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Judicial Review - Public v Private (7). Khorsand v. Toronto Police Services Board
In Khorsand v. Toronto Police Services Board (Ont CA, 2024) the Ontario Court of Appeal allows an appeal of an earlier successful JR against a "security screening decision ... for employment as a special constable with the TCHC".
Here the court considers the JR justiciability of such a decision in light of the public-private dichotomy, contrasting the leading Air Canada and Wall cases:(a) Application of the Air Canada factors
[42] The majority characterized the pre-screening background check that stopped Mr. Khorsand’s application to the TCHC from proceeding as a decision of the TPS Board that was sufficiently public to be judicially reviewable pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. In reaching this conclusion, the majority applied the following eight factors from Air Canada:. The character of the matter for which judicial 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. [43] The majority concluded that these factors pointed to the pre-screening decision being of a sufficiently public nature to attract a public law remedy.
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(1) Wall and the availability of judicial review
[63] The purpose of judicial review is to ensure the legality of state decision making: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 13. It is a public law concept that allows s. 96 courts[7] to “engage in surveillance” of administrative decision makers to ensure that they respect the rule of law: Wall, at para. 13, citing Knox v. Conservative Party of Canada, 2007 ABCA 295, 422 A.R. 29, at para. 14, leave to appeal refused, [2007] S.C.C.A. No. 567.
[64] In Wall, the Supreme Court confirmed that judicial review is available only where two conditions are met: (1) there is an “exercise of state authority”; and (2) that exercise of state authority is of a “sufficiently public character”: para. 14. In setting out these requirements, Rowe J. explained that even public bodies make some decisions that are private in nature and thus not subject to judicial review: at para. 14.
[65] These two requirements have been helpfully explored in an article by Professor Derek McKee: “The Boundaries of Judicial Review Since Highwood Congregation of Jehovah’s Witnesses v. Wall” (2021) 47:1 Queen’s L.J. 112 (“The Boundaries of Judicial Review”). In this article, Professor McKee reads Wall as imposing both an institutional criterion (“identity of the decision maker”) and a functional criterion (the decision must be “public” in nature) in determining whether a decision is subject to judicial review. He suggests the following, at p. 117:[Rowe J.] appears to set out two requirements. The first is an institutional criterion, related to the identity of the decision maker. Justice Rowe writes that “judicial review is aimed at government decision makers. He is at pains to distinguish decisions made by “public bodies” or “the administrative state” from those made by “private bodies” or “voluntary associations”. The second is a functional criterion. Justice Rowe emphasizes that the decision in question must be public as well. He notes that “[e]ven 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.” This structure implies a two-part test: the judge must characterize the institution in question and then characterize the function; if either of these is private, judicial review is excluded. [Footnotes omitted; emphasis added.] [66] In other words, it is not enough that the decision maker is public – the decision in question must also be sufficiently public.
(2) Applicability of the Air Canada factors post-Wall
[67] Prior to Wall, this court applied the Air Canada factors in determining whether a decision was subject to judicial review: see Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481. Since Wall, legal commentators have expressed different views on whether the Air Canada factors have any continuing applicability in determining whether a decision is judicially reviewable outside of the Federal Court’s distinctive statutory context, which Rowe J. noted is what the factors “actually dealt with”: Wall, at para. 21.
[68] For example, Professor Paul Daly has stated that Wall gave Air Canada a “narrow interpretation” and so “potentially deprived Canadian courts of a very useful set of factors… to perform the difficult task of separating ‘public’ from ‘private’ matters”: “Right and Wrong on the Scope of Judicial Review: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall” (2018) 31 Can. J. Admin. L. & Prac. 339, at p. 343.
[69] Lawyer Mannu Chowdhury has written that Wall could also be interpreted as overturning Air Canada: “A Wall Between the ‘Public’ and the ‘Private’: A Comment on Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall” (2019) 9:2 Western J. of Leg. Studies 1, at p. 17. Either way, he says, Air Canada has been undermined.
[70] Prof. McKee describes Wall’s treatment of Air Canada as “ambivalent”: “The Boundaries of Judicial Review”, at p. 130. He explains, at p. 130:On the one hand, a generous reading might suggest that Rowe J implicitly endorses the use of the Air Canada factors as part of the second step in the public/private analysis… Justice Rowe certainly says nothing that would directly negate such a reading. On the other hand, Rowe J does not explicitly endorse Air Canada. In his reference to the case, Rowe J implies that Stratas JA’s analysis was limited to determining whether the TPA had been acting as a “federal board, commission or other tribunal” for the purposes of the Federal Courts Act. Such a reading would in principle limit Air Canada’s application to the federal courts. [Footnote omitted; emphasis added.] [71] Lawyer Robert Boissonneault, in his article “Wall at Five: A Cautious Defence and a Way Forward”, 36 Can. J. Admin. L. & Prac. 199, at p. 216, suggests that the Air Canada factors may remain relevant in determining whether the nature of a public body’s decision is sufficiently public to be reviewable:[T]o the extent that the Court in Wall rejected the Air Canada test, it did so in the interest of precluding judicial review of private institutions. However, Air Canada may still aid in determining whether the decision of a public institution is sufficiently public to sustain judicial review. [Emphasis in original.] [72] Courts have also diverged in their approaches. Some decisions make no mention of the Air Canada factors, some employ them as a supplement, especially in relation to Wall’s functional criterion, and others, like the Divisional Court’s majority decision below, rely more heavily on them.[8]
[73] In my view, Wall does not preclude reference to the Air Canada factors in teasing out why, at a minimum, the functional criterion is or is not met when determining whether a decision is public or not. In this regard, I agree with what the British Columbia Court of Appeal had to say in Strauss v. North Fraser Pretrial Centre (Deputy Warden of Operations), 2019 BCCA 207, 25 B.C.L.R. (6th) 169, at para. 42:In the end, the [Air Canada] factors are merely guidelines in deciding whether a decision made by a public official or tribunal has a sufficiently public character to be amenable to judicial review. Some will be applicable and important in particular contexts while, in those contexts, others may be irrelevant and unhelpful. [74] In other words, to the extent they have continuing relevance, the Air Canada factors do not operate as a strict test or checklist. In my view, they simply play a helpful role in focusing the court’s attention and reasoning process, especially when analyzing the second criterion from Wall. Indeed, in Air Canada itself, Stratas J.A. acknowledged 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”: at para. 60.
[75] This is all subject to one important caveat. Wall cautions against using the Air Canada factors to transform a private decision into a public one on the basis that a decision impacts or is of significant interest to a broad segment of the public. Rowe J. said the following, at paras. 20-21:The problem with the cases that rely on Setia is that they hold that where a decision has a broad public impact, the decision is of a sufficient public character and is therefore reviewable: 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. These cases fail to distinguish between “public” in a generic sense and “public” in a public law sense. In my view, 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. 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. Again, judicial review is about the legality of state decision making.
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The proposition that private decisions of a public body will not be subject to judicial review does not make the inverse true. Thus it does not follow that "public" decisions of a private body – in the sense that they have some broad import – will be reviewable. The relevant inquiry is whether the legality of state decision making is at issue. [Emphasis added.] [76] This passage makes clear that it is wrong to apply the Air Canada factors to transform the decision of a private actor – such as a church, sports club, or other voluntary association – into a public decision. In my view, the passage also cautions against characterizing a decision of a public body as public in function simply because a broad segment of the public may be interested in or impacted by it. For instance, a government decision to enter into a contract to purchase property may be of significant interest to, and have an impact on, a broad segment of a community; however, that would not transform the contractual decision into a public one. In other words, it is important to distinguish between “public” in the generic sense and “public” in the sense that the legality of state decision making is at play. The court continues [at paras 77-109] to consider these factors on the facts of the case.
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