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DBPA - Discriminatory Business Practices Act. The Centre for Israel and Jewish Affairs v. Minister of Public Affairs and Business Delivery and Procurement
In The Centre for Israel and Jewish Affairs v. Minister of Public Affairs and Business Delivery and Procurement, (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here brought against a decision of "the Director under the Discriminatory Business Practices Act" (DBPA) which disagreed that provisions of "two agreements the University of Windsor entered into with student groups in the context of protest encampments on university property" violated the DBPA:[3] This judicial review decision is about one specific term in the student agreements, and whether it violated the terms of one specific provision in the Act. It is not a decision about any of the other terms in the agreements or whether any other legislation would apply.
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Discriminatory Business Practices Act
[5] The purpose and intent of the Act is set out in s. 2 – to prevent discrimination of “persons employed in or engaging in business.”
[6] The Act defines three categories of discriminatory business practices in s. 4, including refusals to engage in business (s. 4(1)1), refusals or failures to employ, appoint or promote a person (s. 4(1)2), and the third category, at issue here (s. 4(1)3. Each category includes an element of conducting or engaging in business. Section 4 provides as follows:4(1) For the purposes of this Act, the following shall be deemed to be discriminatory business practices:
1. A refusal to engage in business with a second person, where the refusal,
i. is on account of an attribute,
A. of the second person, or
B. of a third person with whom the second person conducts, has conducted or may conduct business; and
ii. is a condition of the engaging in business of the person making the refusal and another person.
2. A refusal or failure to employ, appoint or promote a second person or a dismissal or suspension of a second person from employment, where the refusal, failure, dismissal or suspension,
i. is on account of an attribute,
A. of the second person, or
B. of a third person with whom the second person conducts, has conducted or may conduct business; and
ii. is a condition of the engaging in business of the person making the refusal, failure, suspension or dismissal and another person.
3. Entering into a contract that includes a provision that one of the parties to the contract,
i. will refuse to engage in business with a second person; or
ii. will refuse or fail to employ or promote or will dismiss or suspend from employment a second person,
on account of an attribute of the second person or of a third person with whom the second person conducts, has conducted or may conduct business.
[Emphasis added.] [7] The applicant relies on s. 4(1)3(ii), submitting that the University’s agreements with the student groups are contracts that include a provision under which the University “will refuse or fail to employ or will dismiss or suspend from employment” University of Windsor professor(s) or Israeli academics. The applicant does not submit that the refusal, failure or other conduct in s. 4(1)3(ii) has happened, nor that there needs to be a prospect that it will happen, because s. 4(1)3 only requires that the contract be “entered into” and meet the other requirements of s. 4 of the Act.
[8] Subsection 4(2) defines “engaging in business” as including “selling goods or services to or buying goods or services from, and “engage in business” has a corresponding meaning.”
[9] Under ss. 1 and 7 of the Act, the person designated as the Director under the Ministry of Consumer and Business Services Act, R.S.O. 1990, c. M.21, receives and acts on complaints under the Act. The Act provides for certain orders that the Director may make under the Act.
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Decision
[18] After reviewing the materials provided by the applicant, the Director concluded that the Act was not engaged by the two agreements. The Director found that the University was not “engaging in business,” as it is a public academic institution with the primary purpose of education and research, not making a profit, citing Beauchamp v. North Central Predators AAA Hockey Assn., (2005) 2004 CanLII 48698 (ON SC), 247 D.L.R. (4th) 745 (Ont. S.C.).[2]
[19] The Director found that even if he had concluded that the agreements were subject to the Act, he would have determined that the requirements of s. 4(1)3(ii) were not met because the agreements did not require the University to refuse, fail to employ or promote, dismiss or suspend from employment another person. The Director found that the Provision appeared to prevent the University from pursuing “institutional academic agreements with Israeli universities” unless supported by the Senate.
[20] The Director noted that the Decision and reasons did not speak to the propriety (or lack thereof) of the University entering into the agreements. Before this Court, the applicant emphasized that it does not object to any other provision in the agreements – only that part of the Provision that it submits falls within s. 4(1)3(ii).
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Did the Director err in finding that the Act did not apply to the student agreements because the University is a public academic institution?
[24] There is no issue that the University is not a business. None of the parties say that it is. The applicant submits that in this case the University was “engaging in” business, as set out in s. 2 of the Act, and its actions met the requirements of s. 4(1)3(ii), which does not require that the University be a business. The applicant submits that the Director’s Decision that the agreements are not caught by that subsection is unreasonable.
[25] In oral argument, the court heard different perspectives on whether or not the University, although not a business, could be found to be conducting or engaging in business under the Act, including counter-factual examples and possibilities.
[26] Although we have considered all submissions made, we conclude that this application for judicial review can and should be addressed on its specific facts regarding the Provision in the two agreements. We need not address the bigger issue of whether circumstances may arise, that are not before the Court, leading to the conclusion that the University is conducting or engaging in business in some other case.
[27] The main issue is therefore whether the Director’s interpretation of the Act in the circumstances of this case is reasonable. There is no dispute that the Act originated as a result of concerns relating to the Arab boycott of Israel and the effects it could have on the Ontario marketplace: Beauchamp, at para. 50. Beauchamp, applied by the Director, remains the main prior decision interpreting the Act. As noted by the court in Beauchamp, at paras. 51-52, the Act is human rights legislation of a relatively unique kind, to be considered within its context and purpose to prohibit discriminatory business relationships.
[28] The University also puts forward its own statute, which was not before the Director, as relevant to the issue of whether the Decision is reasonable. The University relies on its objects and purposes as set out in s. 3 of the University of Windsor Act, 1962-1953, amended by Bill Pr35, including the advancement of learning and the dissemination of knowledge and the development of its members and students and betterment of society.
[29] The applicant submits that the Decision is unreasonable for several reasons. It says s. 4(1)3(ii) does not require that the contracting party’s “primary purpose” be to engage in business or have a profit-making objective. It also submits that the Director wrongly relied on Beauchamp. The applicant points to an order under the Act made against the Ontario Science Centre in 1991 as support for its position that the contracting party need not have the primary purpose of engaging in a business.
[30] The governing statutory scheme will generally be relevant to evaluating whether a given decision is reasonable and is likely to be the most salient aspect of the relevant legal context: Vavilov, at paras. 68, 106 and 108. We therefore begin with the interpretation of the Act.
[31] The modern rule of statutory interpretation is not at issue. It requires the court to consider the plain language of the provision in light of its purpose and the entire relevant context: Vavilov, at para. 118. Section 4(1)3(ii) therefore must be read in context. The Act is expressly aimed at business relationships. It is titled the Discriminatory Business Practices Act. Section 2 states the purpose and intent of the Act is to prevent discrimination “of persons employed in or engaging in business.” Subsection 4(1) describes practices that, on its wording, “shall be deemed discriminatory business practices.” And s. 4(1)3 itself deems it a discriminatory business practice where the contract includes a provision that one of the parties will engage in conduct with respect to a second person “on account of an attribute of the second person or of a third person with whom the second person conducts, has conducted or may conduct business” (emphasis added throughout).
[32] The Supreme Court of Canada has established a test for determining whether an entity is carrying on business. Ontario (Regional Assessment commissioner) v. Caisse Populaire de Hearst, 1983 CanLII 45 (SCC), [1983]1 S.C.R. 57, sets it out at p. 64:If the preponderant purpose is the making of a profit, then the activity may be classified as a business. However, if there is another preponderant purpose to which any profit earned is merely incidental, then it will not be classified as a business. [33] Considering the context and wording to s. 4(1)3(ii), it was reasonable for the Director to determine the Provision did not apply. We do not need to determine whether the University could be found to be engaging in business on a different set of facts. In this case, the complaint was about the Provision in the student agreements, which addressed the University’s academic partnerships and agreements with Israeli universities. Institutional academic agreements are within a core non-business purpose of the University. It was reasonable for the Director to conclude the University was not a business nor engaging in business in relation to the Provision.
[34] We do not find the Director’s reliance on Beauchamp to be unreasonable. Beauchamp found that the Act did not apply to the residency and mobility rules of minor hockey associations. The court reasoned the hockey associations were not businesses, nor engaged in business because, among other things, their preponderant purpose was not the making of profit. Although the facts in Beauchamp did not directly engage s. 4(1)3, the Director was entitled to consider and rely on the court’s reasoning to justify the inapplicability of the Act to the University.
[35] The 1991 Ontario Science Centre case does not render the Director’s Decision unreasonable. The Science Centre entered into a contract with the Sultanate of Oman to provide and install exhibits for a children’s museum in Oman. The contract included a clause boycotting Israeli goods and services. There is no administrative decision by the Director, only an “assurance of voluntary compliance” entered into by the Science Centre with little if any precedential value. In any event, the available information is that the Science Centre stood to gain profit from the agreement with Oman. The situation involving the Science Centre is not similar to the case before this Court.
[36] Overall, we find the Director’s conclusion that the Act did not apply to the Provision in the student agreements reasonable.
Did the Director err in finding that the requirements of s. 4(1)3(ii) were not met?
[37] The applicant also takes issue with the Director’s alternative finding that the student agreements did not meet the requirements of s. 4(1)3(ii). In the applicant’s submission, the effect of the Provision is: first, that Israeli academics will be unable to teach or research at the University; and second, that University faculty members will be precluded from taking advantage of opportunities at Israeli universities which would be a basis for advancement and promotion at the University.
[38] The applicant relies on the letters of support, which raise issues about the possible impact of the Provision on professors. However, the issues raised in the letters and the applicant’s submissions go a great distance away from the words of the Provision and the Act. First, s. 4(1)3(ii) requires that the Provision “will” mean that the University takes one of the listed steps (to refuse or fail to employ or promote or dismiss or suspend a professor from employment). The Provision is not mandatory. It is subject to the role of the Senate. The applicant raises the concern that including such a step should not be an easy route out of the Act. We understand that concern, but it does not arise here. The role of the Senate is established in the statutory regime, not a step added to avoid responsibility, as set out in the University of Windsor Act and related By-laws. Again, the Provision relates to institutional academic agreements, not lower-level agreements. We are not persuaded that the role of the Senate is irrelevant.
[39] Next, any uncertainty about the impact on professors is expressly addressed in the Provision itself. It states: “This does not prevent individual academics at the University of Windsor from working (or collaborating) with academics in Israel.”
[40] Third, to the extent the applicant’s submissions focus on Israeli professors, the applicant has not demonstrated how the University is or would be in an employment relationship with those professors such that the Provision would require the University to “refuse to employ or promote or dismiss or suspend them from employment” as required by the Act.
[41] The Director’s conclusion that the requirements of s. 4(1)3(ii) were not met therefore was reasonable.
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