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JR - Standing - Public Interest. 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 court extensively considers the applicant's JR 'public interest standing':[4] The Applicants contend that the Director failed to base his decision on the objective record of Southbridge’s past conduct of operations at Orchard Villa. The Applicants argue that Southbridge’s record shows a pattern of failure to comply with its regulatory obligations, and of causing risk of, and harm to residents. The Applicants argue that Southridge’s record of non-compliance is one of the worst of any LTC home in the province.
[5] The Applicants submit that both the Minister’s and Director’s decisions are unreasonable and were not made in a manner that complied with the FLTCA. They further contend that they have been denied natural justice and a fair opportunity to participate in the approvals process or have their concerns taken into account.
[6] The Minister raises two interrelated preliminary issues. First, he argues that the Applicants do not have standing to challenge the impugned decisions since they are neither directly affected by the decisions, nor should they be granted public interest standing. ...
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[21] The Application in this case relates to an undertaking to issue a licence given pursuant to s. 103 of the FLTCA. That undertaking is subject to a number of conditions, and if the Director determines that any of the conditions are not complied with, the undertaking may be cancelled and the licence will not be issued.
[22] Finally, s. 109 of the FLTCA sets out a requirement for public consultation before issuing a licence or undertaking to issue a licence. Section 109 provides:109 (1) Subject to subsection (3), the Director shall consult the public before,
(a) issuing a licence for a new long-term care home under section 102;
(b) undertaking to issue a licence under section 103;
(c) transferring a licence, or beds under a licence, under section 108; or
(d) amending a licence to increase the number of beds or to extend the term of the licence under section 116.
(2) The Director may determine how public consultations under subsection (1) shall be conducted. [23] The Director is not required to consult the public if the Director has determined that public consultation is not warranted: s. 109(3).
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Standing
[45] The Respondent takes the position that the Applicants do not meet the test for either private interest or public interest standing.
[46] Both Applicants rely only on public interest standing in this Application.
[47] Ms. Parkes is the daughter of a former resident of Orchard Villa. Her father resided in Orchard Villa from November 2019 until he passed away on April 15, 2020, during the first wave of the COVID-19 pandemic. In the past few years, she has become increasingly involved in long-term care advocacy in Ontario. Her affidavit details her and her father’s experience at Orchard Villa during his time there. She attended and participated in the public consultation concerning the Southbridge proposal on July 15, 2021. She also participated in the second consultation in 2022 and provided a written submission.
[48] The OHC [SS: 'Ontario Health Coalition'] has been involved in public interest advocacy since the 1980s. It describes itself as a coalition representing more than 500 member organizations and individual members including seniors’ groups, patients’ organizations, trade unions, nurses and health professional organizations, physicians and physician organizations, non-profit community agencies, ethnic and cultural organizations, residents and family councils, retirees, poverty and equality seeking groups, and women’s organizations. They describe themselves as “a non-partisan public interest group whose primary goal is to protect and improve our public health care system”.
[49] The OHC participated in the first consultation on July 15, 2021 and the second consultation in 2022.
[50] If an applicant wishes to obtain public interest standing, it needs to demonstrate that the case raises a serious justiciable issue, that it has a genuine interest in the matter at issue, and that the application is a reasonable and effective means of bringing the case to court: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 2.
[51] These factors should be assessed and weighed cumulatively, in light of the underlying purpose of limiting standing and should be applied in a flexible and generous manner that best serves those underlying purposes: see Downtown East Side, at paras. 20-37.
(i) Does the case raise a serious justiciable issue?
[52] To constitute a serious justiciable issue, the question raised must be a “substantial constitutional issue” or an “important one” that is “far from frivolous”, although courts “should not examine the merits of the case in other than a preliminary manner”. Once it becomes clear that the application reveals at least one serious issue, it will usually not be necessary to examine every pleaded claim for the purpose of the standing question: see Downtown Eastside, at para. 42.
[53] While the Applicants have sought to turn this case into a constitutional case by referencing “Charter values” in their legal submissions, this is not, in my view, a case that raises a “substantial constitutional issue”. The Charter issue raised by the Applicants – that granting Southbridge even a conditional undertaking to issue a licence infringes the life, liberty and security of the person of future residents of the proposed home – is based on the premise that the proposed licence holder may not comply with its obligations under the FLTCA and the terms of its licence in the future. That position is purely speculative.
[54] The Applicants do not represent any of the future residents of the home.
[55] The balance of the issues raised by the Applicants – the adequacy of the public consultation process and the reasonableness of the decision to grant Southridge a conditional undertaking to issue a licence – do not, in my view, raise serious justiciable issues with a public interest component.
[56] As a general proposition, the decision to issue a licence does not raise an issue of public importance: Accettone Funeral Home Ltd. v. Ajax Crematorium and Visitation Centre and Bereavement Authority of Ontario, 2021 ONSC 4081 (Div. Ct.), at paras. 29, 44 and 50. The issuance of the licence may be of great importance to the person who applies for the licence, but it is not an issue of public importance.
[57] The licence in the present case is somewhat different than an ordinary licence because of the statutory context. The FLTCA provides for public consultation and the Director determined that public consultation was required. I accept that this indicates that the present licencing decision does have a public interest component that merits public consultation by the government. But that is not the same thing as whether the legal issues raised by the Applicants present an issue of public importance.
[58] Nor does everyone who participated in the public consultation process thereby acquire public interest standing to judicially review the decision that follows. There are no limits to who may participate in a public consultation. Over 200 submissions were received by the government in this public consultation process.
[59] There are, however, real limits to who may bring an application in court, and limits to who may participate as an intervenor. “The law of standing is designed to balance access to courts with the preservation of judicial resources, and to ensure that proper parties are before the court to argue matters” Ontario Place Protectors v. HMK in Right of Ontario, 2024 ONSC 4194, at para. 16. As the Supreme Court of Canada held, “It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a (sic) well-meaning organizations pursuing their own particular cases...”: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, at 252.
(ii) Do the Applicants have a genuine interest in the matter at issue?
[60] I am not satisfied that Catherine Parkes has a “real stake or genuine interest” in the outcome of this Application. Her father’s experience at Orchard Villa and his death during the first wave of COVID has spurred her involvement in long-term care advocacy in Ontario, but not every advocate is entitled to public interest standing. She has no direct interest in the new facility that is proposed, and no real stake in the outcome of this case.
[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.
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(iii) Is this a reasonable and effective means of bringing the case to court?
[77] In addressing the third factor, that is, whether this is a “reasonable and effective” means to bring the issue before the court, the court must take a practical and pragmatic approach: see Downtown Eastside, at paras. 47, 60. In assessing the third factor, courts should examine whether the issue will be presented in a sufficiently concrete and well-developed factual setting.
[78] To the extent that the Applicants’ challenge is limited to the adequacy of the consultation process, they have advanced a sufficiently concrete factual setting. They have not, however, advanced “a serious justiciable issue” – see the discussion of this issue below.
[79] To the extent that the Applicants challenge the Minister’s and the Director’s decision to grant a conditional undertaking to issue a licence to Southridge, the factual context is less developed. That is because the issuance of the undertaking is an interim step under the licencing regime. Courts are generally hesitant to interfere with an ongoing administrative process. This factor might be less significant if either of the Applicants met the test for private interest standing.
(iv) Conclusion Re: Standing
[80] Assessing and weighing the public interest factors cumulatively, I conclude that neither the OHC nor Catherine Parkes qualifies for public interest standing, and I would dismiss the Application on that basis.
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