29, citing J.N. Durham Regional Police Service,  O.J. No. 2809 (C.A.), at ¶ 16.