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Judicial Review - Prerogative Remedies - General [JRPA 2(1)1]. Amaro v. The Chiefs of Ontario
In Amaro v. The Chiefs of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought by the applicant against the refusal of the Chiefs of Ontario ('COO'), "a private voluntary association of First Nations Chiefs in Ontario", which declined "to support his cause and intervene with political advocacy to address the injustice illustrated by his personal experience".
The court considers the public-private distinction in JRs, here in light of the available prerogative remedies [JRPA s.2(1)1]:[4] These reasons will explain why the application for judicial review is dismissed. In summary, this motion is not about the merits of Mr. Amaro’s concerns about the COO’s decision or his goals to achieve policy reform on behalf of all off-reserve First Nations people like him. The barrier to his application is that the COO’s decision as a private voluntary association is not subject to judicial review. The court therefore has no jurisdiction to review the decision. Moreover, the issues raised, and relief sought, by the applicant are not justiciable. The relief sought on this application is demonstrably unsuitable for adjudication and must be dismissed.
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>>>> 1. The decision is not public in nature.
[52] The Divisional Court’s jurisdiction is determined by statute. It has no inherent jurisdiction: Adams, at para. 22. The relief sought in this application for judicial review must fall within s. 2(1) of the JRPA, or it is beyond the jurisdiction of this court: Beaucage, at para. 21.
[53] Section 2(1) of the JRPA provides that on an application for judicial review, the court may grant orders in the nature of mandamus, prohibition, certiorari or for relief by way of declaration. These remedies are available only against exercises of power that are public in character. While the notion of public law defies full and precise definition, the courts use these prerogative remedies to supervise persons and bodies that derive their powers from statute in their performance of functions of a public or governmental nature: Setia v. Appleby College, 2013 ONCA 753, at para. 20; Air Canada v. v. Toronto Port Authority, 2011 FCA 347, at para. 55; Highwood Congregation v. Wall, 2018 SCC 26, at para. 15
[54] The assessment of whether a particular decision is subject to public law and its remedies requires careful consideration and weighing of the relevant circumstances of the particular case informed by the experience of case law. That experience has identified a number of factors relevant to the determination of whether a matter is of sufficient public character to bring it within the jurisdiction of public law: Setia, at para. 33; Beaucage, at paras. 25-26; Trost v. Conservative Party of Canada, 2018 ONSC 2733 (Div. Ct.), at para. 13; Air Canada, at para. 60.
[55] I have considered these factors in all the circumstances of the case and find that the following are material and dispositive to the question. They lead to the conclusion that the COO’s decision does not have sufficient public dimension to which public law remedies can be applied.
[56] The character of this matter for which review is sought is private. At its core, the application challenges the decision of a private association not to pursue the political advocacy agenda requested by the applicant. I acknowledge the applicant’s emphasis that his personal experience only serves as an example of the problem of systemic discrimination experienced by many non-reserve members. Nevertheless, broad public impact is insufficient to bring a decision within the public law sphere for judicial review. Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term. Previous cases that reviewed voluntary association decisions relied on the broad public impact of the decision rather than the narrower question of whether the decision was within the public law sphere. That approach is no longer accepted law: Beaucage, at para. 25. The relevant inquiry is whether the legality of state decision making is at issue: Highwood, at para. 21.
[57] The decision-maker is a private, voluntary, membership-based association that operates pursuant to a charter and with the administrative support of a separate corporate secretariat. It is not a creature of statute. The COO’s mission is to support all First Nations in Ontario as they assert their sovereignty, jurisdiction and their chosen expression of nationhood. It is true that the COO works and engages in advocacy with the provincial and federal governments and the Assembly of First Nations on identified priorities. However, it is not woven into the government network and does not exercise a power as part of that network. A significant role in policy consultations does mean that the COO is a public body or that its decisions are public law decisions: Beaucage, at paras. 38, 46. While the COO plays an important role in public policy, it is not a governmental actor. The COO does not draw its powers from government and does not exercise public responsibilities: Trost, at para. 16.
[58] I accept the respondent’s submission that the COO’s organization is materially like that of the Métis Nation of Ontario, which was closely considered by the Divisional Court in Beaucage on the same question. In finding the Métis Nation of Ontario’s membership decision was not subject to judicial review, the court held that the nature of the organization, its responsibilities and its relationship with government do not transform its decisions into public law decisions subject to judicial review: Beaucage, at para. 44. That rationale applies here with equal force.
[59] The decision itself is the exercise of private discretion. It did not emanate directly from a public source of law such as statute, regulation or order. While the COO plays an important role in public policy, it remains a private actor.
[60] The Divisional Court does not have jurisdiction to review the COO’s decision, and the application is dismissed for the foregoing reasons. . P.C. v. Ontario (Attorney General)
In P.C. v. Ontario (Attorney General) (Ont CA, 2020) the Court of Appeal commented on the role of extraordinary remedies in jurisdictional issues such as mandamus and certiorari:[34] An order in lieu of mandamus may issue to compel a court of limited jurisdiction to exercise its jurisdiction or to discharge a duty. However, it does not compel a court, tribunal, or official to do so in a particular way: Vasarhelyi, at para. 51.
[35] Jurisdiction is concerned with the authority to decide an issue or to discharge a duty, not with the correctness or the nature of the decision made. On subjects within its jurisdiction, a court of limited jurisdiction has the right to be wrong about the construction of a statute or the application of a legal principle. The remedy to correct that error is an appeal, if available, from the final disposition. Applications for orders in lieu of extraordinary remedies, such as mandamus and certiorari, are of no assistance: Vasarhelyi, at para. 52.
[36] Errors in the interpretation of statutory provisions (that are not jurisdictional in nature), as well as mistakes in the admission, exclusion, and assessment of evidence are not jurisdictional in nature, are thus beyond the compass of extraordinary remedies: Vasarhelyi, at para. 53.
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