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Judicial Review - Public v Private (8). Salt River First Nation #195 v. Shanks
In Salt River First Nation #195 v. Shanks (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from a JR that set aside a Band Council Resolution that "precluded Mr. Shanks and other members of the First Nation from receiving the per capita distribution to be made to members at that time", which per capital distribution was "paid annually to members from funds held by the First Nation pursuant to a treaty settlement agreement".
The main issue considered on the JR (and this appeal) was whether the Resolution was of a sufficiently public nature to support being JR justiciable:[2] Mr. Shanks brought an application for judicial review challenging the validity of the Band Council Resolution. For reasons cited as Shanks v. Salt River First Nation #195, 2023 FC 690, the Federal Court allowed the application for judicial review and set aside the Band Council Resolution on the ground that it was unreasonable. In reaching this decision the Federal Court rejected the submission of the First Nation that the Court lacked jurisdiction to hear the application. Instead, the Federal Court concluded that when enacting the Band Council Resolution, the Council acted as a "“federal board, commission, or other tribunal”" and that the authority exercised by the Council was of a sufficiently public character to confer jurisdiction on the Federal Court.
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II. Applicable Legislation
[6] Subject to certain exceptions that have no application to this appeal, subsections 18(1) and (3) of the Federal Courts Act R.S.C., 1985, c. F-7 give exclusive, original jurisdiction to the Federal Court to entertain applications for judicial review of decisions of "“any federal board, commission or other tribunal”".
[7] Section 2 of the Federal Courts Act defines the phrase "“federal board, commission or other tribunal”" to mean any entity "“having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown”". Again, this definition is subject to a number of exceptions, none of which apply to this appeal.
III. The Standard of Review
[8] Whether the Federal Court had jurisdiction to judicially review the Band Council Resolution is a question of law, reviewable on the standard of correctness (Anisman v. Canada (Border Services Agency), 2010 FCA 52, at para. 26); (Housen v. Nikolaisen, 2002 SCC 33, at para. 8). This requires the Federal Court to correctly articulate and apply the test for determining whether an entity is acting as a federal board, commission or other tribunal (Innu Nation v. Pokue, 2014 FCA 271, at para 10).
[9] Before turning to the application of the standard of review, nothing in this case turns on any distinction between a board, commission or other tribunal. Therefore, for simplicity, the phrase "“federal board”" will be used in the balance of these reasons and should be read as including reference to a federal commission or other tribunal.
IV. Application of the Standard of Review
A. Applicable Legal Principles
[10] The leading authority with respect to the proper interpretation of the definition of federal board is the decision of this Court in Anisman. There, at paragraph 29, the Court concluded that "“a two-step enquiry”" must be made to determine whether an entity is a federal board. The first enquiry is directed to what jurisdiction or power is being exercised. The second enquiry is directed to the source or origin of the jurisdiction or power that is being exercised. The primary determinant is the source of the entity’s authority. The question is, when acting, was the tribunal empowered by or under federal legislation or by an order made pursuant to a prerogative power of the federal Crown? Neither the nature of the power exercised nor the nature of the body exercising the power are determinative of whether a tribunal falls within the definition.
[11] Subsequent to the decision of this Court in Anisman, the Supreme Court clarified in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018]1 S.C.R. 750, at paragraph 14, that judicial review is only available "“where there is an exercise of state authority and where that exercise is of a sufficiently public character”". The Supreme Court went on to state 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. 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”" (para. 20).
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[21] The jurisprudence of this Court and the Federal Court is to the effect that Band Councils established under the Indian Act are federal boards whose decisions are subject to judicial review when they exercise their powers over band members under a federal statute such as the Indian Act and when the issue involves a matter that is "“public”" in nature: Sebastian v. Saugeen First Nation No. 29 (Council of), 2003 FCA 28, at paragraph 51; Ermineskin First Nation v. Minde, 2008 FCA 52, at para. 33; Horseman v. Horse Lake First Nation, 2013 FCA 159, at para. 6; Buffalocalf v. Nekaneet First Nation, 2024 FCA 127, at para. 19.
E. Was the power exercised of a sufficiently public character so as to make judicial review available?
[25] At paragraphs 33 to 35 of its reasons, the Federal Court considered and rejected the submission of the First Nation that the exercise of power at issue was not public in nature and so was not amenable to judicial review.
[26] The First Nation argues that the Federal Court erred by not conducting a full analysis of the nature of the power exercised in accordance with the factors set out by this Court in Air Canada v. Toronto Port Authority, 2011 FCA 347 at paragraph 60. The First Nation argues that instead the Court over emphasized Council’s status as the government of the First Nation.
[27] This submission requires this Court to consider the nature of the holding in the Air Canada case. In decisions such as Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court restated the principle that relationships that are essentially private in nature are to be redressed by way of the private law not public law. In Air Canada, this Court then directed itself to the question of how to determine where a particular matter falls on the public-private spectrum. At paragraph 60, the Court observed that in determining the public-private issue, all of the circumstances are to be weighed. The Court then went on to enumerate a number of factors relevant to the determination of whether a matter is sufficiently public to bring it within the purview of judicial review. The Court’s listing did not purport to be exhaustive, and the Court noted that whether one factor or a combination of factors operate to tip the balance to make a matter public in nature depends upon the facts of the case.
[28] In the present case, the Federal Court did not cite Air Canada; nor did the Court explicitly review the factors enumerated in Air Canada. This said, the Court did review a number of factors to reach its conclusion that Council was not acting privately when it exercised the power at issue. Particularly, the Court considered that the decision was made following a meeting duly convened within the meaning of subsection 2(3) of the Indian Act, that the decision concerned a payment made pursuant to the terms of the Revenue Account Law, and that the decision to authorize per capita distribution payments was inherently a governance issue relating to the management and disposition of funds from a settlement which was established for the benefit of the First Nation. These facts fall within the scope of factors articulated in Air Canada, particularly: the nature of the decision-maker and its responsibilities, the extent to which the decision is founded and shaped by law as opposed to private discretion, and the character of the matter for which review is sought.
[29] While it would have been preferable for the Court to have specifically referenced the factors articulated by this Court in Air Canada, and while the parties and this Court would have been assisted by an express consideration of those factors, I am not persuaded that the Court committed any reviewable error when it concluded that the impugned Band Council Resolution was of a sufficiently public character to properly attract judicial review.
[30] Applying the factors articulated in Air Canada that are of particular relevance to this case:The character of the Band Council Resolution was not a private, commercial matter. The decision involved the distribution of public funds and flowed from the Revenue Account Law adopted by members of the First Nation and incorporated into the Election Regulations. The fact that compensation was paid to the First Nation as "“personal property”" did not make the Band Council Resolution private in nature.
The decision-maker was the governance body recognized by the Indian Act and the Band Council Resolution was registered with the appropriate Minister.
The decision was not founded in private discretion but rather in the terms of the Treaty Settlement Agreement, the Settlement Trust Agreement, the Revenue Account Law and the Election Regulations. Judicial Review is a suitable public law remedy to challenge the lawfulness of the Band Council Resolution.
[31] It follows that when making per capita payments pursuant to the Revenue Account Law and enacting the Band Council Resolution, Council was not acting in a private capacity. Therefore, the Resolution is subject to judicial review. . 376965 Ontario Limited v. Regional Municipality of Durham Police Service Board
In 376965 Ontario Limited v. Regional Municipality of Durham Police Service Board (Ont Div Ct, 2025) the Ontario Divisional Court allowed a motion to quash a JR, this "seeking to challenge the decision of the Fleet and Quartermaster Services Unit of the Durham Regional Police Service (“DRPS”) to award the 2024 towing service contract to a company other than Jim’s Towing (the “Decision”)".
Here the court extensively considers the law of whether a decision is a 'commercial' (private) one, and not a public one:[3] DRPS has moved for an order quashing Jim’s Towing’s application for want of jurisdiction. DRPS maintains that the decision Jim’s Towing is challenging was a commercial decision – not a public one. The decision was based on the business needs of DRPS, was entirely in the manager’s discretion and was not prescribed by any policies, directives, by-laws, regulations or statutes. The decision is not amenable to judicial review, and thus the application should be quashed.
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General Legal Principles
[29] The Supreme Court in Dunsmuir[5] commented broadly on the function of judicial review, at para. 28:By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [Emphasis added.] [30] More recently, in Wall,[6] the Supreme Court of Canada addressed the limited availability of judicial review. Writing for a unanimous Court, Rowe J. stated that “the purpose of judicial review is to ensure the legality of state decision making.” In keeping with this purpose, he defined the boundaries of judicial review by using the distinction between public and private law. As he explained, at para. 14: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. [Emphasis added.] [31] As noted above, public bodies routinely make decisions that are private in nature, such as renting premises and engaging in contracts for services. The jurisprudence makes clear that in making these contractual decisions, the public body is not exercising “a power central to the administrative mandate given to it by Parliament” and “do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.” As the Court, in Wall, explained at para. 15:Further, while the private law remedies of declaration or injunction may be sought in an application for judicial review, this does not make the reverse true. Public law remedies such as certiorari may not be granted in litigation relating to contractual or property rights between private parties: Knox, at para. 17. Certiorari is only available where the decision-making power at issue has a sufficiently public character: D.J.M. Brown and J.M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 1:2252. [Emphasis added.] [32] In Air Canada v. Toronto Port Authority, [7] Air Canada had sought judicial review of the Toronto Port of Authority’s issuance of two bulletins – the first announcing a process through which the Toronto Port Authority intended to award slots at the City Airport, and the second announcing an RFP process to allocate slots and otherwise grant access to commercial carriers seeking access. The central question was whether the decision to issue the bulletins, and the conduct described in the bulletins, was judicially reviewable.
[33] To assist in determining whether the matter engaged the court’s public law jurisdiction, the Court identified a non-exhaustive list of factors to apply, at para. 60, including:(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 directed, controlled or significantly influenced by a public entity;
(f) the suitability of public law remedies;
(g) the existence of compulsory power; and
(h) an “exceptional” category of cases where the conduct has attained a serious public dimension. 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. [34] The Court explained further:In determining the public-private issue, all of the circumstances must be weighed: Cairns v. Farm Credit Corp., 1991 CanLII 13600 (FC), [1992] 2 F.C. 115 (T.D.); Jackson v. Canada (Attorney General) (1997), 7 Admin. L.R. (3d) 138 (F.C.T.D.). There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether 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. [Emphasis added.] Other Relevant Jurisprudence
[35] The Courts have routinely applied the factors from Air Canada to public tender decisions to find that decisions to award contracts are not judicially reviewable.
[36] In Ainsworth Electric Co.,[8] the Board of Governors of Exhibition Place decided to appoint an in-house electrical contractor from whom all exhibitors would have to purchase electrician services. The Board sought proposals from contractors who wanted to be awarded the contract for the in-house electrical work. The applicant submitted a proposal but was unsuccessful. Since the applicant had previously been contracted by exhibitors to provide electrician services at Exhibition Place, it lost a very substantial amount of business. It launched an application for judicial review. In response, the Board moved to quash that application on the basis of jurisdiction.
[37] The Divisional Court found that it did not have jurisdiction to order certiorari. The Court explained:In this case, the Board, in carrying out its mandate to operate, manage and maintain Exhibition Place, came to the conclusion that there would be only one electrical contractor on its premises, and that it should be someone other than Ainsworth. That was a commercial decision. If that decision amounted to an actionable wrong against Ainsworth, it is a matter for the courts in the ordinary way. But I am unable to find anything in the Judicial Review Procedure Act, or in any of the cases cited by counsel, to suggest that commercial transactions are subject to judicial review. Indeed, the decisions to which I have made reference lead me to the view that the courts have no authority, in the exercise of their prerogative jurisdiction, to review a commercial business decision. [38] In Wauzhushk Omigum Nation,[9] the applicant sought to judicially review decisions of the Ontario Lottery and Gaming Corporation (“OLG”). These decisions were made pursuant to the Ontario Cabinet’s Directive on Modernization, which was issued through a Cabinet Minute and which directed the Ontario Minister of Finance to work with OLG to increase net profits to Ontario by optimizing land-based gaming.[10] Cabinet instructed OLG to shift operations of its gaming sites to private operators through a competitive procurement process.[11] The Divisional Court found that the manner in which OLG, a Crown corporation, chose to seek bids was not subject to judicial review because it was a commercial matter and not a matter of public law.[12] The Court specifically noted at para. 108:To date, a public tender process has not been subject to public law remedies in Ontario: see Bot Construction Limited v. Ontario (Minister of Transportation), 2009 ONCA 879 at para. 19; 2169205 Ontario Inc. v. Ontario (Liquor Control Board), 2011 ONSC 1878 (Div. Ct.) at para. 24; and Grascan Construction Ltd. v. Metrolinx, 2017 ONSC 6424 (Div. Ct.) at paras. 91 and 104. [39] In Wise Elephant,[13] Wise Elephant Family Health Team was an interdisciplinary team of health care professionals providing community-based health services in Brampton. It sought to judicially review the decision of the Ontario Minister of Health and Long-Term Care terminating its funding agreement. Wise Elephant argued that Ontario’s decision to terminate the agreement was made in bad faith and for an improper purpose: to cover up fraud by Wise Elephant’s former Board of Directors, and to avoid scrutiny of Ontario’s negligence in failing to stop the fraud.[14]
[40] Again, the Court dismissed the judicial review application on the basis that the decision to terminate the funding agreement was not a public one.[15]
[41] In Khorsand,[16] the Ontario Court of Appeal dealt with a 2021 security screening decision made by the Toronto Police Service (“TPS”) at the request of the Toronto Community Housing Corporation (“TCHC”) in connection with an application for employment as a special constable with the TCHC.
[42] As part of the TCHC application process, Mr. Khorsand was required to pass a background investigation to be conducted by the TPS. Mr. Khorsand was advised that the TCHC was unable to move forward with his application because he “did not pass the pre-screen background check with TPS.”
[43] Mr. Khorsand asked both the TPS and the TCHC for information about why he failed the pre-screening process. He also made an access to information request to the TPS pursuant to the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 (“MFIPPA”). The disclosed records included reports relating to nine interactions between Mr. Khorsand and the TPS. None of the reports revealed any criminal behaviour on the part of Mr. Khorsand. Three reports described Mr. Khorsand as “Brown”, “Middle Eastern”, or “Persian”.
[44] Mr. Khorsand challenged the TPS pre-screening decision and its decision not to disclose reasons or information relied upon in making that decision. Mr. Khorsand alleged those decisions violated the administrative law duty of procedural fairness.
[45] In assessing the suitability of public law remedies, the majority of the Divisional Court pointed to a concern about systemic discrimination. Specifically, the majority noted that absolute discretion may be abused in a way that affects the public at large and a public law remedy through judicial review may be the only available recourse. The Divisional Court concluded the decision was subject to judicial review.
[46] In reversing the decision of the Divisional Court, the Ontario Court of Appeal held that the pre-screening decision was part and parcel of a discretionary employment decision which drew it into the private sphere and accordingly the decision was not judicially reviewable.[17]
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[50] I agree with the Applicant that the public law remedies giving relief in the nature of the prerogative writs are not dependent on the presence of a statutory power of decision.[18]
[51] I also accept that cases involving clear corruption could elevate a public procurement process into the “exceptional” category so as to engage this Court’s jurisdiction to review the conduct at issue. As Stratas JJ.A. explained in Air Canada: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. [Emphasis added.][19] [52] That said, not every case which has public aspects will engage the Court’s public law jurisdiction. Nor will every allegation of impropriety transform a commercial matter into a public concern.
[53] In determining whether the court’s jurisdiction is engaged, the assessment looks at the essential character of the matter for which the review is sought. Is it a private, commercial matter, or is it of broader import to members of the public? As explained in Air Canada, “administrative law principles should not be applied to the resolution of what is, essentially, a matter of private commercial law”.[20]
[54] Government contracts routinely involve the payment of public funds towards public initiatives and services. These services will also routinely have a significant impact on public welfare in some way. That does not mean these types of decisions will engage the Court’s public law jurisdiction. As the Court explained in Khorsand, at para. 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. [Emphasis added.] ....
[61] Jim’s Towing has alleged a denial of procedural fairness, suggesting that Mr. DeMerchant’s decision was tainted by alleged bias on the part of DC Hood. The evidence filed on the motion, however, makes clear that DC Hood had no part or influence in Mr. DeMerchant’s decision in awarding the contracts. The only involvement DC Hood had was in assessing the tow truck drivers’/operators’ compliance with the TSSEA requirements.
[62] In any event, a denial of procedural fairness would not grant this Court judicial review jurisdiction if, based on Wall and the Air Canada factors, no jurisdiction existed. As addressed in Khorsand, the Applicant cannot transform a private matter into a public one by alleging a breach of procedural fairness. . Eritrean Cultural Centre v. Toronto (City)
In Eritrean Cultural Centre v. Toronto (City) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR brought against a municipality, here where the municipality "revoked the Special Event Permit “as a result of violent events that have unfolded in relation to your organization’s permitted time at Earlscourt Park” and because the situation had “become a matter of public safety”".
The court cites doctrine on the public-private distinction, here in a JR context (though the matter was not decided):1. Is the Decision Amenable to Judicial Review?
[12] Toronto argues that the City’s decision to withdraw a permit is not subject to judicial review because the impugned decision was not of a sufficiently public nature to engage the court’s judicial review jurisdiction (Toronto Factum, paras. 36-43). As stated by McLachlin J. (as she then was) in Committee for the Commonwealth of Canada v. Ontario, 1991 CanLII 119 (SCC), [1991] 1 SCR 139, para. 263: “[u]nder the Civil Code of Quebec (or the common law of other provinces) the Crown as property owner is entitled to withdraw permission from an invitee to be present on its property, subject always to the Charter.”
[13] In advancing this argument, Toronto states, at para. 41 of its Factum:The City’s permission at issue concerns only the private use of the Park and expressly does not relate to the public use of the Park. For example, the City did not set new rules as to how the public can use the park as a public park on an ongoing basis, as was the case in Ross v. City of Toronto [2012 ONSC 5947, para. 36] cited by the applicants. [14] The “public/private” categories – fundamental to the justiciability issue here – are undoubtedly fraught near the edges of the categories. Here, the Applicants obtained a permit from the City for an event to which “the public” was invited. A permitting process has been established by the City, and the Applicants argue that the City failed to follow the process it had established. Only one case cited by the City would appear to have direct application to the facts of this case: Redeemed Christian Church of God v. New Westminster (City), 2021 BCSC 1401, 55 BCLR (6th) 158, which is persuasive, but not binding, authority in this court.
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