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Judicial Review - Prerogative Writs - Certiorari. Vervoort et al v. Minister of Health et al
In Vervoort et al v. Minister of Health et al (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought to "challenge the recent Ontario government policy affecting his eligibility for medical residency".
The court considers it's JR 'certiorari' jurisdiction, here in this policy challenge:[22] The applicants’ second argument is that the court has jurisdiction under s. 2(1)1 of the JRPA. The applicants are seeking an order in the nature of certiorari, to have the policy quashed. While the court is authorized to order certiorari under s. 2(1)1, after careful review, I accept the respondents’ submission that such an order cannot be made against the Crown in these circumstances.
[23] There is limited jurisprudence addressing this issue, but the restriction on orders for certiorari against the Crown arises from fundamental principles of administrative law. The authority of the court to issue administrative orders against the Crown arises where the court is exercising supervision over a statutory function. This can be either because the Crown is exercising a statutory power or because the remedy is sought against a “delegate” of the Crown, such as an administrative decision-maker. Absent those circumstances, the court cannot exercise authority by certiorari against the Crown or its agent: Minister of Finance of British Columbia v. The King, 1935 CanLII 351, ]1935] SCR 278; Carrier-Sekani Tribal Council v. Canada (Minister of Environment), 1992 CanLII 14388 (FCA), [1992] 3 FC 316, at p. 331; Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244, at para. 22; Ontario Public Service Employees Union v. Ontario (Attorney General), [1995] CanLII 10637 (ON SC), (1995), 1995 CanLII 10637 (ON SC), 26 O.R. (3d) 740.
[24] In this case, the Minister was neither acting pursuant to a specific statutory power, nor was she a delegated decision maker. The applicants have not pointed the court to any authority where certiorari was granted against the Crown in these circumstances. I conclude that the remedy of certiorari is not available. . West Whitby Landowners Group Inc. v. Elexicon Energy Inc.
In West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of a JR regarding "whether an intervention by the Ontario Energy Board (the “OEB” or the “Board”) in a cost-sharing dispute between a group of real estate developers in Whitby, Ontario, and the licensed monopoly distributor of electricity in that region, is judicially reviewable".
Here the court considers the JR availability of certiorari [JRPA s.2(1)1]:a. When is a remedy in the nature of certiorari available under the JRPA?
[31] In its application to the Divisional Court, the appellant sought an order in the nature of certiorari under s. 2(1)1.
[32] In Martineau v. Matsqui Institution, 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602, Dickson J. (as he then was, concurring in the result) explained, at p. 628, that the remedy of certiorari is available to supervise “the machinery of government decision-making” by quashing unlawful state action. It is available against “any public body with the power to decide any matter affecting the rights, interests, property, privileges or liberty of any person.” However, the JRPA does not elaborate on when an order in the nature of certiorari is available.
[33] This court, in Ontario Place Protectors v. Ontario, 2025 ONCA 183, 175 O.R. (3d) 561, interpreted s. 2 as encompassing two alternative forms of relief, stating, at para. 34, that the JRPA:[P]ermits a single application to be brought for relief in the nature of the prerogative writs – mandamus, prohibition, and certiorari, the forms of relief historically available to control the exercise of public authority. In addition, declarations and injunctions may be granted on an application for judicial review where the exercise of a “statutory power of decision” is concerned. [34] The availability of certiorari is not linked directly to the question of whether the impugned decision constituted an exercise of a statutory power of decision within the meaning of ss. 1 and 2(1)2 of the JRPA. As this court explained in Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, at para. 30:[W]hile early judicial interpretations of the JRPA linked the availability of relief in the nature of the prerogative writs under s. 2(1)1 to the requirement of a statutory power of decision under s. 2(1)2, that approach was not sustainable, and has since been clearly rejected. [35] The Divisional Court reiterated this point in Biztech v. Accreditation Canada, 2025 ONSC 2689 (Div. Ct.), concluding, at para. 61, that “[j]urisdiction to issue an order in the nature of certiorari under s. 2(1)1 of the JRPA is not limited to statutory powers of decision, and not all statutory powers of decision are subject to judicial review.”
[36] Rather, in each case, determining the availability of an order in the nature of certiorari depends on whether the impugned decision is of a sufficiently public character to warrant a public law remedy: Khorsand, at paras. 63-76.
[37] Broadly speaking, as this court affirmed in Khorsand, “[t]he purpose of judicial review is to ensure the legality of state decision making”: at para. 63, citing Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 13.
[38] In Wall, the Supreme Court confirmed that judicial review is available only where there is an “exercise of state authority” that is of a “sufficiently public character”: at para. 14. In setting out these requirements, Rowe J. underscored that public bodies may make decisions that are private in nature and that, accordingly, are not subject to judicial review: at para. 14.
[39] Given the absence of statutorily-prescribed factors determining the availability of an order in the nature of certiorari, courts have often turned to the common law, and specifically the Air Canada factors: see e.g., The Conservative Party of Canada v. Trost, 2018 ONSC 2230 (Div. Ct.), leave to appeal to Ont. C.A. refused, M49223 (September 21, 2018). While these factors were developed to assist the Federal Courts in navigating the public/private distinction in their particular statutory context – a limitation emphasized by Rowe J. in Wall, at para. 21 – they have been adopted as a guide more broadly to assist courts in determining whether a decision is of sufficiently public character to be amenable to judicial review, and thus the remedy of certiorari: see Khorsand, at para. 73; and Strauss v. North Fraser Pretrial Centre (Deputy Warden of Operations), 2019 BCCA 207, 435 D.L.R. (4th) 111, at para. 42.
[40] The Air Canada factors may be stated as follows:. The character of the matter for which review is sought;
. The nature of the decision maker and its responsibilities;
. The extent to which a decision is founded in and shaped by law as opposed to private discretion;
. The decision-making body’s relationship to other statutory schemes or other parts of government;
. The extent to which a decision maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
. The suitability of public law remedies; and
. Whether the decision belongs to an “exceptional” category of cases where the conduct has attained a serious public dimension: at para. 60. [41] The reliance on the Air Canada factors after Wall is subject to an important caveat. They cannot be used to transform a private decision into a public one on the basis that the decision impacts a significant interest or a broad segment of the public: Khorsand, at para. 75. Indeed, in Wall, Rowe J. criticized the cases that relied on Setia for suggesting that where a decision has a broad public impact, it may be reviewable: Wall, at para. 20, citing Graff v. New Democratic Party, 2017 ONSC 3578, 28 Admin. L.R. (6th) 294 (Div. Ct.), at para. 18; West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, 327 O.A.C. 29 (Div. Ct.), at para. 24. As Rowe J. emphasized in Wall, these cases failed to distinguish between “public” in a generic sense and “public” in a public law sense. The fact that a decision engages the public’s interest does not transform it from a private to a public case for the purposes of the availability of certiorari.
[42] In Khorsand, Fairburn A.C.J.O. held, at para. 75, that “a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power”: citing Wall, at para. 20. She went on to say that a decision is not public simply because it “impacts or is of significant interest to a broad segment of the public”: at para. 75. In order for a decision to be public “in the administrative law sense”, it must engage “the legality of state decision making”: Khorsand, at para. 75, citing Wall, at para. 20. The Air Canada factors thus may be relevant to the extent they shed light on the ultimate question of whether a state actor’s decision is of sufficiently public character to attract public law remedies such as certiorari: Khorsand, at para. 73. However, they are not a “strict test or checklist”: Khorsand, at para. 74.
[43] In summary, three principles can be derived from the JRPA and the cases of Wall, Khorsand, and Air Canada. First, because judicial review is about supervising the legality of state decision making, the ultimate question in determining its availability is whether a state actor has exercised a public power. Second, this question can be answered in one of two ways under the JRPA. One, by asking whether a remedy in the nature of certiorari is available under s. 2(1)1. Two, by asking whether a decision maker exercised a statutory power of decision pursuant to s. 2(1)2. Third, in determining whether a remedy in the nature of certiorari is available, courts may be guided by the Air Canada factors. . Ledsham v. Hanna et al
In Ledsham v. Hanna et al (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion "for an extension of time to file a judicial review" against various criminal decisions:[13] In this case, Mr. Ledsham’s motion must be dismissed based on the first concern raised by the court. The Divisional Court does not have jurisdiction to review the orders of Justice Hanna. Criminal law falls within federal jurisdiction. The rules for the appeal of criminal matters are found in the Criminal Appeal Rules, which are made under the Criminal Code, R.S.C. 1985, c. C-46. Part XXVI of the Criminal Code also tightly limits the availability of certiorari. An application for certiorari is brought to a single judge of the Superior Court. The Divisional Court’s judicial review powers arise from the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, which is provincial legislation and which does not provide any authority for the judges of the Divisional Court to review criminal orders outside of the usual criminal process. The Divisional Court therefore plainly does not have jurisdiction to review criminal orders from the Ontario Court of Justice.
[14] Mr. Ledsham cites R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 for the proposition that judicial review is available where a lower court exceeds its jurisdiction or denies procedural fairness. But that case involved an application for certiorari to a single judge of the Superior Court of Justice. It did not involve review by the Divisional Court and does not say anything about the jurisdiction of the Divisional Court. . BizTech v. Accreditation Canada
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court sets out basics of the availability of judicial review, here in light of the 'statutory power' and 'statutory power of decision' concepts used in the JRPA:E. THE AVAILABILITY OF JUDICIAL REVIEW
[57] CMRITO and Accreditation Canada raise a preliminary issue of jurisdiction. They submit that the Decision is a private contractual matter and not amenable to judicial review: Astro Zodiac Enterprises Ltd. v. Exhibition Place (Board of Governors), 2022 ONSC 1175 (Div. Ct.), 28 M.P.L.R. (6th) 20, at paras. 22-37.
[58] BizTech responds that Accreditation Canada exercised a “statutory power of decision” as defined in s. 1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”).
[59] Subsection 2(1) of the JRPA sets out this court’s jurisdiction to hear an application for judicial review:2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may ... grant any relief that the applicant would be entitled to in any one or more of the following:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. [60] Section 1 of the JRPA defines “statutory power” to include a power or right conferred by or under a statute “to exercise a statutory power of decision.” “Statutory power of decision” is defined in s. 1 to mean a power or right conferred by or under a statute to make a decision deciding or prescribing;(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not ... . [61] A statutory power of decision is required before the remedy of a declaration can be ordered. While this remedy is included in their Notice of Application, the effective remedy BizTech seeks is the quashing of Accreditation Canada’s decision not to accredit the DMS program. Jurisdiction to issue an order in the nature of certiorari under s. 2(1)1 of the JRPA is not limited to statutory powers of decision, and not all statutory powers of decision are subject to judicial review.
[62] Hence, it is not necessary to show that Accreditation Canada has exercised a statutory power of decision: Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, at paras. 29-32. Rather, the fundamental issue is whether the decision to terminate accreditation is (a) an exercise of state authority, and (b) of sufficiently public character that public law remedies are available: Wise Elephant Family Health Team v. Ontario (Ministry of Health), 2021 ONSC 3350 (Div. Ct.), at para. 72.
[63] Judicial review is only available when “there is an exercise of state authority and where that exercise is of a sufficiently public character”: Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 14. . Endicott v Independent Police Review Director
In Endicott v Independent Police Review Director (Ont CA, 2014) the Court of Appeal comments on certiorari:[43] I view the extent of the material ordered by the Divisional Court and the list proposed by the respondent to be overly broad and unnecessarily detailed. It is well settled that the starting point for defining what a record of proceeding is to contain when no statutory definition is provided is the decision of Denning L.J. in R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1951), [1952] 1 K.B. 338 (Eng. C.A.), at pp. 351-52. There Denning L.J. stated that:…throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What, then, is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings … I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision. [44] The statement was expanded upon by Sharpe J.A., writing for the majority in Payne v. Ontario Human Rights Commission (2000), 2000 CanLII 5731 (ON CA), 192 D.L.R. (4th) 315, wherein he stated, at para. 161:An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court’s inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed. As stated by Denning L.J. in R. v. Medical Appeal Tribunal, Ex parte Gilmore, [1957] 1 Q.B. 574 (Eng. C.A.) at 583:The court has always had power to order an inferior tribunal to complete the record … [A] tribunal could defeat a writ of certiorari unless the courts could order them to complete or correct an imperfect record. So the courts have the power to give such an order. . Michalski v. McMaster University
In Michalski v. McMaster University (Div Ct, 2022) the Divisional Court considers a judicial review challenging a university's COVID vaccination policy. During this it considered the distinction between the prerogative writs [JRPA 2(1)1] and remedies for a statutory power of decision [JRPA 2(1)2]. It ultimately denied relief on discretionary grounds ["may": JRPA 2(1)]:[55] A brief discussion of the Court’s jurisdiction to hear the Application is in order before addressing the Applicants’ grounds for judicial review.
[56] Subsection 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.11 (“JRPA”) states:On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. [57] Subsection 1(1) of the JRPA defines “statutory power of decision” to mean,a power or right, conferred by or under a statute, to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party; or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not. [58] The Applicants submit that this Court has jurisdiction under s.2(1)2 of the JRPA to review the Validation Team’s decisions to deny them exemptions from the university’s mandatory vaccination policy. McMaster disputes that the impugned decisions were an exercise of a statutory power. McMaster does not contest this Court’s jurisdiction to review the decisions, but it argues that jurisdiction derives from s.2(1)1 of the JRPA because the decisions are of a kind that is reached by public law and to which a public law remedy can be applied: Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, at paras. 24 and 32.
[59] The Applicants’ submissions on jurisdiction may be summarized as follows. McMaster is a statutory body governed by An Act Respecting McMaster University (The McMaster University Act, 1976), as amended by Bill 173, Chapter 5, S.O. 2016. McMaster developed and adopted its vaccination policy in conformity with instructions issued by Ontario’s Chief Medical Officer of Health pursuant to a Regulation under the Reopening Ontario Act, 2020. McMaster’s President delegated to the Validation Team administrative and decision-making powers with respect to the evaluation of student requests for exemption from the vaccine mandate based on non-medical human rights grounds. The decision-makers who rejected the Applicants’ exemption requests were therefore exercising delegated statutory powers when they made decisions about the Applicants’ on-campus privileges and eligibility to continue to receive the benefit of their education at McMaster.
[60] This argument is not supported by the jurisprudence on the interpretation of s. 2(1)2 the JRPA. The Court of Appeal for Ontario has ruled that “it is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in the exercise of a ‘statutory power of decision’; and … that must be a specific power or right to make the very decision in issue”: Paine v. University of Toronto (1982), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.) at p.5.
[61] While it is arguable that McMaster’s adoption of its mandatory vaccination policy was an exercise of a specific statutory power of decision conferred by Regulation enacted under the Reopening Ontario Act, 2020, that issue is not before this Court because the Applicants abandoned their requests for injunctive and declaratory relief, and for an order quashing the policy. Their focus is now on quashing the Validation Team’s decisions to deny their exemption requests. They have pointed to no statute (or Regulation) that confers a specific power to make those decisions.
[62] The McMaster University Act, 1976 grants the university’s Board of Governors and Senate broad powers to adopt certain policies. It also grants McMaster’s President powers to implement university policies, but it does not explicitly address vaccination policies. Moreover, neither the university’s governing statute nor the Reopening Ontario Act, 2020 (nor any Regulations enacted pursuant to either of those laws) confers on the President a specific power to make the very decisions at issue in this case, namely whether students have established a creed-based entitlement to an exemption from the vaccine mandate. The Validation Team’s impugned decisions therefore do not constitute an exercise of a statutory power delegated from the President.
[63] The Court’s jurisdiction to make the requested order quashing the impugned decisions does not, however, depend on the Applicants establishing that the Validation Team exercised a statutory power of decision within the meaning of s. 2(1)2 of the JRPA. We agree with McMaster’s submission that the Court can take jurisdiction over the Application and may grant an order quashing the impugned decisions because the judicial review application raises issues of a public nature, and the relief sought (certiorari) is one of the prerogative writs set out in s. 2(1)1 of the JRPA. It is unnecessary to review the relevant factors leading to the Court’s determination that this matter is sufficiently public in character to bring it within the purview of public law because the parties agree that it has a sufficient public dimension.
[64] The Court therefore has jurisdiction to review the Validation Team’s impugned decisions on their merits and to order the relief sought by the Applicants. The exercise of that jurisdiction is, however, within the discretion of the Court. The permissive language in s.2(1)1 of the JRPA (“the court may … by order grant any relief”) continues the longstanding discretionary nature of judicial review and of certiorari as a prerogative remedy: Strickland v. Canada (Attorney-General), 2015 SCC 37, [2015] 2 S.C.R. 713, at paras. 37-38. . Thales DIS Canada Inc. v. Ontario
In Thales DIS Canada Inc. v. Ontario (Div Court, 2022) the Divisional Court considers whether and how a decision of the Director, Program and Policy Enablement (the “Director”), Supply Chain Ontario (“SCO”) of the Ministry of Government and Consumer Services, which interpretated international trade treaties, is judicially reviewable under Ontario law:[74] Thales seeks judicial review of the Decision to dismiss Thales’ complaint pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 [“JRPA”]. Section 2 of the JRPA states as follows:Applications for judicial review
2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[75] While s. 2(1)2 requires the exercise of a statutory power where a declaration or injunction is sought, there is no such requirement under s. 2(1)1 for the public law remedies of certiorari, mandamus or prohibition.
[76] The Decision is an exercise of state decision-making authority of a sufficiently public character, and is thus subject to judicial review: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 13. However, given that the SCO process was not created by statute and is not governed by a statutory regime, an SCO decision does not constitute the exercise of a statutory power or a statutory power of decision as defined in the JRPA. Therefore, only the relief in s. 2(1)1, that is, relief in the nature of certiorari, mandamus or prohibition, is available.
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What is the Appropriate Relief?
[137] While Thales seeks declaratory relief, as set out above, a declaration is only available in relation to the exercise, refusal to exercise or purported exercise of, a statutory power of decision: Daneshvar v. Ontario, 2021 ONSC 3186 (Div. Ct.), at paras. 28-31. As noted above, the Decision does not result from the exercise of a statutory power of decision. As a result, declaratory relief is not available in the circumstances of this case. Similarly, mandatory relief is only available where there is a statutory duty to act and the government fails to do so: Apotex Inc. v. Canada, 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (C.A.), aff’d 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100.
[138] As a result, in respect of the Decision, the appropriate relief is in the nature of certiorari, under s. 2(1)2 of the JRPA. The Decision must be set aside. Based on my analysis of the reasonableness of the Decision, it is clear that the only reasonable conclusion that the Director could have reached on the record before her is that the domestic production requirement contravened the CETA. In the circumstances, it would serve no useful purpose to remit the matter back to the Director. . West Whitby Landowners Group Inc. v. Elixicon Energy
In West Whitby Landowners Group Inc. v. Elixicon Energy (Div Ct, 2022) the Divisional Court considered whether a statutory power of decision has occured, in this case focussing on the public nature of the acts:[34] Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, provides that on an application for judicial review, the Divisional Court can grant an “order in the nature of mandamus, prohibition or certiorari” or a declaration “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”.
[35] In this case, WWLG seeks an order in the nature of certiorari. As held in Martineau v. Matsqui Institution, 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602, at p. 628:Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers. [36] As held by this Court in Trost v. Conservative Party of Canada, 2018 ONSC 2733, at para. 11, the Judicial Review Procedure Act does not specify when certiorari may be available, so it is necessary to turn to common law principles to decide that issue. In such cases, the courts look at the list of factors set out by the Federal Court of Appeal in Air Canada v. Toronto Port Authority, 2011 FCA 347, at para. 34, to determine whether a decision is of sufficient public character to engage public law remedies such as certiorari. As described in Trost, at para. 13, these factors are as follows:-- the character of the matter for which review is sought;
-- the nature of the decision-maker and its responsibilities;
-- the extent to which a decision is founded in and shaped by law as opposed to private discretion;
-- the body's relationship to other statutory schemes or other parts of government;
-- the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
-- the suitability of public law remedies;
-- the existence of a compulsory power;
-- an "exceptional" category of cases where the conduct has attained a serious public dimension [37] In my view, the OEB’s opinion regarding whether the MS16 is an expansion or an enhancement is not a decision giving rise to the public law remedy of certiarori. While the OEB is a public body that makes many decisions of a public character, in this case, the first factor, namely the character of the matter, weighs heavily against the availability of public law remedies. The parties sought the opinion for the purpose of resolving their private dispute. The fact that they agreed to be bound by the OEB’s opinion does not turn the opinion into a decision of a public character. Ultimately, the only decision made by the OEB was not to refer the matter for further investigation or not to make an order against Elexicon which, as reviewed above, is a decision that WWLG does not have standing to challenge.
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