Can a third party compel a regulator to take enforcement action against those it regulates? In Resource Productivity and Recovery Authority v Environmental 360 Solutions Ltd., 2025 ONSC 2244 (CanLII) the Court said: generally, no.
The Authority “is a provincial regulator of resource recovery and waste reduction laws.” A provider “of waste management, environmental, recycling, and circular economy services” urged the Authority to take broad enforcement action. Doing so would advance the provider’s business. The provider sought an order of mandamus requiring enforcement action. The Court concluded that the provider’s application could not succeed for two principal reasons.
First, on a more technical level, the Court said: “Mandamus is not available for an order that a public actor generally comply with the law.” It is only available in specific circumstances where a public body is refusing to make an individual decision that it is required to make.
Second, on a broader policy basis, regulators have a broad discretion as to when enforcement action should be taken. “Courts have long been reluctant to intervene in the discretionary enforcement decisions of public regulators.” The structure and wording of the Authority’s enabling statute imports “significant discretion in its enforcement activities.” Absent discretion exercised in specific circumstances that amounts to an abuse of process or bad faith, a court will not intervene. No such circumstances were raised here.
As mandamus was not available, there was also no entitlement to a declaration that the Authority must bring enforcement action. The Court did not need to address whether the provider had standing (i.e., jurisdiction) to bring its application. Costs of $60,000 were awarded to the Authority.
This decision reaffirms the principle that regulators have broad discretion when it comes to enforcement activities.