Warning Letters are Not Subject to Judicial Review

Regulators often warn unregistered persons that they appear to be practising illegally or using an illegal title. These are sometimes called “cease and desist” letters. Can the recipient of a cease and desist letter seek judicial review of such a warning letter? The case of Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario, 2020 ONSC 3392, http://canlii.ca/t/j808h says no. Momentum disputed the regulator’s assertion in a warning letter that it was acting as a travel agent. However, the Divisional Court determined that such a warning letter was not a statutory power of decision and thus was not subject to judicial review. The regulator had to initiate court proceedings before any consequences would flow to Momentum.

The Court did not accept that judicial review was the appropriate route to obtain clarification as to whether Momentum was acting legally or not; the Divisional Court does not provide legal opinions in the abstract. In any event, even if the Divisional Court had that role, the information in the record was wholly inadequate for the Court to make a decision.

Thus cease and desist letters are not subject to judicial review, at least in these circumstances.

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