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Judicial Review - Public v Private (2)

. Laforme v. The Corporation of the Town of Bruce Peninsula

In Laforme v. The Corporation of the Town of Bruce Peninsula (Div Ct, 2021) the Divisional Court considered whether a JR applicant had standing on the concern that the matters were not of a nature so as to be 'amenable' to judicial review:
Issue 2: There is no basis for this Court to quash the Town’s Decision

[63] Besides attacking the Authority’s decision to grant the permit, the applicant asks this Court to find that the Town’s decision to proceed with the project is unreasonable for the following three reasons:
a. The project contravenes section 10 of the Endangered Species Act, 2007;

b. The project contravenes section 15.1.1(1) of the Environmental Assessment Act: and

c. The project contravenes section 24 of the Planning Act;
[64] In my view, none of these is a proper ground for the Court interference.

Endangered Species Act, 2007

[65] Section 10(1) of the Endangered Species Act, 2007 provides that “no person shall damage or destroy the habitat of … an endangered or threatened species”. Section 17(1) of the Endangered Species Act, 2007 gives the Minister the power to grant a permit that authorizes the person to engage in activities prohibited by the Act in certain circumstances. The Act also provides for various forms of enforcement, including by way of a provincial prosecution or an order by the Minister requiring the person to stop engaging in prohibited activities.

[66] In this case, based on his expert evidence, the applicant argues that the Town’s project will harm the piping plover’s habitat and that the Town should be prohibited from proceeding with the project in the absence of a permit.

[67] For its part, the Town argues that the MECP is aware of the project and has decided that a permit is not required. In response to this argument, the applicant takes the position that the Town has not been entirely truthful in its disclosure to the MECP about the potential impact of the project on the piping plover habitat.

[68] In my view, the applicant’s request that the Divisional Court intervene on this issue on the current record misconceives the role of the Court on an application for judicial review. In making this argument, the applicant has not identified a decision made by the Town that is subject to judicial review. As the proponent of the project and as a potential applicant for a permit under the Endangered Species Act, 2007, the Town is not exercising a statutory power amenable to judicial review. Rather, it is in the same position as any private citizen who may be required to apply for a permit to carry out a project that may harm or destroy the habitat of an endangered species. Under the Endangered Species Act, 2007, the decision maker for issuing a permit and for enforcing the Act is the Minister of Environment, Parks and Recreation. At a minimum, an application for judicial review that seeks to prohibit the Town from proceeding with the project without a permit granted under the Endangered Species Act, 2007 should name the Minister as a respondent. In addition, based on the conflicting evidence on the record currently before the Court, it would not be possible or appropriate for this Court to determine whether the Town requires a permit. This is a decision to be made at first instance by the MECP, after which the applicant may have avenues of redress by way of judicial review to the Divisional Court. However, based on the current record, there is no legal or factual basis that warrants this Court granting an order prohibiting the Town from proceeding with the project in the absence of a permit under the Endangered Species Act, 2007. Judicial review is a discretionary remedy and, without the MECP as a named respondent on this application, the Court should decline to make any decision on this issue on the record currently before the Court.

Environmental Assessment Act

[69] The applicant’s argument related to the Environmental Assessment Act is similar to the argument related to the Endangered Species Act, 2007, and it falters for similar reasons.

[70] The applicant relies on section 15.1.1(1) of the Environmental Assessment Act that provides that no person can proceed with an “undertaking” unless the person complies with the environmental assessment process under the Act. Depending on the scope of the “undertaking”, different projects are subject to different levels of scrutiny. In this case, the applicant argues that, given the nature of the project, it falls under Schedule B or C of the Act, which would require a full review process, including extensive public consultation.

[71] The Town argues that this project is exempt from section 15.1.1(1) of the Environmental Assessment Act because it falls within the scope of certain types of municipal projects exempted by the Minister pursuant to an Order-in-Council. Specifically, the Town argues that this project can be categorized as falling within the scope of the Town’s routine road maintenance. Alternatively, even if some degree of consultation is required, the Town argues that it has met its public consultation obligations under Schedule B by receiving comments from members of the public and through its application for a permit to the Authority.

[72] The Environmental Assessment Act is a complex statutory scheme enforced by the MECP. In this case, there is no evidence that the applicant raised the issue of an assessment with the MECP, there is no decision from the MECP on the issue of whether an assessment is required and the MECP has not been named as a respondent to this proceeding. As with the issue of the Endangered Species Act, 2007, the Town is the proponent. It is not clear how this court’s jurisdiction to the grant the relief sought by the applicant is engaged in the absence of a decision or refusal to make a decision by the MECP. Again, without the MECP as a named respondent on this application, the Court should decline to make any decision on this issue on the record currently before the Court.
. Wise Elephant Family Health Team v. Ontario (Minister of Health) [paine, highwood, air canada]

In Wise Elephant Family Health Team v. Ontario (Minister of Health) (Div Ct, 2021) the Divisional Court considered when the termination of a funding arrangement for a medical clinic was sufficiently 'public' to attract application of the JRPA:
[66] There is a preliminary issue to be determined. Ontario submits that this court does not have jurisdiction to hear this application for judicial review under s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) since the issues relate to a private law contractual matter not amenable to judicial review.

[67] 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.
[68] 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….
....

[71] I do not agree that the Minister was exercising a statutory power of decision when terminating the contract. As noted in Paine v. University of Toronto et al. (1981), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 722, “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 a specific power or right to make the very decision in issue”. In this case, while the Minister’s authority to enter contracts is based on ss. 6 and 7 of the MOHLTC Act, the manner of the exercise of the power to contract – including the negotiation of contract terms and the exercise of rights under a contract – are not subject to any constraining statutory requirements. The power to contract is permissive. The MOHLTC Act and its regulations do not dictate how the Minister’s discretion to enter into, negotiate, or terminate contracts is to be exercised.

[72] In any event, 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. Rather, the issue is whether the decision to terminate is (a) an exercise of state authority, and (b) of sufficiently public character that public law remedies are available.

[73] In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 14, the Supreme Court explained the limited reach of public law:
Not all decisions are amenable to judicial review under a superior court’s supervisory jurisdiction. Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character. Even public bodies make some decisions that are private in nature — such as renting premises and hiring staff — and such decisions are not subject to judicial review: Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 52. In making these contractual decisions, the public body is not exercising “a power central to the administrative mandate given to it by Parliament”, but is rather exercising a private power (ibid.). Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.
The Air Canada Factors

[74] The factors that determine whether a decision by a state actor is a public law decision of sufficient public character so as to be subject to judicial review are set out in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 60: see also Highwood Congregation, at para. 21; Weld v. Ottawa Public Library, 2019 ONSC 5358 (Div. Ct.), at para. 14. The court in Air Canada, at para. 60, also held that “[w]hether or not any one factor or a combination of particular factors tips the balance and makes a matter ‘public’ depends on the facts of the case and the overall impression registered upon the Court.” Applying the relevant Air Canada factors, and weighing the overall impression of the case as discussed below, I conclude that the matter is a contract dispute and that public law remedies are not suitable.

[75] The character of the matter for which review is sought. The matter is a private contract for the funding of services. Wise Elephant argues that the decision will be detrimental to the health of Wise Elephant’s vulnerable patient population, thus engaging public law oversight. Although services are provided to members of the public, this does not alter the contractual nature of the relationship between Ontario and the Corporation. Everything government does affects the people of the province: this does not mean that every contract the government enters is a contract engaging the oversight of the court.

[76] The nature of the decision-maker and its responsibilities. Ontario concedes that the decision-maker (the Minister) is public. The Minister has overall responsibility for the health care portfolio. The matter under review, however, is the exercise of a contractual power of termination of a contract with a private party, one of many contracts entered into by the Minister relating to the private delivery of publicly funded health services. Simply because it secures the provision of a public good does not mean that the exercise of rights under the contract by a government actor is to be governed by public law principles.

[77] The extent to which a decision is founded in and shaped by law as opposed to private discretion. The decision to terminate under Article 18.1 of the Agreement was an exercise of discretion in accordance with the terms of the contract, a private law discretion.

[78] The suitability of public law remedies. Wise Elephant seeks to quash the decision and prevent the wind-down of the clinic. The Minister has no obligation to fund Wise Elephant as a matter of public law. The statute is permissive: it allows the Minister to contract for the provision of health services. There is no obligation on the Minister to fund any particular FHT, or to fund any FHT’s if the Minister determined that other methods of health care funding are preferable. In seeking to restrain the ability of the Minister to terminate a contract, Wise Elephant is essentially seeking mandamus – to compel the Minister to fund a private organization using public funds where there is no statutory duty to fund the organization. The Minister’s discretionary decision on a matter of private contracting is not generally one suitable for public law remedies.

[79] The existence of compulsory power. The Minister has no compulsory power over Wise Elephant or its Board, in the way that a Law Society has compulsory powers over its licensees, for example.

[80] An “exceptional” category of cases where the conduct has attained a serious public dimension. Stratas J.A. in Air Canada described this consideration as follows:
Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable: Aga Khan, supra at pages 867 and 873; see also Paul Craig, “Public Law and Control Over Private Power” in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) 196. This may include cases where the existence of fraud, bribery, corruption or a human rights violation transforms the matter from one of private significance to one of great public moment: Irving Shipbuilding, supra at paragraphs 61-62.
. Ahmed v. Crawford and Company [highwood]

In Ahmed v. Crawford and Company (Div Ct, 2020) the Divisional Court considered the public-private division in jurisdiction of judicial review:
[12] The Divisional Court is a statutory court. The Court’s jurisdiction is limited to those matters prescribed by statute.

[13] The Judicial Review Procedure Act, R.S.O. 1990, c. J.1, gives the Court jurisdiction over applications for judicial review. Specifically, section 6(1) provides that, except in the case urgent matters, applications for judicial review are to be heard by the Divisional Court.

[14] In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, at para. 13, the Supreme Court of Canada held that the “purpose of judicial review is to ensure the legality of state decision making… Judicial review is a public law concept that allows s. 96 courts to “engage in surveillance of lower tribunals” in order to ensure that these tribunals respect the rule of law…” In Wall, at para. 14, the Court went on to say that judicial review “is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.” [emphasis added]
. Democracy Watch v. Ontario Integrity Commissioner [setia]

In Democracy Watch v. Ontario Integrity Commissioner (Div Ct, 2020) the Divisional Court considered a judicial review application by a public interest organization of refusals of the Integrity Commissioner and the Conflict of Interest Commissioner to comply with the organization's requests to make formal determinations regarding the conduct of some executive government officials. The Court considered the case from the two issues of standing and justiciability.

The court noted the employment-focussed nature of the PSOA (Public Service of Ontario Act, 2006), the parent law at issue, and considered the availability of judicial review from a public-private perspective [paras 62-64]:
(A) Are Public Law Remedies Available?

61. The relevant factors were described by the Court of Appeal in Setia v. Appleby College[20] and include:
a. the character of the matter for which review is sought;

b. the nature of the decision-maker and its responsibilities;

c. the extent to which a decision is founded in and shaped by law as opposed to private discretion;

d. the body’s relationship to other statutory schemes or other parts of government;

e. the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;

f. the suitability of public law remedies;

g. the existence of a compulsory power;

h. an “exceptional” category of cases where the conduct has attained a serious public dimension.


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