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JR - Public Procurement. Land Design Inc. v. Ontario Infrastructure and Lands Corp.
In Land Design Inc. v. Ontario Infrastructure and Lands Corp. (Div Ct, 2026) the Divisional Court dismissed a JR, this brought against a decision and a reconsideration decision of the Ontario Infrastructure and Lands Corp. [Infrastructure Ontario (IO)] "disqualifying LANDinc from a Request for Proposal (“RFP”) process", this "related to a contract for construction administration services for redevelopment and revitalization of Ontario Place, on the shores of Lake Ontario, in Toronto".
The court considers JR jurisdiction on a public-private basis, here regarding 'procurement' for public contracts:1. Jurisdiction
(18) LANDinc argues that this court has jurisdiction over this application pursuant to ss. 2(1)1 and 6(1) of the JRPA. LANDinc concedes (correctly in my view) that the impugned decisions do not involve an exercise of a “statutory power of decision” within the meaning of s. 2(1)2 of the JRPA: Grascan Construction Ltd. v. Metrolinx, 2017 ONSC 6424, paras. 77 and 83 (Div. Ct.); Midnorthern Appliances Industries Corp. v. The Ontario Housing Corp. (1977), 1977 CanLII 1081 (ON HCJ), 17 O.R. (2d) 290 (Div. Ct.).
(19) IO does not contest this court’s jurisdiction pursuant to JRPA, s. 2(1), without prejudice to arguing in future cases that public procurement decisions are not subject to judicial review.
(20) The AG Ontario submits that jurisdiction is a “threshold issue” and may not be presumed because it is uncontested by IO in this case.
(21) I agree with the AG Ontario on this point. The Divisional Court is a statutory court. It has no inherent jurisdiction, but rather, it has only the jurisdiction that has been created by statute. Jurisdiction is not conferred on this court by consent (or non-opposition) of the parties: Tele-Zone Inc. v. Attorney General (Canada), 2008 ONCA 892, paras. 3, 4 and 92; aff’d 2010 SCC 63; 1819472 Ont. Corp. v. John Barrett General Contractors Ltd., 2024 ONCA 333, para. 21; 376965 Ont. Ltd. v. Regional Municipality of Durham Police Board, 2025 ONSC 3084, para. 27 (Div. Ct.); Berentschot v. Ontario, 2025 ONSC 4857, para. 9 (Div. Ct.).
(22) Fundamentally, judicial review is “directed at public decision making.” This court’s jurisdiction to undertake judicial review pursuant to JRPA, s. 2(1) is engaged only where “there is an exercise of state authority” and “that exercise is of a sufficiently public character.” See Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, paras. 13, 14 and 16.
(23) To determine whether a decision is of a “sufficiently public character” to be subject to judicial review, the court considers the factors described in Air Canada v. Toronto Port Authority, 2011 FCA 437:- 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 decision-making body’s relationship to other statutory schemes and 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
- whether the decision belongs to an “exceptional” category of cases where the conduct has attained a serious public dimension (24) The Air Canada factors “do not operate as a strict test or checklist.” The factors apply contextually, in the circumstances of a particular case, to guide the court’s determination whether the impugned decision(s) are of a sufficiently public character as to be subject to judicial review: West Whitby, para. 40; Khorsand v. Toronto Police Services Board, 2024 ONCA 597, paras. 63-76.
(25) There are cases where the court has found that procurement decisions are not amenable to judicial review: 376965 Ontario Limited v. Regional Municipality of Durham Police Service Board, 2025 ONSC 3084 (Div Ct motions judge); Astro Zodiac Enterprises Ltd. v. Board of Governors of Exhibition Place, 2022 ONSC 1175 (Div. Ct.); A-1 Credit Recovery v. Ministry of Finance, 2023 ONSC 6667.
(26) In Bot Construction, this court found that it had jurisdiction over a decision not to disqualify a respondent (and to award that respondent the contract) and reversed the Ministry of Transportation’s decision. The Court of Appeal reversed the Divisional Court on the basis that the impugned Ministry decision was reasonable: Bot Construction Limited v. Ontario (Transportation), 2009 ONCA 879. In Thales, likewise, this court found that it had jurisdiction to judicially review a decision upholding tender conditions alleged to violate that Canada-Europe Free Trade Agreement and found (a) that the impugned conditions were unreasonable; and (b) that the dispute resolution process followed by Ontario violated the terms of the Free Trade Agreement. The Court of Appeal reversed both substantive conclusions of this court and did not decide the jurisdictional issue: Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866. These two cases provide authority from the Divisional Court that judicial review may be available in public procurement cases, in particular circumstances, and that the Court of Appeal has neither approved nor disapproved these findings.
(27) Divisional Court precedent (cited above) establishes that public procurement decisions are not reviewable in this court as a general class: jurisdiction turns on a case-by-case analysis guided by an application of the Air Canada factors to the particular circumstances of the case.
(28) In my view, there are several aspects of this case that lead to the conclusion that the impugned decision has a sufficiently “public” dimension as to render the impugned decision amenable to judicial review.(a) the Project itself is a large one in respect to which there is considerable public interest: the redevelopment of an important public landmark in a prominent location on Toronto’s waterfront;
(b) the RFP is in respect to a substantial services contract overseeing important aspects of substantial construction work on the Project;
(c) the impugned decision involves both factual and legal determinations, and then an exercise of discretion based on those findings.
(d) the legal determinations pertain to provisions in the RFP aimed at preventing a respondent from obtaining, or being seen to obtain, unfair advantage over other respondents through prohibited contact with the Premier of Ontario and a Minister of the Crown. In addition, these provisions seek to establish a process seen to be transparently independent of political lobbying and interference, to limit or eliminate an appearance of impropriety in the awarding of public contracts.
(e) the factual determinations include assessing the nature of contacts made with the Premier of Ontario, a Minister of the Crown, and members of the Premier’s office which could give rise to concerns about the propriety of the conduct of everyone involved in the impugned events.
(f) the issues raised on the application are justiciable through the application of administrative law principles, and public law remedies could be suitable, depending on this court’s findings respecting the merits of the application. (29) Taking these factors together, I am satisfied that there is a sufficiently public nature to the impugned decision to ground jurisdiction for judicial review. Some of these factors, on their own, would not be sufficient to ground jurisdiction: just because a project is of great public interest or the RFP is in respect to a proposed contract involving expenditure of a substantial amount of public money, may not, on their own, be sufficient to ground jurisdiction for judicial review. Many public tendering processes involve large projects and expensive contracts. Contrary to LANDinc’s submission on this issue, Ontario jurisprudence does not establish that the size of a project and the cost of the anticipated contract are sufficient, by themselves or together, to grant jurisdiction. In Bot Construction, for example, the scale of the project and value of the contract made the issue of “the fairness and integrity of the process followed in the expenditure of significant public funds” of sufficiently public importance to ground jurisdiction for judicial review (at para. 24).[1] The size of the Project and the value of the intended contract were important, in light of the underlying issue on the application (integrity of the procurement process) but only arose to the level of being “sufficiently public” in nature because issues related to the integrity of the process were also involved.
(30) The grounds for disqualification in this case, and the involvement of senior members of the Executive, including the Premier and a Minister of the Crown, provide the basis for concluding that the court’s assessment of whether the impugned decision is in accordance with the law and principles of procedural fairness has a “serious public dimension” grounding jurisdiction.
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