|
Judicial Review - Standing - Tribunal. Sayers Foods Ltd. v. Gay Company Ltd.
In Sayers Foods Ltd. v. Gay Company Ltd. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a statutory JR, this brought against an adjudicator's order for "the Applicant to pay $685,574.91, plus interest .... pursuant to the prompt payment regime in the Construction Act" [under Part II.1 - Construction Dispute Interim Adjudication].
Here the court considers the JR standing of the 'ODACC' ('Ontario Dispute Adjudication for Construction Contracts'), which it's website characterizes as being: "the Authorized Nominating Authority (“ANA”) under the Construction Act. As the ANA, ODACC is responsible for administering construction-related adjudications and for training and qualifying Adjudicators.":(b) Ontario Dispute Adjudication for Construction Contracts (“ODACC”)
[133] This court directed (at 2024 ONSC 6123) that notice be given in this case to ODACC to consider:(a) whether ODACC is entitled to notice and/or to be heard on applications for judicial review of prompt payment determinations under the Act; and
(b) whether ODACC should be required to devise and implement a policy for public release of adjudication decisions in the future. (i) Notice to ODACC
[134] ODACC submits that it is not a statutory tribunal operating under the purview of the provincial government, but rather a “private corporation designated by the [Ontario Ministry of the Attorney General] through a contractual relationship as the Authorized Nominating Authority” pursuant to the Act. ODACC describes itself as having “unique status in the justice system.” Based on this analysis, ODACC argues that it should not be viewed as under the auspices of the Attorney General, but as an “arm’s length party” entitled to notice of court proceedings involving decisions of adjudicators made under its auspices. It argues that natural justice requires that a party with a sufficient interest in a matter has a right to be given notice and to be heard: Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), 1995 CanLII 102 (SCC), [1995] 2 SCR 781. It asks that the court find that it is entitled to notice of motions for leave to seek judicial review from an adjudicator’s determination and, where leave is granted, notice of any application for judicial review of an adjudicator’s determination under the Act.
[135] Subsection 9(2) of the JRPA provides that a person who exercises or refuses to exercise a statutory power of decision may be a made a party to an application for judicial review. In Children’s Lawyer for Ontario v. Goodis (2005), 2005 CanLII 11786 (ON CA), 75 OR (3d) 309, the Court of Appeal interpreted this provision to entitle a tribunal to be added as a party:The ordinary meaning of this provision gives the administrative tribunal the right to be a party to the proceeding if it chooses to do so. It leaves to the tribunal, rather than the court the decision of whether to become a party to the application for judicial review.[15] [136] There is no statutory provision requiring that ODACC be given notice of leave motions or applications for judicial review brought under the Construction Act. ODACC requires parties to adjudications to enter into agreements respecting the adjudication. It would be open to ODACC to include a provision in the adjudication agreements requiring parties to give notice to ODACC of motions for leave to appeal or applications for judicial review. There is no evidence before this court that such a provision is included in ODACC’s adjudication agreements.
[137] On the law, ODACC is a “proper” party, but may not be a “necessary” party to an application for judicial review: r. 5.03 of the Rules of Civil Procedure. ODACC argues that it has a heightened interest in receiving notice, relative to statutory tribunals, since the Attorney General is at “arm’s length” from it and should not be taken to address its interests and concerns.
[138] ODACC’s status as a “private corporation” that is “under contract” with the Ministry of the Attorney General, raises interesting questions, but we do not find it necessary to address them for the purpose of deciding the notice issue. There is no law to support the argument that ODACC should be entitled to notice of a motion for leave to apply for judicial review, and we do not see how ODACC’s interests would be prejudiced if it was not able to participate at the leave stage. If we are wrong about that, it would be a simple matter for a notice requirement to be included in the Construction Act’s regulations.
[139] There is law to support the argument that ODACC should get notice of any applications for judicial review brought from decisions of adjudicators acting under its auspices. ODACC is a “proper” party to those applications and cannot exercise its rights if it is unaware that an application has been brought. We accept that notice on the Attorney General would not constitute notice on ODACC. We conclude that a party bringing an application for judicial review should serve that notice on ODACC so that ODACC may exercise its rights to be added as a party.
[140] For this notice requirement to be effective and efficient, ODACC should make parties to adjudications aware that they should serve notices of application on ODACC and should establish a means by which parties may do so efficiently (such as, for example, a service portal). Failure to take these steps could affect the exercise of the court’s discretion in a case where a party fails to serve ODACC.
(ii) Publication of ODACC Determinations
[141] This court has expressed concerns that ODACC prompt payment decisions have not been released to legal databases such as CanLII.
[142] On November 6, 2024, “Bill 216” received Royal Assent. Section 88(1)(j.1) of that Bill provides:The Lieutenant Governor in Council may make regulations respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act, including regulations,
...
(j.1) requiring that the Authorized Nominating Authority make adjudication determinations publicly available, subject to the removal of identifying information, and governing the making of determinations publicly available and the removal of identifying information for that purpose; [143] As of the hearing in this application (June 4, 2025), Bill 216 had not yet been proclaimed in force and no regulation had been promulgated pursuant to s. 88(1)(j.1). ODACC argued at the hearing that this court should not intervene in respect to this issue in light of this new legislation.
[144] This provision was proclaimed in force effective January 1, 2026, and the following provision was enacted as part of O. Reg. 264/25, s. 16:(1) The Authority shall publish a copy of every adjudication determination on its website.
(2) Before publishing a copy of an adjudication determination, the Authority shall ask each party to the adjudication whether, in the party’s view, the determination should be anonymized, and if any party answers in the affirmative, the Authority shall,
(a) request that each party indicate, in the time and manner specified by the Authority, any portions of the determination that, in the party’s view, may identify either of the parties; and
(b) ensure that every portion indicated by a party in response to the request does not appear in the published version of the determination.
(3) This section applies with respect to an adjudication determination if the notice of adjudication is given on or after the first anniversary of the day this Regulation comes into force. [145] In light of these enactments coming into force, it would not be appropriate for the court to address this issue in this case.[16] . Toronto (City) v. WSIAT
In Toronto (City) v. WSIAT (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here from several WSIAT rulings involving workers that are "presumptively eligible for workers’ compensation benefits if they contract a listed “occupational disease”, provided that they meet the relevant criteria" - described here as a 'rebuttable presumption', here causal in nature.
Here the court considered the limited role of a tribunal in a JR:[90] Finally, we note that we have ignored paras. 56 to 97 of the factum delivered on behalf of WSIAT. Prior to para. 56, the Tribunal provided helpful submissions on the applicable statutory instruments and the interplay between the Tribunal and the Board to help inform the court on the administrative scheme. But with well-represented parties on both sides of the issue, the Tribunal should not be seen to be taking a position on the merits in this court: see, Hydro Ottawa v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2019 ONSC 4898, Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678 (CanLII), Irving Consumer Products Limited v. Singh, 2024 ONSC 7186 (CanLII). . Fuchigami v. Ontario College of Teachers
In Fuchigami v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered 3 related JRs where a teacher complainant challenged "three decisions of the Investigation Committee of the College of Teachers (the “Respondent”) not to refer complaints made by him about three of his colleagues (the “respondent Members”) to the Discipline Committee of the College of Teachers". The court addressed this primarily as a legal 'standing' issue, and engaged in a useful canvass of standing law in the professional discipline complainant context:Issue (a): Does the Applicant have standing to bring this application for judicial review?
[14] The Applicant was the Complainant. Unless a statute expressly provides otherwise, a complainant in a professional discipline case has no standing to challenge the substantive reasonableness of a decision not to refer a complaint to a discipline hearing. The Applicant does have limited standing to challenge this kind of discipline decision on grounds of procedural fairness:The Act makes it clear that the disciplinary process is a matter between the Association and the individual member whose conduct has been questioned. The Act is directed solely to the Association and its members; the rights, duties and responsibilities contained in the Act relate only to them. Under the investigative process contained in Part 5, a complainant is not made a party either to the investigation or the disciplinary process itself. The only parties are the Association and the member whose conduct is under investigation. Council's decision to terminate the investigation of the Engineers could have no detrimental impact on either FOR or Opron. It did not affect their personal or economic rights or obligations. They have no more interest in the conduct of the Engineers than any other member of the public. There is no lis inter partes between FOR and Opron, on the one hand, and the Association or the Engineers, on the other. Judicial review is not available in these circumstances. (Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107, para. 41; leave to appeal refused [2001] SCCA No 366). [15] As found by the Nova Scotia Court of Appeal, this principle has been widely recognized in Canadian jurisdictions:The issue of whether a complainant in a professional disciplinary matter has standing to apply for judicial review has been considered in a number of cases: Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107, leave to appeal refused [2001] SCCA No 366; Berg v. British Columbia (Police Complaint Commissioner), [2006] B.C.J. No. 1027 (BCCA), leave to appeal refused [2006] SCCA No 300); M.H. v. College of Physicians and Surgeons of Alberta, 2006 ABQB 395; Pound v. Lunney, 2007 BCSC 85; Allen v. College of Dental Surgeons of British Columbia, 2007 BCCA 75; Metropolitan Centre Inc. v. Abugov Kaspar Architecture, Engineering, Interior Design, 2007 ABQB 419; Emerman v. Assn. of Professional Engineers and Geoscientists of British Columbia, 2008 BCSC 1186; Mitten v. College of Alberta Psychologists, 2010 ABCA 159; Robichaud v. College of Registered Nurses of Nova Scotia, 2011 NSSC 379. These authorities appear to be in agreement that a non‑party does not have standing to seek judicial review of the merits of a disciplinary body's decision. Where judicial review has been found to be available, it has been limited to issues relating to procedural fairness. (Tupper v. Nova Scotia Barristers’ Society, 2013 NSSC 290, para. 31) [16] This principle has long been the law of Ontario, has been followed consistently in this court and has been applied, in particular, in cases emanating from the Respondent: Cowan v. Canadian Broadcasting Corporation, 1966 CanLII 225 (ON CA), [1966] 2 OR 309 at 311 (CA); Pieters v. Ontario College of Teachers, 2008 CanLII 5113, para. 4 (Ont. Div. Ct.); Kipiniak v. Ontario Judicial Council, 2012 ONSC 5866 (Div. Ct.); Bouragba v. Ontario College of Teachers, 2018 ONCA 6940, para. 3 (Div. Ct.). . Grus v. Renwick and Chief of Police, Ottawa Police Service
In Grus v. Renwick and Chief of Police, Ottawa Police Service (Div Court, 2023) the Divisional Court (single judge) considers the standing of a police disciple hearings officer, whose interlocutory decision was subject to JR, where the police officer applicant named them as a party:Hearing Officer as a Party
[31] Although my ruling on prematurity disposes of this matter, the issue relating to the hearing officer as a party should be addressed.
[32] The relevant section of the JRPA is permissive and states that “the person who is authorized to exercise the power may be a party to the application” [JRPA, s. 9(2)].
[33] Relevant jurisprudence has raised two considerations around the need for an adjudicator to be a party to a judicial review application. In some cases, the adjudicator may need to be a party in order to assist in fully informing the review court. Conversely, there are dangers surrounding the participation of the adjudicator as it may undermine future confidence in the adjudicator’s objectivity if they are placed in an adversarial position [Children’s Lawyer for Ontario v. Goodis (2005), 2005 CanLII 11786 (ON CA), 75 O.R. (3d) 309 (C.A.), at paras. 35-40].
[34] In the present case, the Applicant has suggested that the hearing officer should be a party in order to potentially address the seriousness of the impartiality concerns raised by the Applicant. Such a suggestion is inappropriate given that the disciplinary proceedings are still in progress. The fact that the hearing officer may be wanted to respond to questions surrounding his own impartiality is alarming to this court. Is the Applicant seeking to intimidate the hearing officer by raising issues of appearance of bias in her materials while making no such allegation in her Notice of Application for Judicial Review? The approach taken by the Applicant in this matter raises many questions.
[35] While there may be circumstances where it may be appropriate for a party to add the adjudicator as a party to a judicial review proceeding, this is not one of them. The veiled challenges to the hearing officer’s impartiality in the midst of a hearing requires that the hearing officer be sheltered from such allegations to avoid attempts to influence his future decision-making.
[36] As a general rule, it is the administrative tribunal’s right to be a party to an application for judicial review [Goodis, at para. 26]. Accordingly, it would normally be the hearing officer who may seek to have party status in the appropriate circumstances. Clearly, s. 9(2) of the JRPA does not limit the right to the administrative tribunal or decision-maker and there could be circumstances where it would be appropriate for an Applicant to do so. This was not one of those cases and the significant concerns about maintaining the objectivity of the hearing officer militated against the hearing officer having party status in these circumstances.
[37] As of the date of the Case Conference, the hearing officer was excused and did not participate in these motions where many of the allegations were made. In my view, the ongoing role of the hearing officer has been preserved. . Folz v Algoma Family Services
In Folz v Algoma Family Services (Div Court, 2023) the Divisional Court considered a JR of IPC-PHIPA adjudication denials regarding requests for personal health information held by a child protection agency, specifically, information: "... made in relation to an intensive treatment program for the Applicant’s son".
In these quotes the court cites a leading case on bias of a decision-maker, when they seek standing in a JR of their own decision:[21] Beginning with the role of the IPC in this application, the Applicant submits that while the IPC may participate, we should disregard its submissions on the reasonableness or correctness of the Decisions because it is the decision-maker. The IPC responds that because AFS is not participating in this application, and because its adjudication is inquisitorial, not simply adversarial, it should be permitted to address all issues to assist the Court.
[22] As set out in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 SCR 147, at para. 57, this issue requires a principled exercise of this Court’s discretion to determine the appropriate scope of the IPC’s participation. In exercising this discretion, this Court is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality. Focusing on this application in particular, we conclude that we do not need the IPC’s assistance on the merits of the Decisions themselves and therefore agree that the IPC’s role should not be extended to include those issues. There is no reason, in this case, to compromise the IPC’s impartiality. Note: The cited case, Ontario Power Generation (SCC, 2015), is relevant for the follow passages [italicization mine]:[55] Canadian tribunals occupy many different roles in the various contexts in which they operate. This variation means that concerns regarding tribunal partiality may be more or less salient depending on the case at issue and the tribunal’s structure and statutory mandate. As such, statutory provisions addressing the structure, processes and role of the particular tribunal are key aspects of the analysis.
[56] The mandate of the Board, and similarly situated regulatory tribunals, sets them apart from those tribunals whose function it is to adjudicate individual conflicts between two or more parties. For tribunals tasked with this latter responsibility, “the importance of fairness, real and perceived, weighs more heavily” against tribunal standing: Henthorne v. British Columbia Ferry Services Inc., 2011 BCCA 476, 344 D.L.R. (4th) 292, at para. 42.
[57] I am thus of the opinion that tribunal standing is a matter to be determined by the court conducting the first-instance review in accordance with the principled exercise of that court’s discretion. In exercising its discretion, the court is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality. . Njoroge v. Canada (Attorney General)
In Njoroge v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the 'intervention' standing of the ruling tribunal, here in a federal case:[12] I turn to the motion by the CJC to be added as a party under Rule 338 or as an intervener under Rule 109. The appellant objects to the motion on the basis that a decision maker should not be a party in a proceeding where its own decision is at issue.
[13] Rule 338 and its associated jurisprudence are not as unequivocal as the appellant contends. The opening words of the Rule are "“[u]nless the Court orders otherwise”". The appropriate role for a decision maker whose decision is in issue in a proceeding is, therefore, a discretionary decision for the Court. The factors that need to be taken into account include the stage of proceedings (whether the proceeding is on the merits or at an interlocutory stage on a procedural issue as here), the substance of the issues on appeal and whether the tribunal appreciates and clearly respects the limitations on its role. A court will also be mindful of the importance of public perception of a tribunal’s impartiality and want to ensure that, whatever the label assigned to a tribunal’s role in the proceedings, neither the perception or reality of its impartiality is compromised (Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147 at para. 57).
[14] Consistent with these considerations, tribunals ought, presumptively, to be added as interveners (Air Passenger Rights v. Canada (Attorney General), 2022 FCA 64; Lukács v. Canada (Transportation Agency), 2014 FCA 292 at para. 17; Canada (Attorney General) v. Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3 at para. 3). As interveners, tribunals often provide contextual evidence, describe their legislative framework and operating procedures and no more. The role of tribunals as interveners is not, however, invariable (Girouard v. Canadian Judicial Council, 2019 FCA 252; Lukács v. Canada (Transportation Agency), 2016 FCA 103).
[15] The objective is to assign to the party/intervener the status that most closely aligns with the principles constraining the role of tribunals on applications for judicial review of their own decisions, and the substance of the issue to be determined by the Court. In this case, the substance of the role that the CJC will be permitted to play on the appeal is the same, regardless of how it is described or labelled—whether as an intervener or respondent.
[16] In this case, several factors point to adding the CJC as a respondent. Its memorandum of fact and law makes clear that it understands and respects the limitations on its role and that it will play no part in defending the decision on the merits (although this appeal, on an interlocutory point, does not address the merits of the judicial review application in any event). Moreover, the central issue on appeal—the question of deliberative privilege—shows the CJC to be, in substance, a true respondent. Finally, there are procedural advantages and added efficiencies if the CJC is joined as a respondent; the filing dates are co-ordinated with those of the other respondent, which will hasten the perfection of the appeal.
[17] The CJC will therefore be added as a respondent to this appeal. . Taylor v. Pivotal Integrated HR Solutions
In Taylor v. Pivotal Integrated HR Solutions (Div Ct, 2020) the Divisional Court commented on the statutory right of a tribunal to be a party to a judicial review application:[24] Pursuant to s. 9(2) of the JRPA, the Tribunal has a statutory right to be a party to this application. Section 9(2) provides as follows:Exercise of power may be a party
(2) For the purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application. ...
[28] The ability of tribunals to participate on judicial review applications is well-established. The proper scope of such application may be open to debate. The courts have held that a too aggressive defence of a tribunal’s decision on the merits may be inappropriate. However, where the tribunal is the only party opposing the application, the court benefits from an adversarial presentation. As the Supreme Court of Canada held in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 at para. 54:Some cases may arise in which there is simply no other party to stand in opposition to the party challenging the tribunal decision. Our judicial review processes are designed to function best when both sides of a dispute are argued vigorously before the reviewing court. In a situation where no other well-informed party stands opposed, the presence of a tribunal as an adversarial party may help the court ensure that it has heard the best of both sides of a dispute. . Yan v. Kucan
In Yan v. Kucan (Div Court, 2022) the Divisional Court considered the s.9(2-3) standing provision of the JRPA:[3] Beginning with the request to add HPARB as a party respondent, s. 9(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides that: “For the purposes of an application for judicial review in relation to the exercise … of a statutory power, the person who is authorized to exercise the power may be a party to the application.” Subsection 9(3) then deems, for the purposes of s. 9(2), that two or more people who, acting together, may exercise a statutory power under a collective title to be a person for this purpose under that collective title. The HPARB panel that addressed the review is the “two or more people who, acting together” exercised the statutory power to review the ICRC decision, about which the applicant is seeking judicial review. No reason has been put forward that would justify not adding HPARB as a party. The motion to add HPARB as a party respondent is therefore granted.
|
