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JR - Public v Private (9). 2417563 Ontario Inc. v. The Corporation of the City of Brampton
In 2417563 Ontario Inc. v. The Corporation of the City of Brampton (Div Ct, 2026) the Divisional Court dismissed a JR, this seeking "to quash the by-law and set aside the sale to 258" - these both relating to the sale of a narrow strip of land by the municipality.
Here the court considered the public-private distinction as it bears on viable JR grounds:The nature of the transaction and the property
[31] The City urges us to conclude that the sale of the strip to 258 was in essence a private transaction that is beyond the scope of judicial review. In making this submission, the City relies on the case of Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, where Rowe J. wrote as follows for the court (at paras. 14 and 20):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, 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.
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.... In my view, a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power. Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term. Again, judicial review is about the legality of state decision making. [32] The City argues that just because it is a public body that derives its power to act from statute does not mean that all its actions raise issues about the rule of law or the legality of state decision making. It equates the sale of land in this case with “renting premises and hiring staff” – an action of insufficiently “public character” to warrant the attention of the court on judicial review.
[33] Several considerations weigh against the City’s argument. These include the role of the City in the structure or network of government, the statutory foundation for the City’s authority, the fact that the City’s constituting statute requires it to pass by-laws to authorize the sale of land, and the public nature of the process of selling land owned by the City: Air Canada, at paras. 50 – 60.
[34] On the other hand, the sale of land in this case was not a matter of broad public interest. The City’s public notice of the sale of the strip appears to have generated no response at all. That may be because the transaction in this case involved the sale of a disused strip of land that was of no use to the City (apart from its sale value) and was of use to an extremely small universe of potential buyers all of whom knew that the strip would be coming available. It was sold to one of those buyers – 258 – an innocent arm’s length third party that diligently pursued its interest in the strip, negotiated in good faith with the City, and purchased the property for value. Contrary to the submission of the applicants, there is no evidence that 258 was engaged in any improper conduct in this case. It cannot be criticized.
[35] By contrast, the applicants were not diligent. They were advised to check back in two weeks and did not check in for 16 months. Although they deny it, there is evidence that they were advised to watch the City’s website for information. Even if they were not so advised, being on the lookout for public notices respecting the sale of the strip (including on the City’s website) was the prudent course for an interested and diligent buyer. If the applicants had taken that course, they would have seen the relevant notice, which identified the strip precisely by using its unique PIN (Property Identification Number), assigned by the Land Registry. I add that there is no dispute that the applicants were told on May 25, 2023, by the Commissioner that the termination of the CN agreement was “very close.” They also knew that such termination would eliminate any impediment to the sale of the strip. Considering these facts, it is very difficult to understand why the applicants would take no step whatsoever to pursue their interest in the strip for 16 months.
[36] In any case, the applicants now attempt to vindicate their perceived private law rights using the public law tool of judicial review. This was never the central purpose of judicial review: Strickland, at para. 48. While I do not suggest that any sale of land by a municipality will be beyond the reach of judicial review, I am satisfied that the transaction in this case was of limited public character and does not justify the court exercising its discretion on judicial review in the circumstances of this case. As the respondents argue, this sale was a routine matter of contract that raised no issues respecting the rule of law or the limits of municipal power or the execution of the City’s central governmental mandate: Air Canada, at para. 52.
[37] Some sales of properties by municipalities, of course, have attracted the attention of the courts on judicial review. The cases of North End Community Health Association v. Halifax Regional Municipality, 2012 NSSC 330 and Know Your City Inc. v. The Corporation of the City of Brantford, 2021 ONSC 154, provide good examples.
[38] At issue in the former was the sale of a decommissioned school where a variety of proposals for the use of the subject property were made by several public interest groups and by a property developer, each of which would have been of interest to many of the residents of Halifax. Even there (at para. 45), the court recognized the essentially private nature of sales of land by municipalities but engaged in judicial review given that municipal policy respecting such sales required that non-profit community groups be given priority in the making of submissions respecting the use to be made of the school (see paras. 2 and 48).
[39] In Know Your City, the land at issue was a portion of a municipal golf course. The municipality had determined to sell the property so that it could use the proceeds of the sale to finance public housing, which was in short supply. Various residents opposed the sale and one of the issues on the application was whether the municipality had failed to give adequate notice of the proposed sale to the local First Nation.
[40] Both cases involved significant pieces of public property and raised matters of significant public concern. The public nature of the transactions and of the process of considering and negotiating their sale was undeniable. By contrast, in the present case, there was almost no interest in a small rump of land that was of no use to anyone except the applicants and 258. The applicants failed to act diligently, while 258 was alert and pursued its own interests assiduously. . Amaro v. The Chiefs of Ontario
In Amaro v. The Chiefs of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought by the applicant against the refusal of the Chiefs of Ontario ('COO'), "a private voluntary association of First Nations Chiefs in Ontario", which declined "to support his cause and intervene with political advocacy to address the injustice illustrated by his personal experience".
The court considers the public-private distinction in JRs, here in light of the available prerogative remedies [JRPA s.2(1)1]:[4] These reasons will explain why the application for judicial review is dismissed. In summary, this motion is not about the merits of Mr. Amaro’s concerns about the COO’s decision or his goals to achieve policy reform on behalf of all off-reserve First Nations people like him. The barrier to his application is that the COO’s decision as a private voluntary association is not subject to judicial review. The court therefore has no jurisdiction to review the decision. Moreover, the issues raised, and relief sought, by the applicant are not justiciable. The relief sought on this application is demonstrably unsuitable for adjudication and must be dismissed.
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1. The decision is not public in nature.
[52] The Divisional Court’s jurisdiction is determined by statute. It has no inherent jurisdiction: Adams, at para. 22. The relief sought in this application for judicial review must fall within s. 2(1) of the JRPA, or it is beyond the jurisdiction of this court: Beaucage, at para. 21.
[53] Section 2(1) of the JRPA provides that on an application for judicial review, the court may grant orders in the nature of mandamus, prohibition, certiorari or for relief by way of declaration. These remedies are available only against exercises of power that are public in character. While the notion of public law defies full and precise definition, the courts use these prerogative remedies to supervise persons and bodies that derive their powers from statute in their performance of functions of a public or governmental nature: Setia v. Appleby College, 2013 ONCA 753, at para. 20; Air Canada v. v. Toronto Port Authority, 2011 FCA 347, at para. 55; Highwood Congregation v. Wall, 2018 SCC 26, at para. 15
[54] The assessment of whether a particular decision is subject to public law and its remedies requires careful consideration and weighing of the relevant circumstances of the particular case informed by the experience of case law. That experience has identified a number of factors relevant to the determination of whether a matter is of sufficient public character to bring it within the jurisdiction of public law: Setia, at para. 33; Beaucage, at paras. 25-26; Trost v. Conservative Party of Canada, 2018 ONSC 2733 (Div. Ct.), at para. 13; Air Canada, at para. 60.
[55] I have considered these factors in all the circumstances of the case and find that the following are material and dispositive to the question. They lead to the conclusion that the COO’s decision does not have sufficient public dimension to which public law remedies can be applied.
[56] The character of this matter for which review is sought is private. At its core, the application challenges the decision of a private association not to pursue the political advocacy agenda requested by the applicant. I acknowledge the applicant’s emphasis that his personal experience only serves as an example of the problem of systemic discrimination experienced by many non-reserve members. Nevertheless, broad public impact is insufficient to bring a decision within the public law sphere for judicial review. Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term. Previous cases that reviewed voluntary association decisions relied on the broad public impact of the decision rather than the narrower question of whether the decision was within the public law sphere. That approach is no longer accepted law: Beaucage, at para. 25. The relevant inquiry is whether the legality of state decision making is at issue: Highwood, at para. 21.
[57] The decision-maker is a private, voluntary, membership-based association that operates pursuant to a charter and with the administrative support of a separate corporate secretariat. It is not a creature of statute. The COO’s mission is to support all First Nations in Ontario as they assert their sovereignty, jurisdiction and their chosen expression of nationhood. It is true that the COO works and engages in advocacy with the provincial and federal governments and the Assembly of First Nations on identified priorities. However, it is not woven into the government network and does not exercise a power as part of that network. A significant role in policy consultations does mean that the COO is a public body or that its decisions are public law decisions: Beaucage, at paras. 38, 46. While the COO plays an important role in public policy, it is not a governmental actor. The COO does not draw its powers from government and does not exercise public responsibilities: Trost, at para. 16.
[58] I accept the respondent’s submission that the COO’s organization is materially like that of the Métis Nation of Ontario, which was closely considered by the Divisional Court in Beaucage on the same question. In finding the Métis Nation of Ontario’s membership decision was not subject to judicial review, the court held that the nature of the organization, its responsibilities and its relationship with government do not transform its decisions into public law decisions subject to judicial review: Beaucage, at para. 44. That rationale applies here with equal force.
[59] The decision itself is the exercise of private discretion. It did not emanate directly from a public source of law such as statute, regulation or order. While the COO plays an important role in public policy, it remains a private actor.
[60] The Divisional Court does not have jurisdiction to review the COO’s decision, and the application is dismissed for the foregoing reasons.
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