Judicial Review - Public versus Private (1) [Setia, Paine]. Setia v. Appleby College
In Setia v. Appleby College (Ont CA, 2013) the Court of Appeal reversed, on jurisdictional grounds, a judicial review that quashed an employee's termination from a private school. The case starts out with a useful history of the JRPA and then proceeds with a salutory ruling on the nature and role of judicial review, focussing on it's public (as opposed to private) nature:
 Gautam and his parents brought an application for judicial review of the decision to expel him. The Setias sought an order quashing the decision. The application was brought under s. 2(1)1 of the JRPA. That section reads as follows:. Paine v. University of Toronto et al.
2(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: A "statutory power" is defined in s. 1 of the JRPA. It includes a right conferred by statute to exercise a "statutory power of decision", which in turn is defined in this way:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
"statutory power of decision" means a power of right conferred by or under a statute to make a decision deciding or prescribing,...
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, orand includes the powers of an inferior court.
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
 The first [SS: the only issue appealed] issue was whether it had jurisdiction to make the order sought. Appleby argued that the Divisional Court did not have jurisdiction to judicially review the decision, although it acknowledged that the rules of fairness governed student discipline matters as a matter of contract between Appleby and the Setias. However, the Divisional Court was unanimously of the view that the decision to expel Gautam concerned "administration and discipline" as referred to in s. 11 of the Appleby Act and was therefore a statutory power of decision for the purposes of the JRPA. It said simply that this rendered the decision subject [page485] to judicial review under that Act. Paragraph 18 of its reasons says this:
Decisions by Appleby's officers concerning "administration and discipline" constitute an exercise of a statutory power. They are subject to judicial review under s. 2(1) of the Judicial Review Procedure Act.....
 The sole issue in this appeal is whether the Divisional Court was correct in finding that it had the jurisdiction under [page486] the JRPA to make an order for judicial review quashing the decision to expel Gautam.
 The Divisional Court reasoned that Gautam's expulsion constituted the exercise of a statutory power of decision, as defined in s. 1 of the JRPA. It was therefore subject to judicial review under s. 2(1)1 of that Act.
 Given that the Divisional Court focused its analysis on the text of the statute, it is useful to begin the assessment of its decision by putting it in the context of the history and purpose of the JRPA. The JRPA was enacted in 1971 in response to the Ontario Royal Commission Inquiry into Civil Rights in Ontario, led by the Honourable James C. McRuer. The commission found that the procedures in Ontario for seeking the various prerogative remedies for relief from administrative action were far too technical and complex. Simplification was required.
 The JRPA was the legislative response. In David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001), Professor Mullan aptly described its purpose, at pp. 433-34:
The basis of the Ontario Act was simple. It introduced a single application for judicial review that consolidated all the former public law remedies available in the province with the exception of habeas corpus and quo warranto. On the coming into force of the Act, a challenge to allegedly unlawful administrative action could be commenced by this application for judicial review, and the court could take jurisdiction provided the grounds on which the review application was based and the relief that was sought came within the range of what was previously available by way of relief in the nature of certiorari, prohibition, and mandamus as well as an action for a declaration or an injunction.(Footnotes omitted)
 The prerogative remedies brought together by the JRPA (mandamus, prohibition and certiorari) constitute the mechanisms that have been used by the courts to ensure that public decision-makers observe the principles and rules of public or administrative law by which they must function. While the notion of public law defies full and precise definition, the courts use the prerogative remedies to supervise persons and bodies that derive their powers from statute in their performance of functions of a public or governmental nature.1
 In this sense, public law is to be contrasted with private law, which deals with private persons and bodies and their property and relationships. The challenge is to describe the respective domains of these two branches of law, and thus to determine [page487] whether public or private law principles and remedies govern in a particular case.
 In Dunsmuir v. New Brunswick,  1 S.C.R. 190,  S.C.J. No. 9, 2008 SCC 9, the Supreme Court of Canada addressed the domains of private and public law in the context of a public employee who holds the status of a public office holder but who also has a contract of employment protecting against wrongful dismissal. The court said that the remedy for that individual is in private law not in public law. That is, relationships that are in essence private in nature are redressed through private law not public law.
 In Martineau v. Matsqui Disciplinary Board, 1979 CanLII 184 (SCC),  1 S.C.R. 602,  S.C.J. No. 121, Dickson J. (as he then was), concurring, described the scope of public law in the context of the public law remedy of certiorari. The order granted by the Divisional Court pursuant to s. 2(1)1 of the JRPA was just this sort of order. It quashed the decision to expel Gautam. That is, it granted relief that prior to the JRPA would have been an order in the nature of certiorari. Dickson J. described when an order of this kind is available, at pp. 622-23 S.C.R., and again, at p. 628 S.C.R., of Martineau:
In my opinion, certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests, property, privileges, or liberties of any person. The question in this appeal is whether the Divisional Court had jurisdiction under the JRPA to judicially review the expulsion decision. In other words, does public law reach this decision so that the public law remedy in the nature of certiorari available under the JRPA can be applied to it?
Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.
 The Divisional Court's answer turned entirely on its conclusion that the expulsion decision constituted the exercise of a statutory power of decision. This made the decision, in its view, subject to the order for judicial review under the JRPA sought by the Setias.
 In my view, it is doubtful that the expulsion decision qualifies as the exercise of a statutory power of decision. The JRPA definition requires that the power to make the decision be conferred "by or under a statute". The legislation must authorize the decision-maker to make the decision in question. It is this [page488] effecting of the will of the legislature by the decision-maker that gives a sufficient public character to this decision to warrant judicial review. In Paine v. University of Toronto (1981), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770,  O.J. No. 3187 (C.A.), this court put the point this way, at p. 772 O.R.:
[I]t is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in the exercise of a "statutory power of decision"; and I think that must be a specific power or right to make the very decision in issue. Here the Appleby Act simply authorized the board of Appleby to confer on its officers and employees "such powers . . . of discipline as it may think necessary". It was the board not the legislature that decided the power to expel was necessary, and that the head of school should exercise that power. It is at least arguable that the nexus between the Appleby Act and the expulsion decision is not specific enough to make the latter a statutory power of decision. The expulsion decision arguably effects the will of the board more than the will of the legislature.
 However, assuming that the expulsion decision constitutes the exercise of a statutory power of decision, the more important question is whether this necessarily means that it can be reviewed by public law and hence reached by the public law remedy imposed by the Divisional Court.
 It must be underlined that the remedy quashing the expulsion decision was made pursuant to s. 2(1)1, not s. 2(1)2 of the JRPA: it was a remedy that prior to the JRPA would have been an order in the nature of certiorari. There is nothing in the JRPA that expressly suggests that the jurisdiction to make an order under s. 2(1)1 is determined by whether the decision under review is the exercise of a statutory power of decision.
 As Professor Mullan has said in Administrative Law: Cases, Text and Materials, 5th ed. (Toronto: Edmond Montgomery, 2003), at p. 1111, while early judicial interpretations of the JRPA linked the availability of relief in the nature of the prerogative writs under s. 2(1)1 to the requirement of a statutory power of decision under s. 2(1) 2, that approach was not sustainable, and has since been clearly rejected by cases like Bezaire (Litigation Guardian of) v. Windsor Roman Catholic Separate School Board (1992), 1992 CanLII 7675 (ON SC), 9 O.R. (3d) 737,  O.J. No. 1478 (Div. Ct.). The public law remedies giving relief in the nature of the prerogative writs are not dependent on the presence of a statutory power of decision.
 The same is true in British Columbia, which has legislation in most respects identical to the JRPA. In Mohr v. Vancouver, New Westminster and Fraser Valley District Council of Carpenters, 1988 CanLII 3189 (BC CA),  B.C.J. No. 2075, 32 B.C.L.R. (2d) 104 (C.A.), [page489] the British Columbia Court of Appeal made clear that an order for judicial review quashing a decision was not dependent upon that decision being a statutory power of decision.
 In my view, the jurisdiction to make an order for judicial review quashing the expulsion decision does not depend on whether the decision is the exercise of a statutory power of decision. Rather, the jurisdiction provided by s. 2(1)1 of the JRPA turns on whether the expulsion decision is the kind of decision that is reached by public law and therefore a decision to which a public law remedy can be applied. This reflects the purpose of the JRPA, namely, to provide a simplified process to obtain public law remedies in those circumstances where public law applies.
 The assessment of whether a particular decision is subject to public law and its remedies requires a careful consideration of the relevant circumstances of the particular case informed by the experience of the case law. I agree with the approach of Stratas J.A. in Air Canada v. Toronto Port Authority,  F.C.J. No. 1725, 2011 FCA 347. He said this, at para. 60:
There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether 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. In his very helpful reasons, Stratas J.A., at para. 60, described a number of relevant factors disclosed by the case law:
-- the character of the matter for which review is sought; Four are particularly germane in this case.
-- the nature of the decision-maker and its responsibilities;
-- the extent to which a decision is founded in and shaped by law as opposed to private discretion;
-- the body's relationship to other statutory schemes or other parts of government;
-- the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
-- the suitability of public law remedies;
-- the existence of a compulsory power;
-- an "exceptional" category of cases where the conduct has attained a serious public dimension. [page490]
 The first factor is the nature of the decision-maker and its responsibilities. Here Appleby is the effective decision-maker. It was created by statute, clearly an important consideration that often points strongly towards permitting judicial review. The public flavour this provides is however significantly diminished in this case, because the Appleby Act is a private statute not part of the general law, and hence not a law with wide public effect.
 Appleby's mission is to engage in educating young people, an important public function which no doubt gives its educational activities a public character, certainly to the extent that Appleby is regulated by the Education Act in doing so. While there may be a public dimension to certain aspects of Appleby's conduct which are subject to judicial review, this does not mean that every action taken by Appleby is subject to judicial review. Many of its decisions will concern only private matters with limited connection to Appleby's educational role under the Education Act. The decision taken by Appleby here is one of discipline of a student. While that decision may, to some extent, be connected to Appleby's educational role, it is not regulated by the Education Act, but rather by the contract between parents and the school. Thus, neither Appleby's statutory origin nor its educational mission provide any significant public character to the expulsion decision.
 The second consideration is the decision-maker's relationship to other parts of government or other statutory schemes. While important in some cases, that is of no moment here. Appleby is a private school whose only interaction with government is its modest relationship to the Ministry of Education. Its actions can hardly be seen as being directed, or significantly influenced, by government, or performing a service at the behest of government. This makes it less likely that its discipline decisions are seen as a public matter.
 The third relevant consideration here is the character of the matter for which review is sought. That matter is the expulsion decision concerning an individual student at Appleby, a private school. It is the kind of decision that could affect only the students who choose to attend Appleby. It is not of broader import to members of the public. In my view, that tends to make the decision more private than public in nature.
 The final, and in some ways the most important, consideration is the extent to which the expulsion decision is shaped by private law rather than public law. That decision is sourced in the private legislation of the Appleby Act, but only in the sense that the Act establishes the board of governors and gives it the [page491] discretion to confer on its head of school the powers of discipline it thinks necessary. However, the criteria upon which the expulsion decision is made are provided by the private law of the contract between Gautam's parents and Appleby. Although the Setias seek to use public law to impose procedural obligations on Appleby in making that decision, Appleby acknowledges that the Setias are protected in this regard by their contract. The analogy with Dunsmuir suggests that in these circumstances, the Setias' remedy should be in private law, not in public law.
 In summary, even if the expulsion decision is considered a statutory power of decision because it can be said to be ultimately sourced in legislation, that does not answer the question raised in this appeal. I recognize that in many cases the presence of a statute will strongly point to the availability of judicial review. However, here the other considerations I have outlined must also be placed in the balance to determine whether the Divisional Court had jurisdiction under s. 2(1)1 of the JRPA to issue the order for judicial review quashing the expulsion decision. When that is done, I think the conclusion is clear that the decision is not the kind of matter reached by public law. It simply does not have a sufficient public dimension. It is not something to which public law remedies can therefore be applied. The Divisional Court did not have jurisdiction under the JRPA to issue the order for judicial review.
 The appeal must be allowed. ...
In Paine v. University of Toronto et al. (Ont CA, 1981) the Court of Appeal, after dismissing an argument that a university professor's denial of tenure and termination was a 'statutory power of decision', moved to consider whether it was subject to the prerogative writs. It held that the university's actions were more of a private employment matter (and thus contractual) than a public statutory one, and thus it did not the court's judicial review jurisdiction to quash the decision:
Not every decision of a statutory body is subject to the prerogative remedies. In the early days of the revival of these ancient remedies to control the jurisdiction and to enforce the duties of administrative tribunals, there was a requirement that the impugned decision be one made by a person or public body having a duty to act judicially; and not by one acting in a purely administrative capacity. But the scope of the remedies has been extended, and in Martineau v. Matsqui Institution Disciplinary Board, 1979 CanLII 184 (SCC),  1 S.C.R. 602 at 622, 106 D.L.R. (3d) 385, 50 C.C.C. (2d) 353, Dickson J. said that:. Paine v. University of Toronto et al.
...the application of a duty of fairness with procedural content does not depend upon proof of a judicial or quasi- judicial function. Even though the function is analytically administrative, courts may intervene in a suitable case.And at pp. 628-29 he stated the following conclusions:
1. Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.The very scope of the remedy signals caution to its employment.
2. A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy- oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum. That is what emerges from the decision of this court in Nicholson [Re Nicholson and Haldimand-Norfolk Regional Board of Com'rs of Police, 1978 CanLII 24 (SCC),  1 S.C.R. 311, 88 D.L.R. (3d) 671, 23 N.R. 410]. In these cases, an applicant may obtain certiorari to enforce a breach of the duty of procedural fairness.
There can be no doubt that the University of Toronto is a statutory body amenable to certiorari. In Re Polten and Governing Council of University of Toronto et al. (1975), 1975 CanLII 709 (ON SC), 8 O.R. (2d) 749 at 764, 59 D.L.R. (3d) 197, I said:
Whatever may be the case in respect of disputes over tenure or terms of employment between members of the teaching staff and the university, which can probably only be resolved in an action for breach of contract, it is my opinion that the prerogative writs of certiorari and mandamus are available to a student who has been denied natural justice in respect of his examinations. The university has been entrusted with the higher education of a large number of the citizens of this Province. This is a public responsibility that should be subject to some measure of judicial control.It is trite law that the prerogative remedies were never used as a substitute for the ordinary remedies for breach of contract. See: University Council of Vidyodaya University of Ceylon v. Silva,  1 W.L.R. 77 (P.C.), and R. v. Royal Institution for Advancement of Learning; Ex p. Fekete (1968), 1968 CanLII 767 (QC CA), 2 D.L.R. (3d) 129. In both cases it was held that the relationship between a university and a member of the teaching staff was that of master and servant, and that the only remedy for dismissal was an action for damages for breach of contract. In the first case, Lord Morris of Borth-y-Gest, who delivered the judgment of the Board, considered whether the aggrieved member of the teaching staff had any other position or status than that of an employee or servant of the university, and found none. But in Malloch v. Aberdeen Corp.,  1 W.L.R. 1578,  2 All E.R. 1278 (H.L.), the majority of the House held that the relevant statute gave a school teacher sufficient status to entitle him to the right to be heard before he was dismissed. And Lord Wilberforce, referring to the University of Ceylon case, said at p. 1596 W.L.R.:
Statutory provisions similar to those on which the employment rested would tend to show, to my mind, in England or in Scotland, that it was one of a sufficiently public character, or one partaking sufficiently of the nature of an office, to attract appropriate remedies of administrative law.The right to be considered for tenure is one of the terms of employment of members of the teaching staff of the University. It is a contractual right; but the consequence of a denial of tenure is the termination of the employment of the disappointed candidate. An action for damages for breach of the employment contract is probably not an adequate remedy. The Divisional Court found in the present case that there was [at p. 88 O.R. ] "that element of public employment and support by statute that requires us to consider whether or not essential procedural requirements were observed by the university, its president and Governing Council in carrying out their respective functions with respect to the application of Mr. Paine for tenure". I agree with that conclusion, but note the admonition of Beetz J. in Harelkin v. University of Regina, 1979 CanLII 18 (SCC),  2 S.C.R. 561 at 594-95, 96 D.L.R. (3d) 14,  3 W.W.R. 676, where he said that the incorporation of a university by statute does not alter the traditional nature of such an institution as a community of scholars and students enjoying substantial internal autonomy. Its immediate and direct responsibility extends primarily to its present members and, in practice, its governing bodies function as domestic tribunals when they act in a quasi-judicial capacity. The courts should use restraint and be slow to intervene in university affairs by means of discretionary writs whenever it is still possible for the University to correct its errors with its own institutional means. In the present case, Mr. Paine did exhaust all procedures available to him within the University. I cite the Harelkin case only for the proposition that the courts should be reluctant to intervene in university affairs.
In Paine v. University of Toronto et al. (Ont CA, 1981) the Court of Appeal granted an appeal from a judicial review application which quashed a university professor's denial of tenure and termination, which were held initially to be 'statutory powers of decision'. The Court of Appeal felt that the university's actions, in order to be a 'statutory power of decision', must be specific to the statute:
Counsel for Mr. Paine relied on the reference to tenure in the University of Toronto Act, 1947 (Ont.), c. 112, as amended by 1959, c. 103, s. 6 under which statute the Governors of the University of Toronto were empowered to:
(a) appoint ... the professors, and define their duties ... and their tenure of office or employment, which, unless otherwise provided, shall be during the pleasure of the Board;The words "tenure of office or employment" in s. 14(a) of the 1947 Act mean no more than the length of time for which an appointment is to be made; they cannot be equated with the term "tenure" which has a special meaning under the Haist Rules and the University Policy and Procedures on Academic Appointments.
I doubt whether the general power granted to the Governing Council by s. 2(14)(b) of the 1971 Act to appoint members of the teaching staffs is a "statutory power of decision" within the meaning of the Judicial Review Procedure Act, 1971 (Ont.), Vol. 1, c. 46. As Van Camp J. said, giving the judgment of the Divisional Court in Re Midnorthern Appliances Industries Corp. and Ontario Housing Corp. et al. (1977), 1977 CanLII 1081 (ON SC), 17 O.R. (2d) 290, it is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in the exercise of a "statutory power of decision"; and I think that must be a specific power or right to make the very decision in issue. ...