Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of the Ontario Divisional Court under the Judicial Review Procedure Act (JRPA), including whether the impugned policy involved the exercise of a “statutory power” within s. 2(1).
• Characterization of the September 16, 2025 letter and related policy as either a binding “directive” under s. 20 of the People’s Health Care Act, 2019, or a non-statutory government policy outside the JRPA framework.
• Availability of certiorari against the Crown when the Minister is not exercising a specific statutory power and is not acting through a statutory delegate.
• Impact of including Charter claims (ss. 6, 7 and 15) on the Divisional Court’s jurisdiction and whether constitutional allegations can expand an otherwise absent statutory basis for review.
• Timeliness of the judicial review application under s. 5(1) of the JRPA and the discretionary extension of time in light of public interest and complexity.
• Evidence concerning the operation of the CaRMS matching process and the practical effects of limiting international medical graduates’ access to the first iteration, particularly for highly specialized residencies.

Background and parties

The case arises from a challenge to a new Ontario government policy affecting international medical graduates’ access to medical residency positions in the province. Dominique Vervoort, an internationally trained physician who has lived in Ontario since July 2021 and became a Canadian permanent resident in July 2025, is the individual applicant. He completed medical school in Belgium in 2018 and has since been pursuing a PhD in Health Systems Research at the University of Toronto. Alongside him, Black Physicians of Canada, a non-profit public interest organization, joined as a co-applicant to challenge the policy on a broader systemic basis. The respondents are the Minister of Health and the Attorney General of Ontario. The motion was heard by Justice O’Brien of the Ontario Divisional Court.

The CaRMS process and the impugned policy

Access to residency positions in Canada is centrally administered through the Canadian Resident Matching Service (CaRMS), which runs an annual national matching system with two iterations. The first iteration is the main competition; the second iteration in March allows applicants who went unmatched in the first round to compete for any remaining unfilled positions. The evidence before the court indicated that approximately 92% of residency positions are filled in the first iteration, and, historically, highly specialized areas such as cardiovascular surgery—the specialty of Dr. Vervoort—do not have spots remaining by the time of the second iteration.

On September 16, 2025, the Assistant Deputy Minister of Health sent a letter to the Deans of Medicine of Ontario’s medical schools announcing a new policy on eligibility for the first iteration of the CaRMS match. The policy, which was publicly announced on October 8, 2025 and posted on the CaRMS website, applies to international medical graduates (IMGs) who are Canadian citizens or permanent residents and obtained their medical degrees outside Canada. Under the change, IMGs are barred from participating in the first iteration of the Ontario match unless they attended high school in Ontario for at least two years. The policy includes narrow exemptions for individuals who could not attend high school in Ontario because their legal guardian was deployed or posted outside Ontario as a member of the Canadian Armed Forces, the Canadian Diplomatic Service, or Global Affairs Canada.

The applicants claimed that this measure has severe practical consequences. For IMGs whose specialties are almost exclusively filled in the first iteration, such as cardiovascular surgery, exclusion from that round effectively precludes meaningful access to residency training in their area of expertise. They further argued that by deflecting IMGs into the second iteration, where only certain disciplines—such as family medicine and some rural or remote postings—tend to remain, the policy would exacerbate rather than relieve physician shortages in family and community-based care.

The judicial review application and interim relief

The applicants commenced an application for judicial review challenging the lawfulness and constitutionality of the policy. They argued the policy was unreasonable, adopted in a procedurally unfair manner, and in violation of ss. 6 (mobility rights), 7 (life, liberty and security of the person) and 15 (equality rights) of the Canadian Charter of Rights and Freedoms. They sought two main forms of relief: (1) declarations that the policy was unreasonable, procedurally unfair and unconstitutional; and (2) an order in the nature of certiorari quashing the policy.

Because applications for the first iteration of the 2026 CaRMS match were due at noon Eastern Time on November 27, 2025, the applicants also brought a motion for a stay of the policy pending determination of their judicial review. The motion was heard the same day by videoconference. Faced with evidence that applications filed after the deadline would be time-stamped as late and that some programs would not review late applications or documents, the court issued an “interim interim” order at the outset of the hearing. This temporary order stayed the operation of the policy solely to preserve the applicants’ and other affected IMGs’ ability to submit applications, avoiding the risk that the matter would become moot before the motion could be decided.

Timeliness and extension of time

A preliminary question was whether the application itself had been brought within the time limits set by the Judicial Review Procedure Act (JRPA). The Assistant Deputy Minister’s letter implementing the policy was sent on September 16, 2025, and the policy was publicly posted on October 8, 2025. Section 5(1) of the JRPA requires applications for judicial review to be commenced no later than 30 days after the date of the decision, subject to the court’s discretion to extend time under s. 5(2). The notice of application was filed on November 18, 2025, beyond 30 days from the initial letter and the public posting.

Justice O’Brien concluded that, in light of the public importance of the issues, the complexity of the legal questions raised, and the respondents’ neutral position on timeliness, it was appropriate to grant an extension of time. This allowed the court to proceed to consider the more fundamental question: whether the Divisional Court had jurisdiction to entertain the application for judicial review at all.

Jurisdiction under the Judicial Review Procedure Act

The central issue on the stay motion was jurisdiction. The Divisional Court’s jurisdiction over judicial review is strictly statutory and is defined by s. 2(1) of the JRPA. That provision authorizes the court to grant relief that would be available either in proceedings by way of mandamus, prohibition or certiorari (s. 2(1)1), or in an action for a declaration or injunction relating to the exercise, refusal to exercise, or proposed or purported exercise of a “statutory power” (s. 2(1)2).

The applicants relied first on s. 2(1)2, arguing that the policy was an exercise of statutory power. A “statutory power” under the JRPA includes powers conferred by statute to make subordinate legislation, to exercise a statutory power of decision, to compel persons to do or refrain from acts they would not otherwise be legally required to perform, or to do acts that would otherwise breach legal rights. The applicants traced the Minister’s general authority to statutes such as the Ministry of Health and Long-Term Care Act and the People’s Health Care Act, 2019, emphasizing the Minister’s role in funding, oversight and the integrated health-care delivery framework.

However, Justice O’Brien held that this was insufficient. The Divisional Court has repeatedly emphasized that s. 2(1)2 does not create a broad supervisory mandate over all government policy; rather, declaratory relief is limited to situations in which a specific statutory power has in fact been exercised, refused, or proposed. On the record, the applicants were unable to identify a particular statutory power that had been invoked or applied when the Assistant Deputy Minister issued the September 16 letter. The letter did not cite any statutory authority, and the respondents expressly maintained that no particular power under statute was being exercised.

The only potential source identified was s. 20(1) of the People’s Health Care Act, 2019, which permits the Minister, when in the public interest, to issue binding directives to Ontario Health or to persons and entities funded by Ontario Health under s. 21. Justice O’Brien concluded that s. 20(1) did not apply: the letter did not purport to be a “directive” within the meaning of the statute; it was not published in the manner required for statutory directives; and the recipients—Deans of Medicine at Ontario medical schools—were neither Ontario Health itself nor health service providers funded through Ontario Health under s. 21. In short, the policy operated as a government direction or guidance measure, but not as the exercise of a named statutory power.

Because no “statutory power” was properly identified, the court found that s. 2(1)2 of the JRPA did not ground jurisdiction to issue declarations.

Certiorari and the scope of supervisory jurisdiction

The applicants’ alternative route to jurisdiction was s. 2(1)1, seeking certiorari to quash the policy. Justice O’Brien accepted the respondents’ submission that certiorari is not available against the Crown in circumstances where the Crown is neither exercising a statutory power nor acting through an administrative decision-maker or delegate performing a statutory function. The remedy of certiorari in administrative law is an aspect of the courts’ supervisory jurisdiction over statutory and quasi-judicial decision-making. Without a statutory source or a cognizable administrative decision-maker subject to review, there is no basis for the court to quash what is, in substance, an executive policy choice.

The applicants could point to no authority in which certiorari had been granted against the Crown in analogous circumstances. On that footing, the Divisional Court concluded that s. 2(1)1 likewise did not confer jurisdiction to review and quash the policy.

Role of the Charter claims

The applicants also argued that the constitutional dimension of the case, including alleged violations of ss. 6, 7 and 15 of the Charter, should support the exercise of jurisdiction by the Divisional Court. They relied on their pleaded Charter remedies as a further basis for declaratory relief.

Justice O’Brien rejected this approach, holding that the presence of Charter issues cannot expand the Divisional Court’s jurisdiction beyond what is conferred by statute. The court cited its recent decision in Apitipi Anicinapek Nation v. Ontario, which reaffirmed that the Divisional Court’s status as a branch of the Superior Court of Justice does not import the Superior Court’s inherent jurisdiction over all constitutional matters. Absent a statutory basis under the JRPA, the Divisional Court cannot adjudicate free-standing constitutional challenges to government policy.

In this case, there was no need to transfer the Charter challenge to the Superior Court, because counsel for the applicants had already commenced a separate rule 14.05 application there on behalf of different applicants but challenging the same residency policy on the same constitutional grounds and supported by much of the same evidentiary record. That Superior Court application was already scheduled to proceed on December 1, 2025.

Outcome and implications

Having found that neither s. 2(1)1 nor s. 2(1)2 of the JRPA supplied jurisdiction over the policy, the Divisional Court concluded that it had no authority to entertain the judicial review application and, by extension, no power to grant the requested stay. Justice O’Brien therefore dismissed the motion for a stay and lifted the interim interim order that had temporarily suspended the policy to preserve the applicants’ rights at the time of the CaRMS deadline.

The court did not, at this stage, strike or quash the underlying application for judicial review; instead, it directed the applicants to advise by January 9, 2026 whether they intended to continue pursuing the application, and, if not, to file a notice of abandonment. No party sought costs of the motion, and the court accordingly made no order as to costs. As a result, the successful parties on this motion were the respondents, the Minister of Health and the Attorney General of Ontario, and there was no monetary award, no damages and no costs ordered in their favour; the total amount granted was therefore nil, and any further monetary consequences, if any, cannot be determined from this decision alone.