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JR - Justiciability (3). BizTech v. Accreditation Canada [JR justicibility and sub-delegated statutory powers]
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court considers whether these issues are JR-justiciable, here in light of the public-private distinction and of statutory sub-delegation to an otherwise private body [here, Accreditation Canada]:Public Character
[72] I find that this exercise of statutory authority was sufficiently public in character to be amenable to judicial review.
[73] In Wall, at para. 14, the Supreme Court of Canada explained the limited reach of public law: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. Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority. [74] In Setia, at paras. 33-34, the Court of Appeal for Ontario emphasized that a determination of whether any particular decision is subject to public law and its remedies requires a consideration of the relevant circumstances in the particular case and adopted a helpful summary of factors from Air Canada v. Toronto Port Authority, 2011 FCA 347, 426 N.R. 131, at para. 60. The court in Air Canada, at para. 60, also held that “[w]hether or not any one factor or a combination of particular factors tips the balance and makes a matter ‘public’ depends on the facts of the case and the overall impression registered upon the Court.” The factors are as follows:(i) the character of the matter for which review is sought;
(ii) the nature of the decision-maker and its responsibilities;
(iii) the extent to which a decision is founded in and shaped by law as opposed to private discretion;
(iv) the body's relationship to other statutory schemes or other parts of government;
(v) the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
(vi) the suitability of public law remedies;
(vii) the existence of a compulsory power; and,
(viii) an "exceptional" category of cases where the conduct has attained a serious public dimension. [75] Regarding the character of the matter for which review is sought, the Respondents submit that it is essentially a private contractual dispute which only has consequences to a career college and its students. I do not question that there is a significant contractual element to the dispute. More will be said about this when it comes to the motion for a stay of proceedings in favour of arbitration. But that is only one perspective of the matters under review. The other perspective is BizTech’s. There is substance to their argument that Accreditation Canada has exercised a statutory power of decision in that the Decision determined “the eligibility of any person or party to receive or continue the benefit of a license”; “licence” being defined as including “any permit, certificate, approval, registration or similar form of permission required by law”: s. 1 of the JRPA. Said differently, the character of the matter for which review is sought has this dual character, one being of a very public nature.
[76] In J.N. v. Durham Regional Police Service, 2012 ONCA 428, 284 C.C.C. (3d) 500, at para. 18, a body that was neither created by statute or regulation—an informal decision-making body created by the Durham Regional Police Service—was found to be a statutory body in that the decision it made about the retention of information held by the police, was one that affected “legal rights and privileges … and in that sense involves the exercise of a ‘statutory power of decision’”. This ad-hoc body was found to be judicially reviewable even though its connection to the statutory body, the Durham Regional Police Service, was far less direct than Accreditation Canada to the CMRITO, the statutory body, where the regulation contemplates the delegation of statutory authority.
[77] While BizTech submits that the Decision has broader public impact than contended by the Respondents, in administrative law, a decision is a public one “where it involves questions about the rule of law and the limits of an administrative decision maker's exercise of power”: Wall, at para. 20. Ensuring that a statutory delegate’s power to approve programs necessary for professional registration stays within its proper limits has a significant public dimension.
[78] The nature of Accreditation Canada is that of a private entity and not a governmental one. It is an independent, non-governmental, not-for-profit corporation incorporated under the Canada Not-for-Profit Act. Accreditation Canada delivers a wide range of assessment programs for health and social service organizations and provides accreditation services to over 200 healthcare educational programs. Therefore, in all these ways, its nature and responsibilities do not lend themselves to a public characterization.
[79] On the other hand, it is the exercise of its power as a delegate pursuant to s. 4(1)1(i), its relationship to the CMRITO, and the CMRITO’s role as a regulator of a health profession, that distinguishes Accreditation Canada’s Decision in this context from other scenarios where it may offer its services to clients in a private capacity, sometimes just to assist the clients for the purpose of self-improvement. In other words, the accreditation of BizTech is not only shaped by contractual standards and obligations and private discretion but also the public interest in ensuring that trained and qualified health professionals are registered to practice. The discretion it exercised in making the Decision must take this into account.
[80] Essentially, Accreditation Canada is acting in the place of the CMRITO under s. 4(1)1(i) in determining whether to approve BizTech’s DMS Program. As a health profession regulator, there are statutory requirements requiring the CMRITO’s exercise of authority to take account of the public interest, including s. 3 of the RHPA which mandates the Minister to ensure the health professions are regulated and coordinated in the public interest, and s. 2.1 and s. 3(1) and (2) of the Code, which sets out the duty of the CMRITO to serve and protect the public interest in carrying out its objects including in developing, establishing, and maintaining standards for certificates of registration and for programs and standards of practice to assure the quality of the practice of the profession.
[81] If a body exercises powers that do not accrue to private organizations, and that are only vested on the body by statute for the benefit of the public, then it is subject to judicial review. In some instances, a body may have both public and private powers. The body is generally only subject to judicial review when and to the extent that its public powers are in question. When it exercises its private powers, only private remedies are generally available: Knox v. Conservative Party of Canada, 2007 ABCA 295, 286 D.L.R. (4th) 129, at paras. 20, 22.
[82] Regarding the factor of compulsion, while BizTech is not compelled to apply to have a DMS program, it remains a practical reality that Accreditation Canada is the only organization through which it could obtain the necessary approval from the CMRITO.
[83] Finally, although the Respondents contend that only arbitration will provide BizTech with the remedy that it seeks (i.e., accreditation or accreditation with conditions), I find that public law remedies remain suitable.
[84] As BizTech pointed out, the issue of whether judicial review is available in these circumstances has close parallels to the Trinity Western University line of cases. In those authorities, it was never disputed that the decision to approve university programs by a regulator as prerequisite education for the registration of professionals was properly subject to judicial review. In Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, the British Columbia College of Teachers refused to approve Trinity Western University’s application for permission to assume full responsibility for their teacher education program because of Trinity Western University’s apparent discriminatory practices against the LGBTQ+ community. In Trinity Western University v. The Law Society of Upper Canada, 2015 ONSC 4250, 126 O.R. (3d) 1 (Div. Ct.), at para. 60, aff’d 2016 ONCA 518, 398 D.L.R. (4th) 489, aff’d 2018 SCC 33, [2018] 2 S.C.R. 453, the benchers of the Law Society of Upper Canada denied accreditation to Trinity Western University’s proposed law school due to its code of conduct prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman”: at paras. 14, 106. No one raised the issue of whether the decision by the Law Society of Upper Canada was sufficiently public in character. Trinity Western was also involved in judicial reviews, in two other provinces, regarding legal education approval, and the issue of whether the decisions were subject to judicial review was never raised: see Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293 and Trinity Western University v. Nova Scotia Barrister’s Society, 2016 NSCA 59.
[85] Justiciability was not raised as an obstacle to judicial review in any of these cases. Similar to the present matter, the regulators were tasked with approving an education program that determined whether students could be admitted to their profession. This was not considered ancillary to the regulator’s mandate as the Respondents contend in this case. Rather, it was integral to its public interest objectives. The only difference in the present case is that this responsibility was delegated to an external body, Accreditation Canada.
[86] Looking at the material factors collectively on the specific facts of this case, I find that the balance has been tipped and the Decision is sufficiently public in character to be judicially reviewable.
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