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Judicial Review - Public v Private (5)

. Sivanadian v. Kanagaratnam [highwood]

In Sivanadian v. Kanagaratnam (Div Ct, 2020) the Divisional Court considered a judicial review availability case dealing with a private organization. It ruled against the availability and, harshly, applied the R2.1 frivolous and vexatious rule [para 1-4,20]:
[13] In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, at para. 13, the Supreme Court of Canada held that the “purpose of judicial review is to ensure the legality of state decision making ... Judicial review is a public law concept that allows s. 96 courts to “engage in surveillance of lower tribunals” in order to ensure that these tribunals respect the rule of law…” In Wall, at para. 14, the Court went on to say that judicial review “is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.” [emphasis added]

....

[18] This does not mean that the applicant has no routes of redress against the respondents. His allegations may give rise to a private law claim. In Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 (leave to appeal to the SCC granted on June 18, 2020), the Court of Appeal for Ontario addressed the circumstances in which members may have a contractual claim against a non-profit organization in the context of an expulsion. However, it is clear on the face of the notice of application for judicial review, that the decision of the JHCAC and its members is not subject to judicial review and the Divisional Court therefore does not have jurisdiction over this matter.
. Air Passenger Rights v. Canada (Transportation Agency) [air canada, highwood]

In Air Passenger Rights v. Canada (Transportation Agency) (Fed CA, 2020) the Federal Court of Appeal confirmed that judicial review (at the federal level) is only available where the issue is one that "affect(s) legal rights, impose legal obligations or cause prejudicial effects":
[13] APR’s main argument in its memorandum filed in relation to this motion is that the test for the availability of judicial review has changed. APR submits that the test based on whether the conduct of the administrative body affects legal rights, imposes legal obligations, or causes prejudicial effects is no longer applicable. Therefore, APR submits that Justice Mactavish erred in basing her decision on her finding that the impugned statements did not affect legal rights, impose legal obligations, or cause prejudicial effects.

[14] APR notes that this Court in Air Canada v. Toronto Port Authority, 2011 FCA 347, (AC v. TPA) stated:
28 The jurisprudence recognizes many situations where, by its nature or substance, an administrative body's conduct does not trigger rights to bring a judicial review.

29 One such situation is where the conduct attacked in an application for judicial review fails to affect legal rights, impose legal obligations, or cause prejudicial effects: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488; Democracy Watch v. Canada (Conflict of Interest and Ethics Commissioner), 2009 FCA 15, 86 Admin. L.R. (4th) 149.
[15] However, APR, in paragraph 49 of its memorandum, submits that the Supreme Court of Canada changed the test that is to be applied to determine if judicial review is available:
[i]n 2018, in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, [2018 SCC 26] the Supreme Court recast the test for availability of judicial review as simply whether the administrative bodies’ action is an exercise of state authority that is of a sufficiently public character [Wall-test].

(emphasis in original)
[16] Although APR does not explicitly state that, in its view, the Supreme Court indirectly overturned the decision of this Court in AC v. TPA, it appears that this is implicit in its argument which culminates in the following statement in paragraph 63 of its memorandum:
Therefore, the panels of this Honourable Court in Oceanex [Oceanex Inc. v. Canada (Transport), 2019 FCA 250] and Guérin [Guérin c. Canada (Procureur général), 2019 CAF 272] correctly concluded that availability of judicial review of acts of federal administrative bodies is to be determined based on the Wall-test.
[17] The position of the CTA is that the principle, as set out in AC v. TPA, that there is no right to judicial review "“where the conduct attacked in an application for judicial review fails to affect legal rights, impose legal obligations, or cause prejudicial effects”" is still good law and it has not been overturned by the Supreme Court. Therefore, since the statements at issue in this judicial review application do not affect legal rights, impose legal obligations or cause prejudicial effects, the application for judicial review should be struck.

[18] It is important to examine exactly what each court said. The relevant paragraph in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (Wall), is paragraph 14:
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 (ibid.). Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.
[19] There is nothing in this paragraph that indicates that the Supreme Court is overturning the decision of this Court in AC v. TPA. Rather, the Supreme Court specifically refers to this decision in the above quoted paragraph, albeit for a different principle referenced in that case. If the Supreme Court had intended that AC v. TPA should no longer be followed for the principle that judicial review will not be available if the conduct does not affect legal rights, impose legal obligations or cause prejudicial effects, it presumably would have explicitly stated it was overturning this decision.

[20] Furthermore, it is important to review the context in which this statement was made by the Supreme Court. The issue in Wall, was described by the Supreme Court in the first paragraph of that decision:
1. The central question in this appeal is when, if ever, courts have jurisdiction to review the decisions of religious organizations where there are concerns about procedural fairness. In 2014, the appellant, the Judicial Committee of the Highwood Congregation of Jehovah's Witnesses, disfellowshipped the respondent, Randy Wall, after he admitted that he had engaged in sinful behaviour and was considered to be insufficiently repentant. The Judicial Committee's decision was confirmed by an Appeal Committee. Mr. Wall brought an originating application for judicial review of the decision to disfellowship him before the Alberta Court of Queen's Bench. The court first dealt with the issue of whether it had jurisdiction to decide the matter. Both the chambers judge and a majority of the Court of Appeal concluded that the courts had jurisdiction and could proceed to consider the merits of Mr. Wall's application.
[21] The issue was, therefore, whether the decision that had been reached by the Judicial Committee could be the subject of a judicial review. The conclusion of the Supreme Court was that this decision was not justiciable. The Supreme Court did not decide that a particular conduct which did not affect legal rights, impose legal obligations or cause prejudicial effects, could nevertheless be subject to judicial review. In Wall, Mr. Wall had been disfellowshipped by the Judicial Committee and therefore his rights were affected.

[22] APR submitted that two decisions of this Court applied the test as set out in Wall. In Oceanex Inc. v. Canada (Transport), 2019 FCA 250, this Court simply noted that the Supreme Court had recently revisited the law governing the availability of judicial review and that it had emphasized:
[…] that judicial review is available only where two conditions are met – "where there is an exercise of state authority and where that exercise is of a sufficiently public character" […]

(emphasis in original)
[23] This Court did not decide that judicial review would be available where these two conditions are met regardless of whether the particular decision or conduct affects legal rights, imposes legal obligations or causes prejudicial effects.

[24] In Guérin c. Canada (Procureur général), 2019 CAF 272, the reference to the Supreme Court’s decision in Wall, is in paragraph 65: "« Ce principe a récemment été réitéré par la Cour suprême dans Highwood Congregation of Jehovah's Witnesses (Judicial Committee) c. Wall […] »". The principle to which this Court was referring was stated in the immediately preceding paragraph: "« Dans l'arrêt Dunsmuir, la Cour suprême a clairement réaffirmé le principe selon lequel la relation de la Couronne avec ses employés est régie par le droit des contrats. »" The principle to which this Court was referring was not the principle that related to the availability of judicial review but rather that the relationship between the Crown and its employees is governed by the law of contract.

[25] As a result, none of these cases support the proposition advanced by APR. APR also refers to the decision of this Court in Wenham v. Canada (Attorney General), 2018 FCA 199. In that case, this Court noted:
36 An application can be doomed to fail at any of the three stages:
I. Preliminary objections. An application not authorized under the Federal Courts Act, R.S.C., 1985, c. F-7 or not aimed at public law matters may be quashed at the outset: JP Morgan at para. 68; Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26; Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605.
[26] This Court referred to both the Supreme Court’s decision in Wall and the decision of this Court in AC v. TPA as providing a basis on which a judicial review application could fail. Therefore, an application for judicial review could fail if the test as set out in Wall is not satisfied, or if the particular decision or conduct did not affect legal rights, impose legal obligations or cause prejudicial effects.

[27] As a result, there is no support for the proposition as advocated by APR that "“where there is an exercise of state authority and where that exercise is of a sufficiently public character”" that exercise of public authority can be subject to judicial review even though no legal rights are affected, no legal obligations are imposed and there are no prejudicial effects.
. Chartrand v. Healthcare of Ontario Pension Plan [highwood, setia]

In Chartrand v. Healthcare of Ontario Pension Plan (Div Court, 2022) a Divisional Court panel, hearing a CJA 21(5) motion to set aside a single-judge order, considered whether the court has judicial review jurisdiction on public-private grounds - here with respect to a public pension plan:
[15] Justice Swinton made no error in finding that the Divisional Court does not have jurisdiction to grant judicial review against HOOPP. The question of whether the Divisional Court has jurisdiction to hear an application for judicial review is a question of law.

[16] Justice Swinton recognized that on an application for judicial review, the Divisional Court can grant prerogative relief or it can grant declaratory relief in relation to the exercise of a “statutory power”: Judicial Review Procedure Act, R.S.O. 1990, c. J.2, s. 2 (“JRPA”). Justice Swinton found that neither form of relief is available in this case and it is, therefore, plain and obvious that the Divisional Court has no jurisdiction to grant judicial review against HOOPP.

[17] Justice Swinton was correct to find that HOOPP was not exercising a statutory power as defined in s. 1 of the JRPA so declaratory relief is not available.

[18] Justice Swinton was also correct to find that prerogative relief (such as an order quashing the decision and remitting it back to HOOPP for reconsideration) is not available in this case. Prerogative relief is a public law remedy that is only available in relation to public decision-makers that exercise state authority that is of a sufficiently public character: Highwood Congregation of Jehovah’s Witnesses (Judicial Council) v. Wall, 2018 SCC 26 at para. 14.

[19] Ms. Chartrand filed a study done for the 1980 Royal Commission on the Status of Pensions as part of her materials on this motion. That study was not before Justice Swinton on HOOPP’s motion to quash. Ms. Chartrand did not bring a motion to adduce fresh evidence, nor has she explained why the study was not part of the record before Justice Swinton. As a result, we have not considered that study on this motion.

[20] To decide whether a decision-maker or a decision is subject to public law remedies, the Court must consider the nature of the decision-maker, the relationship between decision-maker and other parts of government or other statutory schemes, the extent to which the decision-maker is controlled by government, the nature of the decision and the suitability of public law remedies: Setia v. Appleby College, 2013 ONCA 753 at para. 34. Justice Swinton properly considered these factors.

[21] Justice Swinton recognized that HOOPP, like many public and private sector pension plans, is governed by the Pension Benefits Act, R.S.O. 1990, c. P.8 with respect to issues of funding, solvency and member entitlement. However, Justice Swinton found that the fact HOOPP (or any other pension plan) is governed by the Pension Benefits Act for some purposes does not make HOOPP a governmental or public institution for the purpose of judicial review.

[22] Ms. Chartrand relied on cases involving judicial review applications against other public sector pension plans: Clifford v. Ontario (Attorney General), 2009 ONCA 670 and Ontario (Minister of Education) v. Ontario Teachers’ Pension Plan Board, 1998 CanLII 1539 (Ont. C.A.). Justice Swinton noted that the pension plans in those cases were both created by statute. HOOPP was not created by statute. HOOPP was created by agreement between the Ontario Hospital Association, four unions and the original trustees of the plan.

[23] Justice Swinton also considered that some of HOOPP’s members are public sector employees and work in public hospitals. She found that this is not sufficient to make HOOPP a public decision-maker.

[24] Justice Swinton made no error in finding that HOOPP is a private pension plan even though it includes employees in the public health care sector and is, in some respects, governed by the Pension Benefits Act. Justice Swinton was correct that HOOPP’s decision about entitlement to survivor benefits is not subject to judicial review.
. Thales DIS Canada Inc. v. Ontario [air canada]

In Thales DIS Canada Inc. v. Ontario (Div Court, 2022) the Divisional Court considers whether and how a 'request for bids' (RFB) is judicially reviewable on public-private grounds:
[141] Courts have traditionally considered the process of awarding government contracts for goods and services to be a commercial matter governed by private law: 2169205 Ontario Inc. o/a Lefroy Freshmart v. Liquor Control Board of Ontario, 2011 ONSC 1878, 278 O.A.C. 207 (Div. Ct.), at para. 24. Where there are no statutory provisions or regulations which prescribe how the government agency is to go about entering the contract in question, the decision to award a contract is not properly a subject for judicial review: St. Lawrence Cement Inc. v. Ontario (Minister of Transportation) (1991), 1991 CanLII 7108 (ON SC), 3 O.R. (3d) 30 (Div. Ct.).

[142] In Bot Construction v. Ontario (Minister of Transportation) (2009), 2009 CanLII 92110 (ON SCDC), 99 O.R. (3d) 104 (Div. Ct.) at para. 21, however, this Court found that “where government procurement decisions are authorized or constrained by statues, rules or regulations” a contract may sufficiently engage the public interest such that judicial review is appropriate. In that case, judicial review was found to be warranted because of the following factors: the contract award had public interest implications beyond the interests of the contracting parties, such as the construction of public roads and the fairness and integrity of the process; the implications on the Canadian steel industry and the road construction industry in Ontario; the expenditure of substantial public funds; and the limitation of the bidder’s private law remedies.[2]

[143] In Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 60, Stratas J.A. identified a number of factors as relevant to determining “whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law” for the purposes of judicial review. Those factors include: the character of the matter for which review is sought; the nature of the decision-maker and its responsibilities; the extent to which the decision is founded in and shaped by law as opposed to private discretion; the body’s relationship to other statutory schemes or parts of government; the extent to which a decision-maker is an agent of government or directed/controlled by a public entity; the suitability of public law remedies; and the existence of compulsory power over the public at large or over a defined group.
. West Whitby Landowners Group Inc. v. Elixicon Energy [air canada]

In West Whitby Landowners Group Inc. v. Elixicon Energy (Div Ct, 2022) the Divisional Court considered whether a statutory power of decision has occured, in this case focussing on the public nature of the acts:
[25] The respondents argue that the Divisional Court does not have jurisdiction over the application because the Board did not exercise a statutory power of decision. They approach this issue from two different perspectives. First, they argue that the Board did not make a decision because it only provided an opinion for the purpose of helping the parties resolve their differences. Second, they argue that, even if the Board made a decision, the only decision it made was not to refer the matter for a hearing. WWLG does not have standing to challenge such a decision.

[26] I agree with the respondents.

....

[34] Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, provides that on an application for judicial review, the Divisional Court can grant an “order in the nature of mandamus, prohibition or certiorari” or a declaration “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”.

[35] In this case, WWLG seeks an order in the nature of certiorari. As held in Martineau v. Matsqui Institution, 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602, at p. 628:
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.
[36] As held by this Court in Trost v. Conservative Party of Canada, 2018 ONSC 2733, at para. 11, the Judicial Review Procedure Act does not specify when certiorari may be available, so it is necessary to turn to common law principles to decide that issue. In such cases, the courts look at the list of factors set out by the Federal Court of Appeal in Air Canada v. Toronto Port Authority, 2011 FCA 347, at para. 34, to determine whether a decision is of sufficient public character to engage public law remedies such as certiorari. As described in Trost, at para. 13, these factors are as follows:
-- the character of the matter for which review is sought;

-- 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
[37] In my view, the OEB’s opinion regarding whether the MS16 is an expansion or an enhancement is not a decision giving rise to the public law remedy of certiarori. While the OEB is a public body that makes many decisions of a public character, in this case, the first factor, namely the character of the matter, weighs heavily against the availability of public law remedies. The parties sought the opinion for the purpose of resolving their private dispute. The fact that they agreed to be bound by the OEB’s opinion does not turn the opinion into a decision of a public character. Ultimately, the only decision made by the OEB was not to refer the matter for further investigation or not to make an order against Elexicon which, as reviewed above, is a decision that WWLG does not have standing to challenge.
. Astro Zodiac Enterprises Ltd. v. Board of Governors of Exhibition Place [paine, highwood, air canada]

In Astro Zodiac Enterprises Ltd. v. Board of Governors of Exhibition Place (Div Ct, 2022) the Divisional Court considers whether a decision to refuse a rental in Exhibition Place is subject to judicial review as a public act or not:
Analysis

[22] I find that the decision does not fall under the scope of public law and is not subject to judicial review. The decision whether to rent space at Exhibition Place to a private company for a profit-making activity is not an exercise of state authority of sufficiently public character that public law remedies are available.

[23] Subsection 2(1) of the JRPA sets out this court’s jurisdiction to hear an application for judicial review:
2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may... grant any relief that the applicant would be entitled to in any one or more of the following:

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.
[24] Section 1 of the JRPA defines “statutory power” to include a power or right conferred by or under a statute “to exercise a statutory power of decision.” “Statutory power of decision” is defined in s. 1 to mean a power or 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, or

(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….
[25] Section 1 of the JRPA defines licence to include: “any permit, certificate, approval, registration, or similar permission required by law.”

[26] The Board did not exercise a statutory power of decision in relation to the decision not to enter a contract with the applicants. As the Court of Appeal held in Paine v. University of Toronto et al. (1981), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 722, “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 a specific power or right to make the very decision in issue.” In this case, while the Board’s authority to enter contracts is based on authority delegated under COTA and the Toronto Municipal Code, the manner of the exercise of the power to contract—including the decision to enter into any particular contract—is not subject to any constraining statutory requirements except as to duration and type. The power to contract is permissive. COTA, the Toronto Municipal Code, and the Relationship Framework, do not dictate how the Board’s discretion to enter, negotiate, or terminate the type of contract in issue here is to be exercised.

[27] In any event, jurisdiction to issue an order in the nature of certiorari under s. 2(1)1 of the JRPA is not limited to statutory powers of decision, and not all statutory powers of decision are subject to judicial review.

[28] The issue is whether the decision to not enter a contract is (a) an exercise of state authority, and (b) of sufficiently public character that public law remedies are available. In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 14, the Supreme Court 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 (ibid.). Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.
The Air Canada Factors

[29] The factors that determine whether a decision by a state actor is a public law decision of sufficient public character to be subject to judicial review are set out in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 60: see also Highwood Congregation, at para. 21; Weld v. Ottawa Public Library, 2019 ONSC 5358 (Div. Ct.), at para. 14 and Wise Elephant Family Health Team v. Ontario (Minister of Health), 2021 ONSC 3350 at paras. 71-80. The court in Air Canada, at para. 60, 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.” Applying the relevant Air Canada factors, and weighing the overall impression of the case as discussed below, I conclude that the matter is a private contract dispute and that public law remedies are not suitable.

[30] The character of the matter for which review is sought. The matter is a private contract for the rental of space to operate a Hallowe’en event by a for-profit operator.

[31] The nature of the decision-maker and its responsibilities. The Board exercises delegated public authority to rent or lease City lands and to manage Exhibition Place under the Toronto Municipal Code, COTA, and the Relationship Framework. It is not a statutory administrative body like a court or adjudicative tribunal. The matter under review is the exercise of a permissive power to contract with a private party, consistent with the elements of the Relationship Framework that direct the Board to operate as a business.

[32] How much a decision is founded in and shaped by law rather than private discretion. The Board has general authority to enter into contracts and agreements in its own name: Toronto Municipal Code, Chapter 63. There are certain limits on the Board’s authority to execute licenses and leases in relation to facilities on Exhibition Place lands (Municipal Code, Chapter 63, s. 63-6.1), and some decisions which must be approved by City Council as discussed above. The one-year agreement for short-term use of space in issue here does not fit within those categories. It is squarely within the Board’s discretionary leasing authority. There are no statutory or regulatory criteria directing whether, to whom, or how the Board is to rent or lease Exhibition Place property. The decision not to enter a contract is an exercise of private law discretion.

[33] The Board’s relationship to other statutory schemes, or as an agent of government or directed or significantly influenced by a public entity. The Board is a City board but does not exercise the City’s by-law making or administrative functions. Under the Relationship Framework, it is intended to operate “as a self-sufficient business unit responsible for all inter-related assets and business supports.” While some Board members are City councillors, this is not dispositive. The Board can enter contracts and agreements in its own name without approval by or the consent of Council with few exceptions not applicable here. Its staff are not employees of the City, but of the Board. The decision to rent space is not part of a larger exercise of government power.

[34] The suitability of public law remedies. The applicants seek to quash the decision with a “direction that Exhibition Place extend fairness and good faith deliberation to the applicants’ request for licenses to operate.” The Board need not enter contracts with any particular applicant as a matter of public law. The delegated authority is permissive: it allows the Board to enter into agreements for the use of Exhibition Place facilities. The Board’s discretionary decisions on private contracting are not suitable for public law remedies. The applicants may pursue private law remedies against the Board.

[35] The existence of compulsory power. The Board has no compulsory power over any of the applicants, in the way that a Law Society has compulsory powers over its licensees, for example. The applicants may contract for space anywhere.

[36] An “exceptional” category of cases in which the conduct has attained a serious public dimension. Stratas J.A. in Air Canada described this consideration as follows:
Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable: Aga Khan, supra at pages 867 and 873; see also Paul Craig, “Public Law and Control Over Private Power” in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) 196. This may include cases where the existence of fraud, bribery, corruption or a human rights violation transforms the matter from one of private significance to one of great public moment: Irving Shipbuilding, supra at paragraphs 61-62.
[37] This case does not fall within the exceptional category. The issue is the decision to enter a contract for the use of Exhibition Place facilities by the applicant companies in their profit-making enterprises. Nothing in the allegations raises “very serious, exceptional effects on the rights or interests of a broad segment of the public.” The applicants can seek other contracts, at other locations, to provide their events. There is no additional public law dimension in accordance with the last Air Canada factor that would constitute this as an “exceptional case” in which public law remedies would be appropriate. Having considered all the factors and the overall impression of the case, I conclude that the matter is a contract dispute, and public law remedies are not suitable.



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