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Judicial Review - Public v Private - Exceptions. Georgiou v. Ministry of Health et al. ['operational' exception]
In Georgiou v. Ministry of Health et al. (Ont Div Ct, 2026) the Ontario Divisional Court granted a motion to quash a JR, this where the underlying JR advanced a number of remedies respecting medical referral.
The court considered the public-private justiciability distinction, particularly the 'operational' (ie. logistical) exception for public entities - here medical facilities:Lack of Jurisdiction:
[17] I find the Court lacks jurisdiction to hear this application for judicial review.
[18] The Divisional Court’s jurisdiction to hear an application for judicial review arises from s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, in that the decision under review must be an exercise of statutory power. Under s.1(b) of the JRPA, “statutory power” means a power or right conferred by or under a statute to exercise a statutory power of decision and “statutory power of decision” means 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,
and includes the powers of an inferior court. [19] Were the decisions of the Respondents an exercise of statutory power and subject to judicial review?
[20] While the health care field is highly regulated, this does not mean that the Respondents are state actors. Although doctors are funded by OHIP, this does not make the Respondents’ decisions an exercise of statutory power.
[21] The Applicant has not identified a statutory power that is being relied on in the exercise of its policy making. There is no evidence to conclude that the policies of the Respondents or the decisions subject to this application fall within the definition of statutory power under the JRPA.
[22] The jurisdiction of this Court to judicially review decisions made by hospitals, was recently discussed in West Grey (Mun.) v. South Bruce Grey Health Centre, 2025 ONSC 3193, 177 O.R. (3d) 444, where the applicant was seeking an order quashing a decision by the respondent hospital to relocate 10 patients to a different site, and an order in the nature of mandamus compelling the respondent to relocate the patients back to their original site.
[23] The Court found that the decision to transfer beds from one site to another was an operational decision and not made under a statute: see paras. 35-36. In dismissing the application for judicial review, the Court found that the decision was made by a not-for-profit corporation that controls its internal management and allocation of resources to meet the standards expected of a public hospital. The decision was not sufficiently of a public nature to make it subject to judicial review: at para. 51; see also O.N.A. v. Rouge River Valley System, 2018 ONSC 6315 (CanLII), 302 D.L.R. (4th) 751 (Div. Ct.).
[24] In Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC), [1990] 3 S.C.R. 483, the Court held that despite providing a public service, operational decisions of a hospital did not qualify as a government function for the purposes of the Charter. Matters that are routine or regular in nature such as policy decisions are not subject to judicial review: also see West Grey, at para. 37.
[25] In this case, the Respondents are even further removed from exercising statutory power than hospitals because they are private entities and not hospitals. They are not exercising any delegated decision-making authority. The Respondents offer infrastructure support. Their purpose is to facilitate doctors in providing healthcare services.
[26] Although some private entities sometimes make decisions that have a broad impact, the appearance of a public character does not transform the decision into an exercise of state power: West Grey, at para. 40. For example, in Sprague, this Court found that a hospital’s visitor policy was not of a sufficiently public character as to engage the application of public law. . Metropolitan Preparatory Academy Inc v. Ontario
In Metropolitan Preparatory Academy Inc v. Ontario (Div Court, 2022) the Divisional Court held that government financial/policy allocation decisions were non-justiciable, here in an Ontario judicial review context:[18] “[R]esponsibility for the management of public funds rests with the government and not the court…” (Bowman v. Her Majesty the Queen, 2019 ONSC 1064, para. 40). Expenditures of public funds are discretionary public policy decisions made by government pursuant to the Crown’s common law spending powers: Pharmaceutical Manufacturers Association of Canada v. British Columbia (Attorney General) (1997), 1997 CanLII 4597 (BC CA), 149 DLR (4th) 613, paras. 27-29 (BC CA).
....
[28] Finally, we note that the applicants and their employees were eligible to seek funding under several programs targeted at businesses and as support for working people to relieve some financial consequences of public health measures taken in response to COVID-19. There is no unfairness in Ontario taking different approaches to addressing issues arising in the private sector and issues arising in publicly funded institutions. . Metropolitan Preparatory Academy Inc v. Ontario
In Metropolitan Preparatory Academy Inc v. Ontario (Div Court, 2022) the Divisional Court held that cabinet financial allocation decisions were non-justiciable, here in a judicial review context:[19] Policy considerations at Cabinet are not reviewable in this court absent jurisdictional error, a constitutional challenge, bad faith or irrationality: Dixon v. Canada (Governor in Council), 1997 CanLII 6145 (CAF), [1997] 3 FC 169, para. 17 (CA); Thorne’s Hardware Ltd. v. R., 1983 CanLII 20 (SCC), [1983] 1 SCR 106, para. 9; Ontario Federation of Anglers and Hunters v. Ontario (2002) 2002 CanLII 41606 (ON CA), 211 DLR (4th) 741 (Ont. CA); Brazeau v. Canada (Attorney General), 2020 ONCA 184, para. 61; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 61, paras. 25-26.
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