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Standing - Non-parties. Bertrand v. Academic Medical Organization of Southwestern Ontario
In Bertrand v. Academic Medical Organization of Southwestern Ontario (Ont CA, 2024) the Ontario Court of Appeal considered an application by individual medical educators against the cessation of academic funding under the 'AHSC AFP Template Funding Agreement' made between various academic and medical bodies and the Minister of Health and Long-Term Care.
Here the court considers exceptions to the doctrine of privity of contract, which - if effective - can grant standing to 'other' parties:[7] The appellants commenced an application in the Superior Court. They argued that AMOSO’s decision amounted to a breach of the Agreement and that they continued to be entitled to an allocation of the funds paid to AMOSO. The application was dismissed. The application judge found that the appellants, who are not parties to the Agreement, were not entitled to a contractual remedy; were not intended to receive the benefit of any of the Agreement’s provisions, in particular those that provide for mediation and alternative dispute resolution (“ADR”); and that even if the appellants had a contractual right, because AMOSO adhered to and exceeded its internal rules and the principles of natural justice, the court had no authority to review the correctness of AMOSO’s decision.
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[13] The common law doctrine of privity of contract, accurately summarized in the application judge’s reasons, stands for the proposition that “no one but the parties to a contract can be bound by it or entitled to it”: Greenwood Shopping Plaza v. Neil J. Buchanan Ltd., 1980 CanLII 202 (SCC), [1980] 2 S.C.R. 228, at para. 9. The application judge recognized that there are exceptions to the doctrine, pursuant to the “principled approach” identified in Fraser River Pile & Dredge Ltd. v. Can-Drive Services Ltd., [1999] 1 S.C.R. 108, at para. 31, which required him to consider the following “two critical and cumulative factors”: 1) whether the parties to the Agreement intended to extend the benefit in question to the appellants; and 2) whether the activities performed by the appellants are the very activities contemplated as coming within the scope of the Agreement in general, or the provision in particular (i.e., access to ADR), again as determined by the intention of the parties.
[14] The application judge’s reasons address both of these prerequisites. First, he found that there was no express intention in the Agreement that an individual physician would benefit from any contractual provision, nor could one be implied. And second, he found that it “would not accord with commercial reality and common sense” if each physician had the right to commence proceedings (under either the funding agreement’s ADR provisions or in court) each time AMOSO made a decision with which they disagreed. These findings were amply supported by the record. . Lukács v. Canada (Citizenship and Immigration)
In Lukács v. Canada (Citizenship and Immigration) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of an IRPA s.87 ['Application for non-disclosure — judicial review and appeal'] order made at the Federal Court in the context of a JR challenging the entry into Canada of people travelling from Hungary. The order was with respect to 'confidential information' that was "inadvertently disclosed", and it's effect was to "enjoin() Dr. Gabor Lukács and others, from retaining, disclosing or disseminating certain confidential information". In this quote the court considered, and dismissed, the argument that a 'mandatory order' could not be made against a non-party:[61] Dr. Lukács also argued that a mandatory order could not be made against a non-party. Since he and others were not parties to the motion for injunctive relief, Dr. Lukács argues that the Court had no jurisdiction to make a mandatory order against them. This argument is without merit. Equitable relief in the form of an injunction may be issued against non-parties where it appears to the court to be just or convenient that the order should be made (Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824 at para. 28). . Blake v. Blake
In Blake v. Blake (Div Ct, 2021) the Divisional Court considered the right of a non-party to be heard where an order will have an direct effect on them:[59] In a situation where a judge’s decision will have a direct impact on someone who is not a party to the dispute there is an obligation to allow that person to be heard. The Court of Appeal makes this clear in Fontaine v Canada (Attorney General) 2018 ONCA 1023, at para 21, as follows:Contrary to what the respondent argues, it is precisely because the Eastern Administrative Judge was exercising his judicial functions that he owed the appellant an elevated duty of procedural fairness and natural justice. Of the many principles underlying the Canadian judicial system, generally those who will be subject to an order of the court are to be given notice of the legal proceeding and afforded the opportunity to adduce evidence and make submissions: A.(L.L.) v. B.(A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536, at para. 27. [60] Along the same vein, Lamer C.J. and Sopinka J. provide similar guidance in A. (L.L.) v B.(A) 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536 at para 27:The one question that remains is whether both a complainant, a third party to the proceedings (whether or not an appellant, but here one of the appellants), and the Crown, a party to the proceedings, have standing in third party appeals. There is no doubt in my mind that they do. The audi alteram partem principle, which is a rule of natural justice and one of the tenets of our legal system, requires that courts provide an opportunity to be heard to those who will be affected by the decisions.
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