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JR - Standing - Associations. The Ontario Health Coalition v. Ontario (Minister of Long-Term Care)
In The Ontario Health Coalition v. Ontario (Minister of Long-Term Care) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this from "the June 14, 2023 decision of the Minister of Long-Term Care (the “Minister”) to approve funding and undertake to issue a licence for a new 320 bed long-term care home in Pickering, Ontario".
Here the considers the 'association' status of the applicant in a JR standing context:[61] The OHC is a long-standing public interest advocacy group representing more than 500 member organizations, and, if it had the legal capacity to commence this Application, might well qualify as having a genuine interest in the matter at issue. The OHC is, however, an unincorporated coalition; it is not a juridical person and therefore lacks the legal capacity to commence this Application: Ontario Health Coalition and Advocacy Centre for the Elderly v. His Majesty the King in Right of Ontario, 2025 ONSC 415, at paras. 32-39.
[62] After this case was argued, Centa J. released his decision in Ontario Health Coalition, an application challenging the constitutional validity of certain provisions of the More Beds, Better Care Act, 2022, S.O. 2022, c. 16 (referred to in the decision as “Bill 7”).
[63] Centa J. held that the OHC was not a juridical person and did not have the legal capacity to commence the application. He stated, at para. 33:To have legal capacity to commence or continue this application, the [Ontario Health] Coalition must be a natural person, a corporation, or a body that has been given that capacity by statute. The Coalition is none of those things. It is an unincorporated association, which has no legal status apart from its individual members and cannot sue or be sued as an entity absent legislation providing otherwise. [Footnotes omitted.] [64] In reaching this conclusion, Centa J. distinguished between cases in which unincorporated associations wish to participate as an intervener rather than the party commencing the proceeding. After reviewing the relevant cases, he stated, at paras. 36-38:However, in each of these cases, the court distinguished between permitting an unincorporated association to participate in a civil proceeding as an intervener and permitting an unincorporated association to commence a proceeding. Chief Justice Dubin noted that it was not as important whether the Evangelical Fellowship was a legal person, because it only sought to intervene in an otherwise properly constituted proceeding….
Similarly, McMurtry C.J.O. commented that an objection to an unincorporated association participating as an intervener was an objection “more of form than substance,” when the association can make a useful contribution to the argument of the appeal as an intervener.
Here, the Coalition brings this application in its own name. It did not seek leave to intervene, either as a party or as a friend of the court. It did not seek a representation order. Having chosen to take the benefits of not incorporating, the Coalition must accept the corresponding burdens, which include not being able to commence litigation in its own name. [Footnotes omitted.] [65] Following the release of Ontario Health Coalition, the parties to this Application were invited to make additional written submissions on the issue of standing.
[66] The OHC submits that its lack of legal-person status should not bar the court from granting public interest standing, and, in the alternative, requests that the court make a representation order.
[67] The OHC contends that there is no bar to the exercise of the court’s discretion to permit an unincorporated citizen group from being granted standing under Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA). It notes that s. 1 of the JRPA defines “party” as including “a municipality, association of employers, a trade union or council of trade unions which may be a party to any of the proceedings mentioned in subsection 2 (1)”.
[68] In my view, the definition of “party” in s. 1 of the JRPA does not assist the OHC. “[T]he word “includes” does not necessarily require an expansive interpretation extending the definition beyond the itemized list…The word “includes” may, depending on the context, precede a list that exhausts the definition”: Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 O.R. (3d) 321, at para. 52. See also: R. v. Loblaw Groceteria Co. (Manitoba), 1960 CanLII 84 (SCC), [1961] S.C.R. 138, per Fauteux J., (concurring); Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24, [2006] 1 S.C.R. 865, at paras. 47-50.
[69] As explained by Ruth Sullivan in The Construction of Statutes, 7th Ed. (LexisNexis Canada, 2022), at s. 4.04[3]:While definitions that begin with “includes” are non-exhaustive in the sense that they do not displace the ordinary meaning of the defined term and often enlarge it, they are exhaustive in the sense that, for the definition to apply, the person or thing in question must come either within the ordinary meaning of the defined term or within the meaning of the terms following “includes”. [70] In the case of the JRPA, the specific bodies referenced are sui generis. Municipalities are government bodies that exercise statutory powers that are subject to judicial review. An “association of employers, a trade union or council of trade unions” are all bodies with juridical status for certain purposes: see s.108 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. As the Supreme Court of Canada explained in International Longshoremen’s Association, Local 273 v. Maritime Employers’ Association, 1978 CanLII 158 (SCC), [1979] 1 S.C.R. 120, at pp. 135-37:Federal and provincial labour relations statutes alike have been interpreted by the courts in the same general way as Farwell J. interpreted the United Kingdom legislation in the Taff Vale case, supra, and over the years the concept has crystallized in our law whereby trade unions and employer organizations are deemed to have been constituted by the Legislature as legal entities for the purpose of discharging their function and performing their role in the field of labour relations. ... [71] The inclusion of those bodies in s. 1 of the JRPA does not assist the OHC in this case. The OHC does not fall within the meaning of those terms nor share any of the legal attributes of those specifically referenced bodies.
[72] In advancing this argument, the OHC relies on the comments of Koehnen J. in The Conservative Party of Canada v. Trost, 2018 ONSC 2230 (Div. Ct.), at para. 73, in which he left unanswered “the issue of the status of the [Conservative Party of Canada] to be a respondent” in an application for judicial review. He stated that the definition of “party” was an inclusive definition, and that there was “ample case law supporting jurisdiction over unincorporated associations for the purposes of ensuring that they adhere both to their internal rules and to the rules of natural justice”. Koehnen J. did not decide the issue of standing but referred the jurisdictional question to the panel of the Divisional Court scheduled to hear the application for judicial review.
[73] The full panel of the Divisional Court in Trost v. Conservative Party of Canada, 2018 ONSC 2733, quashed the application on the basis that the Divisional Court lacked jurisdiction to hear the application seeking relief against the Conservative Party of Canada. In quashing the application, the Divisional Court held, at paras. 27-29 and 32, that those cases that had previously allowed an application for judicial review against a voluntary association were wrongly decided. Given this decision, I find the earlier comments by Koehnen J. that relied on those now rejected cases to be unhelpful in the context of this case.
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