The proper way to attack decisions made by administrative bodies is through judicial review. It is not permissible to circumvent this process by dressing up a review of a decision of an administrative tribunal as an application falling under the rules of civil procedure.

[2012] O.J. No. 2809

2012 ONCA 428

Ontario Court of Appeal

K.M. Weiler, R.A. Blair and P.S. Rouleau JJ.A.

June 21, 2012

The respondent, J.N., was required to obtain a police records check as part of an application for an employment position. J.N. submitted a Criminal Information Request (“CIR”) to the Durham Regional Police Service (the “Police”). The CIR included a reference to a withdrawn assault charge that J.N. had faced several years earlier. When J.N. received the CIR she took a number of steps to attempt to have the reference to the withdrawn charge removed from it.

First, she wrote to the Police requesting the withdrawn charge be removed. The Police, through an ad hoc Committee, denied the request.

Second, J.N. requested a reconsideration of the decision of the ad hoc Committee. The Police treated J.N.’s request for reconsideration as a complaint to the Chief of Police under the former s. 61 of the Police Services Act, R.S.O. 1990, c. P.15. The Chief rejected the appeal.

Third, J.N. requested the Chief’s decision be reviewed by the Durham Regional Police Services Board (the “Board”), pursuant to the appeal procedures provided in the Police Services Act. The Board issued a decision holding that it could not interfere with the results of the decision because the inclusion of the information on J.N.’s CIR raised issues of an “operational” rather than a policy nature.

Fourth, she brought an application before a judge of the Superior Court seeking an order in the form of an equitable remedy requiring that the reference to the withdrawn charge be removed from the CIR. Notably, J.N. did not seek judicial review. She argued in her application the Police and the Board violated: (i) a common law duty of fairness owed to her and (ii) her rights under s. 7 of the Canadian Charter of Rights and Freedoms by failing to provide an adequate process and effective remedy to remove the withdrawn charge from her CIR. The application judge quashed the decision by the ad hoc Committee of the Police and ordered that all of J.N’s future CIRs be issued without reference to the withdrawn charge.

The appellants, the Police and the Board, appealed the decision on the basis that the application judge did not have jurisdiction to quash the decision of the ad hoc Committee, the Chief of Police or the Board. The Ontario Court of Appeal allowed the appeal on the jurisdictional ground. The Appeal Court outlined that the procedure for attacking decisions of public administrative bodies is by way of judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 and made to the Divisional Court. The application judge in this case was not sitting as a judge of the Divisional Court; he was hearing an application purporting to be brought under the Ontario Rules of Civil Procedure. The Appeal Court held that the application procedure was not open to J.N. in these circumstances because the substance of her claim was for judicial review of the administrative decision of a public statutory body. The court rejected J.N’s argument that the decision of the ad hoc Committee was a non-statutory body on the following bases: (i) it is an informal decision-making body created by the Police, which is a statutory body, and its decisions are those of that statutory body and (2) even if the ad hoc Committee is not a statutory body, its decisions are those of a public administrative authority affecting J.N.’s rights, privileges and interests and they are therefore subject to the common law principles of procedural fairness.