Simon's Megalomaniacal Legal Resources

Associations - Standing - Judicial Review

A consistent issue with associations is whether they are subject to judicial review (JR). This turns largely on whether the issue for which review is sought is 'public or private' in accordance with JR doctrine: Judicial Review - Public versus Private.

. 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.

. Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall

In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall (SCC, 2018) the Supreme Court of Canada extensively canvassed that judicial review for procedural fairness is a public law remedy, in the context of a religious association:

IV. Analysis

[12] Courts are not strangers to the review of decision making on the basis of procedural fairness. However, the ability of courts to conduct such a review is subject to certain limits. These reasons address three ways in which the review on the basis of procedural fairness is limited. First, judicial review is reserved for state action. In this case, the Congregation’s Judicial Committee was not exercising statutory authority. Second, there is no free-standing right to procedural fairness. Courts may only interfere to address the procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights are at stake. Third, even where review is available, the courts will consider only those issues that are justiciable. Issues of theology are not justiciable.

A. The Availability of Judicial Review

[13] The purpose of judicial review is to ensure the legality of state decision making: see Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 24 and 26; Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at pp. 237-38; Knox v. Conservative Party of Canada, 2007 ABCA 295, 422 A.R. 29, at paras. 14-15. Judicial review is a public law concept that allows s. 96 courts to “engage in surveillance of lower tribunals” in order to ensure that these tribunals respect the rule of law: Knox, at para. 14; Constitution Act, 1867, s. 96. The state’s decisions can be reviewed on the basis of procedural fairness or on their substance. The parties in this appeal appropriately conceded that judicial review primarily concerns the relationship between the administrative state and the courts. Private parties cannot seek judicial review to solve disputes that may arise between them; rather, their claims must be founded on a valid cause of action, for example, contract, tort or restitution.

[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.

[15] Further, while the private law remedies of declaration or injunction may be sought in an application for judicial review (see, for example, Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 2(2)(b); Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(1)2; Judicial Review Act, R.S.P.E.I. 1988, c. J-3, ss. 2 and 3(3)), 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.

[16] The Attorney General has a right to be heard on an originating application for judicial review, and must be served notice where an application has been filed: Alberta Rules of Court, Rules 3.15 and 3.17. Other originating applications have no such requirements: ibid., Rule 3.9. This suggests that judicial review is properly directed at public decision making.

[17] Although the public law remedy of judicial review is aimed at government decision makers, some Canadian courts, including the courts below, have continued to find that judicial review is available with respect to decisions by churches and other voluntary associations. These decisions can be grouped in two categories according to the arguments relied on in support of the availability of judicial review. Neither line of argument should be taken as authority for the broad proposition that private bodies are subject to judicial review. Both lines of cases fail to recognize that judicial review is about the legality of state decision making.

[18] The first line of cases relies on the misconception that incorporation by a private Act operates as a statutory grant of authority to churches so constituted: Lindenburger v. United Church of Canada (1985), 10 O.A.C. 191 (Div. Ct.), at para. 21; Davis v. United Church of Canada (1992), 1992 CanLII 7731 (ON SC), 8 O.R. (3d) 75 (Gen. Div.), at p. 78. The purpose of a private Act is to “confer special powers or benefits upon one or more persons or body of persons, or to exclude one or more persons or body of persons from the general application of the law”: Canada, Parliament, House of Commons, House of Commons Procedure and Practice (2nd ed. 2009), by A. O’Brien and M. Bosc, at p. 1177. Thus, by its nature, a private Act is not a law of general application and its effect can be quite limited. The federal Interpretation Act, R.S.C. 1985, c. I-21, s. 9, states that “[n]o provision in a private Act affects the rights of any person, except only as therein mentioned and referred to.” For instance, The United Church of Canada Act (1924), 14 & 15 Geo. 5, c. 100, gives effect to an agreement regarding the transfer of property rights (from the Methodist, Congregationalist and certain Presbyterian churches) upon the creation of the United Church of Canada; it is not a grant of statutory authority.

[19] A second line of cases that allows for judicial review of the decisions of voluntary associations that are not incorporated by any Act (public or private) looks only at whether the association or the decision in question is sufficiently public in nature: Graff v. New Democratic Party, 2017 ONSC 3578, at para. 18 (CanLII); Erin Mills Soccer Club v. Ontario Soccer Assn., 2016 ONSC 7718, 15 Admin. L.R. (6th) 138, at para. 60; West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, 327 O.A.C. 29, at paras. 17-18. These cases find their basis in the Ontario Court of Appeal’s decision in Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481. The court in Setia found that judicial review was not available since the matter did not have a sufficient public dimension despite some indicators to the contrary (such as the existence of a private Act setting up the school) (para. 41).

[20] In my view, these cases do not make judicial review available for private bodies. Courts have questioned how a private Act — like that for the United Church of Canada — that does not confer statutory authority can attract judicial review: see Greaves v. United Church of God Canada, 2003 BCSC 1365, 27 C.C.E.L. (3d) 46, at para. 29; Setia, at para. 36. 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, at para. 18; West Toronto United Football Club, 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.

[21] Part of the confusion seems to have arisen from the courts’ reliance on Air Canada to determine the “public” nature of the matter at hand. But, what Air Canada actually dealt with was the question of whether certain public entities were acting as a federal board, commission or tribunal such that the judicial review jurisdiction of the Federal Court was engaged. 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.

....

B. The Ability of Courts to Review Decisions of Voluntary Associations for Procedural Fairness

[24] Even if Mr. Wall had filed a standard action by way of statement of claim, his mere membership in a religious organization — where no civil or property right is granted by virtue of such membership — should remain free from court intervention. Indeed, there is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations. Jurisdiction cannot be established on the sole basis that there is an alleged breach of natural justice or that the complainant has exhausted the organization’s internal processes. Jurisdiction depends on the presence of a legal right which a party seeks to have vindicated. Only where this is so can the courts consider an association’s adherence to its own procedures and (in certain circumstances) the fairness of those procedures.

[25] The majority in the Court of Appeal held that there was such a free-standing right to procedural fairness. However, the cases on which they relied on do not stand for such a proposition. Almost all of them were cases involving an underlying legal right, such as wrongful dismissal (McCaw v. United Church of Canada (1991), 1991 CanLII 7048 (ON CA), 4 O.R. (3d) 481 (C.A.); Pederson v. Fulton, 1994 CanLII 7483 (Ont. S.C. (Gen. Div.)), or a statutory cause of action (Lutz v. Faith Lutheran Church of Kelowna, 2009 BCSC 59). Another claim was dismissed on the basis that it was not justiciable as the dispute was ecclesiastical in nature: Hart v. Roman Catholic Episcopal Corp. of the Diocese of Kingston, 2011 ONCA 728, 285 O.A.C. 354.

[26] In addition, it is clear that the English jurisprudence cited by Mr. Wall similarly requires the presence of an underlying legal right. In Shergill v. Khaira, [2014] UKSC 33, [2015] A.C. 359, at paras. 46-48, and Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.), the English courts found that the voluntary associations at issue were governed by contract. I do not view Shergill as standing for the proposition that there is a free-standing right to procedural fairness as regards the decisions of religious or other voluntary organizations in the absence of an underlying legal right. Rather, in Shergill, requiring procedural fairness is simply a way of enforcing a contract (para. 48). Similarly, in Lee, Lord Denning held that “[t]he jurisdiction of a domestic tribunal, such as the committee of the Showmen’s Guild, must be founded on a contract, express or implied” (p. 1180).

[27] Mr. Wall argued before this Court that Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165, could be read as permitting courts to review the decisions of voluntary organizations for procedural fairness concerns where the issues raised were “sufficiently important”, even where no property or contractual right is in issue. This is a misreading of Lakeside Colony. What is required is that a legal right of sufficient importance — such as a property or contractual right — be at stake: see also Ukrainian Greek Orthodox Church of Canada v. Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, 1940 CanLII 59 (SCC), [1940] S.C.R. 586. It is not enough that a matter be of “sufficient importance” in some abstract sense. As Gonthier J. pointed out in Lakeside Colony, the legal right at issue was of a different nature depending on the perspective from which it was examined: from the colony’s standpoint the dispute involved a property right, while from the members’ standpoint the dispute was contractual in nature. Either way, the criterion of “sufficient importance” was never contemplated as a basis to give jurisdiction to courts absent the determination of legal rights.

[28] Mr. Wall argues that a contractual right (or something resembling a contractual right) exists between himself and the Congregation. There was no such finding by the chambers judge. No basis has been shown that Mr. Wall and the Congregation intended to create legal relations. Unlike many other organizations, such as professional associations, the Congregation does not have a written constitution, by-laws or rules that would entitle members to have those agreements enforced in accordance with their terms. In Zebroski v. Jehovah’s Witnesses (1988), 1988 ABCA 256 (CanLII), 87 A.R. 229, at paras. 22-25, the Court of Appeal of Alberta ruled that membership in a similarly constituted congregation did not grant any contractual right in and of itself. The appeal can therefore be distinguished from Hofer v. Hofer, 1970 CanLII 161 (SCC), [1970] S.C.R. 958, at pp. 961 and 963, Senez v. Montreal Real Estate Board, 1980 CanLII 222 (SCC), [1980] 2 S.C.R. 555, at pp. 566 and 568, and Lakeside Colony, at p. 174. In all of these cases, the Court concluded that the terms of these voluntary associations were contractually binding.

[29] Moreover, mere membership in a religious organization, where no civil or property right is formally granted by virtue of membership, should remain outside the scope of the Lakeside Colony criteria. Otherwise, it would be devoid of its meaning and purpose. In fact, members of a congregation may not think of themselves as entering into a legally enforceable contract by merely adhering to a religious organization, since “[a] religious contract is based on norms that are often faith-based and deeply held”: R. Moon, “Bruker v. Marcovitz: Divorce and the Marriage of Law and Religion” (2008), 42 S.C.L.R. (2d) 37, at p. 45. Where one party alleges that a contract exists, they would have to show that there was an intention to form contractual relations. While this may be more difficult to show in the religious context, the general principles of contract law would apply.

[30] Before the chambers judge, Mr. Wall also argued his rights are at stake because the Judicial Committee’s decision damaged his economic interests in interfering with his client base. On this point, I would again part ways with the courts below. Mr. Wall had no property right in maintaining his client base. As Justice Wakeling held in dissent in the court below, Mr. Wall does not have a right to the business of the members of the Congregation: Court of Appeal reasons, at para. 139. For an illustration of this, see Mott-Trille v. Steed, [1998] O.J. No. 3583 (C.J. (Gen. Div.)), at paras. 14 and 45, rev’d on other grounds, 1999 CanLII 2618 (Ont. C.A.).

[31] Had Mr. Wall been able to show that he suffered some detriment or prejudice to his legal rights arising from the Congregation’s membership decision, he could have sought redress under appropriate private law remedies. This is not to say that the Congregation’s actions had no impact on Mr. Wall; I accept his testimony that it did. Rather, the point is that in the circumstances of this case, the negative impact does not give rise to an actionable claim. As such there is no basis for the courts to intervene in the Congregation’s decision-making process; in other words, the matters in issue fall outside the courts’ jurisdiction.