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Standing - Public Interest Standing (3). Ontario Place Protectors v. Ontario
In Ontario Place Protectors v. Ontario (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from a dismissal of an earlier application challenging the ROPA (Rebuilding Ontario Place Act, 2023) legislation under s.96 ['Judicature'] Constitution Act, 1867 grounds.
Here the court favourably considers the public interest standing of the appellant:(1) The appellant should be granted public interest standing
[17] The appellant submits that the Crown did not pursue its opposition to standing in a timely way, raising it less than 48 hours before the hearing of its application. The suggestion is that a number of relevant matters may not have been considered as a result of the way in which the standing issue arose. The appellant argues that the application judge’s denial of standing is contrary to the central purpose of public interest standing, which is to allow important issues to be determined regardless of whether they are raised by a party with a direct claim.
[18] The appellant brings a motion to introduce fresh evidence – a report of the provincial Auditor General concerning the redevelopment of Ontario Place – which raises a number of concerns about the manner in which decisions concerning the redevelopment were made. The appellant submits that this evidence was not available when the application was heard, and is relevant to the decision to grant public interest standing because it demonstrates that there is a class of individuals who could have claims against the government but for ROPA.
[19] The Crown’s factum includes a single paragraph in which it asserts that the application judge made no error in law or principle in denying public interest standing. The Crown made no submissions on standing during the hearing of the appeal.
[20] I am satisfied that the application judge erred in refusing to grant public interest standing, regardless of the fresh evidence.
[21] Standing requirements serve the important purpose of preserving limited judicial resources. They allow the court to screen out marginal or redundant cases and busybody litigants, while ensuring that it receives the submissions necessary to resolve disputes. A more relaxed and flexible approach has evolved in the public law context where different concerns arise, including the need to ensure that the exercise of public authority is not shielded from judicial scrutiny.
[22] The criteria governing the grant of public interest standing were set out by the Supreme Court in Downtown Eastside. The court asks three questions:(i) whether the claimant has advanced a serious and justiciable issue,
(ii) whether the claimant has a genuine interest in the issue, and
(iii) whether, in light of all the circumstances, the proposed suit is a reasonable and effective means of bringing the issue before the courts. [23] The problem with enumerating criteria is that they often come to be understood as boxes that must be ticked rather than simply relevant considerations. The Supreme Court warned against this approach in Downtown Eastside, at para. 36, emphasizing that the criteria were to be understood as “interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes” – purposes that include not only preserving limited judicial resources but also ensuring that government action can be subject to judicial scrutiny.
[24] The application judge applied two of the three criteria stringently, concluding that the appellant fell short of both the “genuine interest” and the “reasonable and effective means” criteria. She found that there was insufficient evidence in the record to determine whether the appellant has a genuine interest in the matter and that even if it did, the challenge “would better be brought to court by a party that wishes to assert a cause of action that is extinguished by s. 17(2) [of ROPA]”. With respect, each of these conclusions is in error.
[25] First, there is no doubt that the appellant has a genuine interest in the litigation. The bar is not high. A genuine interest is concerned with whether a person “has a real stake in the proceedings or is engaged with the issues they raise”: Downtown Eastside, at para. 43. The appellant is an organization that includes a wide range of citizens and community groups, all of whom are deeply concerned with the Ontario Place redevelopment. If the appellant does not have a genuine interest in challenging the constitutionality of ROPA, it is difficult to see how anyone would. Although the appellant does not have a claim that is affected by the immunity provisions in ROPA, those provisions are integral to the redevelopment of Ontario Place and the appellant clearly has a genuine interest in that redevelopment.
[26] Second, the issue for the application judge was whether the application was a “reasonable and effective means to bring the challenge to court”, not whether there was a better means of doing so. The issues raised in this application involve questions of law. Their resolution does not depend on evidence from someone who may be directly affected – someone whose cause of action was extinguished. Public interest standing was designed to liberalize the law, moving away from traditional requirements that limited the grant of standing. The application is a reasonable means of litigating the issues and the appellant’s organization is fully capable of addressing the issues raised in the application.
[27] The appellant is not a mere busybody, nor could it be said that permitting its application to proceed would waste judicial resources. Indeed, given the manner in which the application unfolded, no judicial economy was realized as a result of the decision to deny public interest standing: the application judge went on to consider the substantive application and the entire matter is now before this court on appeal.
[28] In summary, the application judge erred in denying the appellant public interest standing. It follows that the appellant was entitled to have its application determined on the merits. . Democracy Watch v. Ontario (Integrity Commissioner)
In Democracy Watch v. Ontario (Integrity Commissioner) (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a successful "motion to quash nine judicial review applications" which was grounded on lack of public interest standing:Law and Analysis
(a) Standard of Review
[44] A motion judge’s decision to grant or deny public interest standing is discretionary and entitled to deference: British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, 470 D.L.R. (4th) 289 (“CCD”), at para. 79. It is trite law that appellate courts are not entitled to interfere with discretionary decisions simply because they would have exercised the discretion differently: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 39, citing Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, at p. 1046. An exercise of discretion can be set aside, however, when a judge considered irrelevant factors, failed to consider relevant factors, reached an unreasonable conclusion, or acted on the basis of a wrong principle: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at para. 41.
[45] On the issue of public interest standing specifically, appellate intervention is warranted when the court below failed to weigh the three factors identified in Downtown Eastside cumulatively and purposively, or attached “particular weight” to one purpose of public interest standing rather than balancing all the purposes: CCD, at paras. 56, 89, 96. At the same time, standing is “fact- and context-specific”: CCD, at para. 109. Each case must be decided on its own merits.
[46] As the appellant submits, the test for public interest standing has evolved to become more flexible since Downtown Eastside. Nevertheless, the underlying drivers continue to be the sometimes conflicting policies of accountability, access to justice, and the need to preserve scarce resources: see generally CCD, at paras. 29-31. When a judge determines a public interest standing issue, they must weigh the relevant factors and reach a conclusion with a view to striking the most appropriate balance according to the facts of the particular case. Thus, deference to the motion judge, provided that they apply the right considerations, is an integral part of the reconciliation of the policies that underlie public interest standing determinations.
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[49] The motion judge cited the correct test for public interest standing and went on to consider each of the three factors. The motion judge did not use public interest standing “as a bar to access”, as DW submits. In accordance with Downtown Eastside, the motion judge instructed herself that the three factors were not a rigid “checklist” or “technical requirements”, but rather were to be considered in a “purposive, flexible and generous manner”: Downtown Eastside, at paras. 36, 53. She also instructed herself that on a motion to quash, the Commissioner had to persuade her that it was “plain and obvious” or “beyond doubt” that the applications could not succeed: see Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150 (Div. Ct.), at para. 18.
[50] As the Commissioner conceded that DW had a serious interest in the issues, the motion judge focused on the first and third prongs of the Downtown Eastside test. In the end, she concluded that this was “not a close call”, and that neither the first nor third prong of the Downtown Eastside framework favoured granting public interest standing.
(c) No Serious Justiciable Issue
[51] To constitute a serious issue, the question raised must be a “substantial constitutional issue” or an “important one”: Downtown Eastside, at para. 42, citing Nova Scotia Board of Censors v. McNeil, 1975 CanLII 14 (SCC), [1976] 2 S.C.R. 265, at p. 268; Minister of Justice (Can.) v. Borowski, 1981 CanLII 34 (SCC), [1981] 2 S.C.R. 575, at p. 589. The claim must be “far from frivolous”, although the court should not examine the merits of the case in other than a preliminary manner: CCD, at para. 49, citing Downtown Eastside, at para. 42. This factor addresses the concern about the allocation of scarce judicial resources and promotes access to justice by ensuring that judicial resources remain available to those who need them most: CCD, at para. 48.
[52] Although cases of public interest standing most often involve the validity of legislation, as in CCD and Downtown Eastside, it is now clear that public interest standing can be granted to challenge administrative state action: see Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6. In the final cumulative weighing required by Downtown Eastside, the seriousness of an issue may be viewed on a spectrum. Applications challenging individual exercises of discretion may not always weigh as strongly in support of public interest standing as constitutional challenges to legislation, particularly when the decision under review does not affect many people: see Lorne M. Sossin and Gerard Kennedy, Boundaries of Judicial Review: The Law of Justiciability in Canada, 3rd ed. (Toronto: Thomson Reuters Canada, 2024), at §3:19.
[53] The motion judge characterized the applications for judicial review as nine decisions concerning the conduct of individual lobbyists. She concluded that they collectively did not raise a serious issue. She did not accept that DW raised a genuine issue of statutory interpretation.
[54] I agree. Assuming that a decision to discontinue an investigation without making any finding of non-compliance is justiciable, six of the nine notices of application allege that the Commissioner unreasonably exercised his discretion to impose penalties on some lobbyists but not on others. The decision to impose a penalty is squarely within the Commissioner’s discretion: see LRA, s. 17.9. Since there is no right of appeal in the LRA, any application for judicial review would be confined to an assessment of the reasonableness of the Commissioner’s exercise of discretion: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Canadian Elevator Industry Education Program v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, at para. 66.
[55] I accept there is a strong public interest in the issue of lobbying generally. That alone, however, is not sufficient: see generally Canadian Elevator, at para. 57. Moreover, as the motion judge observed, a party cannot transform a review of an individual exercise of discretion into something akin to a public inquiry simply by bringing multiple applications for judicial review at the same time.
[56] While three of the nine applications allege the Commissioner adopted an unreasonable interpretation of s. 3.4 of the LRA, they do not identify any issue of statutory interpretation. Instead, as the motion judge observed, they speculate that the Commissioner has not been properly applying s. 3.4 based on the brief anonymized summaries of his investigations in the Annual Report.
[57] Finally, while all the applications allege institutional bias, the nature of the statutory scheme, and particularly s. 23 of the Members’ Integrity Act, 1994, S.O. 1994, c. 38, are complete answers to that argument: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at para. 22; Democracy Watch v. Canada (Attorney General), 2020 FCA 28, at para. 5, leave to appeal refused, 2020 CanLII 50448 (S.C.C.).
[58] Accordingly, the motion judge made no error in concluding that the applications did not raise a sufficiently serious issue to warrant public interest standing. Her decision was consistent with the purposes of limited standing and of granting public interest standing, including the principles of legality and access to justice. The applications were not an economical use of judicial resources given the issues raised in the notices of application.
[59] It follows that the motion judge also did not err in her treatment of the Federal Court and Federal Court of Appeal decisions that DW put to her, in which those courts considered the test and granted DW public interest standing. Those cases, unlike the present appeal, raised genuine issues of statutory interpretation that transcended its immediate interests: see Democracy Watch (FC); Democracy Watch v. Canada (Attorney General), 2018 FCA 194, 428 D.L.R. (4th) 739, leave to appeal refused, 2019 CanLII 37479 (S.C.C.). In Democracy Watch (FC), for example, the issue was whether parliamentary secretaries could be considered “staff” of a Minister for the purposes of the federal Lobbying Act. The court concluded that “there is merit in a judicial determination of who is and who is not staff”: at para. 59.
[60] DW argues that the motion judge mischaracterized Democracy Watch (FC), which concerned the interpretation of the federal Lobbying Act and the interpretation and application of the Lobbyists’ Code of Conduct. But that case raised a clear issue of statutory interpretation, which the court described as “a key question for judicial review”: at para. 60. As the motion judge found, DW raised no similar issue here. It cannot therefore be said that the motion judge erred in distinguishing this case, which DW concedes was not binding on her in any event.
[61] The parties did not raise the case of Democracy Watch v. Canada (Attorney General), 2022 FCA 208, in which Stratas J.A. granted DW public interest standing to pursue judicial review of the Conflict of Interest and Ethics Commissioner’s (“Ethics Commissioner”) decision regarding Prime Minister Trudeau and the “WE Charity” matter. Stratas J.A. found the issues were serious and justiciable and granted DW public interest standing partly out of a concern that without it, the “Commissioner’s decision will be immunized from any review”: at para. 9. However, in that case, DW alleged that the Ethics Commissioner erred in law and fact in interpreting the Conflict of Interest Act, S.C. 2006, c. 9: at para. 16; Democracy Watch v. Canada (Attorney General), 2024 FCA 158, at para. 5. Moreover, the Conflict of Interest Act contains a privative clause that bars judicial review by anyone except on the grounds of jurisdictional error, procedural unfairness, or fraud: see s. 66. In other words, there was no ability for the public office holder involved to seek judicial review of the Ethics Commissioner’s decision except on those limited grounds.
[62] I do not want to be taken as precluding the possibility that a sufficiently serious issue could arise in the context of an individual application for judicial review, even absent an issue of constitutional or legal validity: see e.g. Ecology Action Centre v. Nova Scotia (Environment and Climate Change), 2023 NSCA 12. But such an issue is not before the court in these applications.
(d) Not a Reasonable and Effective Means to Bring the Matter to Court
[63] The third Downtown Eastside factor requires that the proposed action be a reasonable and effective means to bring the matter before the courts. This requires courts to ask whether granting standing is desirable to ensure lawful action by government actors, and whether granting standing will promote access to justice by disadvantaged persons whose legal rights are affected: CCD, at para. 52, citing Downtown Eastside, at paras. 49, 51. Conversely, this factor is also concerned to prevent the unnecessary overburdening of the justice system, because if there are other means to bring the matter before the court – particularly by those most directly affected by the issues – scarce judicial resources may be put to better use: CCD, at para. 53.
[64] When assessing the third Downtown Eastside factor, courts may examine the following non-exhaustive considerations: what resources and expertise the plaintiff can provide in presenting the issue; whether the case is of public interest and thus transcends the interests of those most directly affected by the challenged law or action; whether there are “realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination”; and the potential impact of the proceeding on others: CCD, at para. 55, citing Downtown Eastside, at para. 51.
[65] The motion judge concluded that the applications for judicial review were not a reasonable and effective means to bring the issues before the court. In particular, she found that permitting the applications for judicial review to proceed would undermine the statutory scheme. She relied both on the confidentiality provisions of the LRA and on s. 17.8, which provides that a lobbyist may seek judicial review from the Commissioner’s decision within 60 days. She reasoned that this section suggested that only lobbyists were to have standing under the LRA.
[66] The appellant argues that the motion judge erred with respect to this consideration because she effectively required that the judicial review application be the only effective means to bring the matter to court, even though Downtown Eastside relaxed this requirement such that an application need only be an effective means to bring the matter before the court.
[67] I do not agree with DW that the motion judge applied the outdated standard of “no other reasonable and effective means”, rather than “a reasonable and effective means”, as Downtown Eastside requires. Rather, she applied this consideration with an eye to the rationales driving public interest standing, as I reviewed earlier in these reasons. Read fairly, the motion judge’s reasoning does not flow from a technical or compartmentalized application of “the only” rather than “a” reasonable means, but from a consideration of the statutory scheme and the broader context of the policy rationales underlying public interest standing. Paragraph 44 of her reasons reads as follows:Democracy Watch argues that there is no other effective method for challenging the Commissioner’s decisions. Lobbyists have no interest in challenging a decision that results in no finding of misconduct or no penalty. There is some merit to the argument, but it runs contrary to the statutory scheme. Democracy Watch may have legitimate concerns about a scheme that provides for very little public information about the Commissioner’s investigations. However, this does not give the court the authority to ignore the statutory scheme. Giving Democracy Watch public interest standing to bring these applications for judicial review would effectively allow for circumvention of the scheme. This is not a reasonable way to bring the issue before the courts. [68] This paragraph answers the appellant’s and interveners’ submissions on this point. First, the motion judge expressly applied the “a reasonable means” test rather than “the only” reasonable means. Second, the motion judge readily acknowledged the potential force of the appellant’s argument that judicial review was a reasonable means of getting the matter before the court because the lobbyists themselves were highly unlikely to file complaints. She went on, however, to consider these factors within the context of the statutory scheme as a whole, concluding that granting public interest standing in this case would undermine or actually conflict with it.
[69] The appellant argues that the motion judge gave undue weight to the private interests of the lobbyists and insufficient weight to the principle of legality. It is not the function of an appellate court to reweigh the factors, so long as the judge below has not erred by attaching “particular weight” to any purpose of standing: CCD, at paras. 31, 56, 58. The Supreme Court has been clear that no single factor is determinative: CCD, at para. 89; Downtown Eastside, at para. 20. In any event, I do not agree that the motion judge gave undue weight to any one factor. Her reasons reflect a flexible, cumulative, and proportionate balancing of the required factors.
[70] I do agree that it was inaccurate for the motion judge to suggest that s. 17.8 had the effect of limiting standing to the lobbyists against whom the Commissioner had made a finding of non-compliance. First, it appears that the effect of s. 17.8, which pre-dated the general 30-day time limit for judicial review now found in s. 5(1) of the JRPA, was to set a time limit on judicial review. More importantly, the Supreme Court has repeatedly emphasized that “legislatures cannot shield administrative decision making from curial scrutiny entirely”: Vavilov, at para. 24; Yatar, at para. 61. There is nothing in s. 17.8 that suggests it is to act as a privative clause or that it should be read to derogate from the general right to judicial review in s. 2 of the JRPA.
[71] That said, the motion judge’s error was not overriding: CCD, at para. 96. Section 17.8 was only one part of the statutory scheme she considered, and which she found weighed against granting public interest standing. Considered cumulatively with her conclusion on the first factor, her overall conclusion that public interest standing was inappropriate in these circumstances remains sound.
[72] In addition, I see no error in the motion judge’s conclusion that the applications for judicial review would conflict with the strong confidentiality provisions of the LRA, which extend beyond simply protecting the identity of the lobbyists. Section 17.10(1) expressly prohibits the Commissioner from disclosing any information about an investigation, including the names of the lobbyists, except in certain prescribed circumstances. As the Commissioner submitted on appeal, the applications for judicial review would necessarily have to proceed in a factual vacuum. In light of that, DW could not satisfy the motion judge that the applications would be presented “in a sufficiently concrete and well-developed factual setting”: Downtown Eastside, at para. 51. In the circumstances, a confidentiality order protecting the identities of the lobbyists was not a practical solution.
[73] Read as a whole, the motion judge considered and applied the correct factors, as I discussed above. She explained why she reached the conclusions that she did, taking the statutory scheme into account. In short, she exercised her discretion consistently with the principles and case law on public interest standing.
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