Cassels Brock was recently successful in quashing an application for judicial review which sought an order for mandamus aimed to obtain disclosure of the internal corporate records of the Pharmacy Examining Board of Canada (“PEBC”). PEBC is a not-for profit corporation that creates and administers a Qualifying Examination for pharmacists that is used by provincial regulatory authorities across Canada as part of their licensing processes.
The applicant was a pharmacy candidate who had failed PEBC’s Qualifying Examination the maximum of four times permitted and was not entitled to write it again. Nonetheless, the applicant had previously commenced two prior legal proceedings seeking to challenge PEBC’s four attempt limit. On this, his third application for judicial review, the applicant sought disclosure of documents relating to PEBC’s adoption of the four attempt limit presumably as a prelude to challenging the four attempt limit yet again.
PEBC sought to quash the application as being frivolous, vexatious, and an abuse of process. Specifically, PEBC argued that it had no legal obligation to produce the records sought by the applicant, and that the application was a transparent attempt to indirectly challenge PEBC’s four attempt limit decades after it had been adopted.
Justice Myers of the Divisional Court granted PEBC’s motion in its entirety. In particular, Justice Myers held that the application was frivolous in that the applicant could not identify any legal duty owed by PEBC to produce its corporate records to him, and that PEBC “is neither a regulator nor an administrative decision-maker” and “is not engaged in making decisions for the state.” Justice Myers further held that “[a]bsent a legal and mandatory duty to disclose its documents to the Applicant, this case does not even get off the ground.”
Justice Myers also dismissed the application as being vexatious and an abuse of process as it related to the adoption of the four attempt limit by PEBC over 30 years prior, which the applicant had been aware of for almost 20 years. Justice Myers noted the “clear threat” by the applicant to never cease challenging the four attempt limit, and held that the applicant’s ongoing efforts to “find different avenues to the same end is vexatious or an abuse of process”. Justice Myers also awarded PEBC its costs of the motion.
This decision follows an important trend in the case law clarifying the scope of judicial review: namely, that judicial review is only possible where the legality of state decision-making is at issue. It also send an important message to potential litigants that the Court will not permit them re-litigate issues or do indirectly what they are not permitted to do directly.
PEBC was represented in this matter by Jed Blackburn and Kate Byers, with support from Rob Kligman.