The Divisional Court just released a decision in College of Nurses v. Trozzi on a similar issue. Trozzi sought a nursing license from College of Nurses. The College imposed conditions on the license on the basis of certain medical conditions she had, and she challenged the decision at the Health Professions Appeal and Review Board (HPARB). She lost.
While waiting for the decision from the HPARB, she initiated a Human Rights Application, and the College sought dismissal under s.45.1. The Tribunal found that the HPARB had failed to apply the correct analysis to the question. The College sought judicial review.
That the Divisional Court even heard the application for judicial review at this stage is surprising - the Tribunal proceeding is ongoing, and normally this would be regarded as "premature". But as it went to a "true" jurisdictional question, the Court refused to quash the application for judicial review.
The Divisional Court unanimously allowed the application for judicial review, but there were different sets of reasons. The majority felt that the HRTO overstepped its bounds by attempting to sit in review of another statutory Tribunal with a "public protection mandate". Justice Lederer, by contrast, felt that the distinction of "public protection mandate" is somewhat meaningless, and that the Tribunal overstepped its bounds simply by trying to sit in review of another statutory Tribunal at all.
I don't think that this is the last s.45.1 case we're going to see, but the Divisional Court appears to be putting the HRTO in its place pretty firmly.
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