PART FOUR

REMEDIES
   

GENERAL INTRODUCTION
By this stage, the names and purposes of the remedies, both statutory
and common law, that are available in Canada for challenging
administrative action will have become familiar. Nevertheless, the
material on remedies has been fragmentary and for the most part
focused on the relationship between remedies and substantive review.
Because of the significance of remedial choices in adjudication, it is
important before leaving a course on administrative law to take an
overview of the remedial package to identify the points of distinction as
well as those of overlap among remedies, so as to be able to discern the
bases on which counsel may choose to pursue one avenue of relief
rather than another.
At the outset, it is important to consider the relationship between
review in the courts and other methods of challenging the decision of a
statutory body. These other methods may be internal to the statutory
process itself (see Cristie Ford, “What People Want, What They Get, and
the Administrative State” in Colleen M Flood & Paul Daly,
eds, Administrative Law in Context, 4th ed (Toronto: Emond, 2022) at
52-53) or external (at 53) in that they involve non-judicial appeal bodies
or officials like the ombudsperson. For counsel, the crucial questions are
those of determining when as a matter of law and when as a matter of
expedience they should use a route other than the regular courts to
challenge a decision.
The picture presented in this part of the text will, however, be
incomplete in four respects. First, the procedure for obtaining a particular
remedy in administrative law may differ from one province to another,
and there are minor variations across jurisdictions—sometimes resulting
from the differing procedures—in the scope and grounds of review that
are available under the various remedies. No attempt is made here to be
comprehensive.
Instead, particular attention is paid to the statutory regimes for judicial
review that are in place at the federal level and in British Columbia and
Ontario. Along with Quebec, these are the three most frequently invoked
judicial review regimes in the country and they provide useful vehicles
for a study of the process of transformation that has taken place in
different ways across Canada, from the old prerogative writ procedures
for challenging governmental action to simpler statutory-based regimes.
The second caution is a practical one. Litigation costs money and,
although some judicial review proceedings are relatively simple,
significant outlays cannot be avoided. In some jurisdictions, legal aid
may not be available or readily available for the commencement of
judicial review proceedings. Moreover, costs may not necessarily follow
a successful application for review as they do in other forms of civil
litigation, and an unsuccessful applicant may have to pay costs
increasingly as a matter of course and particularly if the court considers
that groundless allegations of impropriety have been made against a
tribunal or public official (see Sierra Club of Western Canada v British
Columbia (Chief Forester) (1994), 117 DLR (4th) 395 (BCSC)). (For a
more general identification and application of the principles governing an
award of costs to a successful litigant in the context of a Charter claim
for damages, see Stewart v Toronto (Police Services Board), 2020
ONCA 460.)
There is another important factor that enters the picture here. Unlike
most situations, success in court does not necessarily mean wider
success for the judicial review applicant. The
   
clearest illustration of this is where the basis of judicial review is a
procedural deficiency. The quashing of a decision on this basis generally
gives the decision-maker the option of proceeding again and possibly
reaching the same result. Even review for abuse of discretion does not
guarantee a favourable result on any subsequent reconsideration.
Tactical considerations such as these should be foremost in the mind of
counsel advising clients on the utility of judicial review. Counsel should
also be constantly aware of the opportunities that exist for non-judicial
resolution of many administrative law disputes—for example, applying
for a reconsideration by the statutory authority, resorting to alternative
dispute resolution mechanisms, lobbying for legislative change or
authorized political intervention or reversal, or, at a more formal level but
at far less cost to the client, approaching the provincial ombudsman.
Finally, notwithstanding an apparently strong case for judicial review,
restraint may be the best advice because of a need to maintain an
amicable relationship with a particular statutory authority. On the other
hand, there are those who advocate that counsel who are involved
frequently with a particular statutory authority should periodically
confront it with a judicial review application in order to keep the authority
on its toes.
The final matter to note is the overlap between remedies and
substance. What at first may appear to be a technical limitation
associated with a particular remedy is often in fact the product of
decisions about the substance of judicial review. Thus, in reading cases
in which remedies have been denied, one should always ask whether
the reason for the denial of relief was indeed related to the remedy itself,
or whether the judge was really rejecting the arguments on substantive
grounds, notwithstanding the use of language on remedies. Conversely,
one should be alert to situations in which judges, under the guise of
dispensing with or ignoring a rule on remedies, are in fact creating a
cause of action where none existed previously.
These considerations are part of a more general problem with any
section on remedies in an administrative law casebook—namely, the
difficulty of discerning how frequently remedies really matter in judicial
review. Simply presenting a series of cases in which there has been a
remedies difficulty may give little idea of the extent to which remedial
choices are an issue in practice. In the first 75 years of the 20th century
of administrative law in Canada, it seemed as if technical rules on the
availability of remedies too often blocked the courts from dealing with the
substantive issues at stake in applications for judicial review. This was
the subject of scathing criticism, none more damning than that of the US
academic KC Davis, who wrote in 1961 about English remedial law
(“The Future of Judge-Made Public Law in England: A Problem of
Practical Jurisprudence” (1961) 61 Colum L Rev 201 at 204):
My own view is that either Parliament or the Law Lords should
throw the entire set of prerogative writs into the Thames River,
heavily weighted with sinkers to prevent them from rising again.
Fortunately, the present reality in Canada is far removed from this
state of affairs. Reforms of statutory and procedural rules have dealt with
many anomalies. Judges are also less inclined to allow technical issues
on remedy to drive the outcome in a case. Even so, there are pockets in
which remedial difficulties continue to exist. Thus, while amendments in
1992 to the Federal Courts Act, RSC 1985, c F-7 (until 2003,
the Federal Court Act) removed many of the bizarre remedial difficulties
under that Act, problems involving how to allocate jurisdiction between
the provincial superior courts and the Federal Court still arise and still
make it to the Supreme Court, as evidenced by Reza v Canada, [1994] 2
SCR 394, 1994 CanLII 91, Mission Institution v Khela, 2014 SCC
24, and Canada (Public Safety and Emergency Preparedness) v
Chhina, 2019 SCC 29. As well, there continue to be cases in which
courts are confronted with issues about whether the pursuit of judicial
review, rather than another form of action, is the appropriate way to
proceed. With the advent of the Canadian Charter of Rights and
Freedoms, questions were raised about the appropriate vehicles for the
vindication of the rights that it conferred and, in particular, the extent to
which the remedial discretion in s 24(1) of the Charter opened
   
possibilities for innovative remedies. Those issues continue to be played
out in the courts both provincial and federal.
In addition to threshold issues, there are at least three areas where
first instance courts are faced frequently with difficult remedial issues.
The first is in the context of applications for interim or interlocutory relief
to prevent governmental action (including the holding of hearings)
pending the determination of an application for judicial review. Second,
there are arguments to the effect that the court, as a matter of discretion
and irrespective of the merits of the claim being advanced, should deny
relief—for example, in cases where another potentially effective avenue
of redress is available. Third, there are continuing problems of standing
or locus standi to seek judicial review including access to public interest
standing as opposed to personal standing.
The scheme of this part follows the path of these difficulties. In the
initial general chapter, we commence with a consideration of two of the
threshold issues identified above. Is the matter in question something
that can be dealt with in a judicial review application? That is, what is the
reach of the public law remedies available on judicial review, beyond the
core of statutory authority exercised in a public capacity by a
governmental body, official, or tribunal or agency? Further, if the matter
is properly the subject of judicial review, under what regime should it be
brought: the Federal Courts Act or the relevant provincial rules or statute
on judicial review? At this juncture, we identify the forms of relief that are
generally available regardless of the judicial review regime under which
the application is made. In so doing, we also canvass the remedial
reforms that have taken place in Canadian jurisdictions as well as some
of the limitations that apply to the various modes of relief. This includes a
separate section on the availability of interlocutory or interim remedies.
Also relevant is the determination of what evidence is admissible in the
context of applications for judicial review and statutory appeals from
statutory and prerogative decision-making. Throughout, we also consider
periodically the impact of the Canadian Charter of Rights and
Freedoms on the remedies of judicial review. Thereafter, separate
chapters are devoted to the perennial issues of standing and discretion
to deny relief. We conclude with a chapter on the availability of money
remedies in an administrative law setting, including damages for
violation of Charter rights by statutory and prerogative authorities.
For practical purposes, it is helpful to keep in mind a set of questions
that may alert you to potential remedial problems once you have
identified an apparent basis for redress. In some respects, these
questions have been framed from the perspective of the person who is
seeking relief. However, they are easily modified to reflect the position of
government and agency lawyers and other potential respondents or
defendants who wish to resist an application for judicial review.
1. Are there alternatives other than recourse to the courts for
resolving the matter in dispute? Are there potential choices that
have to be made as between or among tribunals other than the
courts? If so, what legal and practical considerations are important
in the making of those choices? Is there statutory or informal
access to reconsideration of the decision by the initial decision-
maker? Is there an internal right of appeal or recourse to
arbitration, or forms of alternative dispute resolution? Does the
authority come within the jurisdiction of the ombudsperson or
some other external complaint mechanism (such as a human
rights commission, a privacy and freedom of information
commission, or, historically, in the case of some universities, the
visitor) capable of dealing with the matter?
2. If recourse to the courts appears to be the appropriate course of
action, what is the nature of that recourse: judicial review or some
other form of remedy under the common law, equity, or a statute
(such as a right of appeal)? Is the situation one where it might be
safe to ignore the decision of the agency in question and postpone
any
   
challenge to the decision until a later stage, where one can initiate
a collateral attack on the decision or order in the context of an
enforcement proceeding? What is the nature of the body against
which relief is sought? Is it public or private, statutory or non-
statutory in nature, or a blend of both? What kind of claim is being
considered? Is it more in the nature of a contractual or tortious
claim rather than a matter of public law? Is the aim a damages
award or specific relief (such as the mandating or prevention of
governmental action)?
3. If judicial review is the appropriate course of action, does the
matter in dispute involve federal or provincial agencies? If the
former, does the application for judicial review have to be made to
the Federal Court under the Federal Courts Act or does it come
within the residual jurisdiction of the provincial superior courts over
a federal statutory authority? If there is concurrent or overlapping
jurisdiction between the Federal Court and the provincial superior
courts, in which of those venues is the matter more appropriately
litigated?
 4. Among the options provided by the public law of judicial review,
what is the nature of the relief that is required? What are the
grounds on which relief is being sought? What modes of relief
provide potential vindication on those grounds? Has a decision
been taken or an order made, or is it a situation where the aim is
to prevent or compel a decision? Would interim or interlocutory
relief, pending final disposition of a judicial review, be useful?
5. Are there limitations on the availability and scope of judicial
review, as manifested in leave to apply requirements, privative
clauses, limitation periods, or immunities from suit and testifying?
What are the notice requirements? Who must be served, with
what, and within which time period?
6. From the perspectives of procedure and evidence, is the matter
one that is capable of satisfactory resolution based on affidavit
evidence in the context of summary proceedings? Or is a trial-like
process with viva voce evidence more desirable? If the latter, is
this even an option and, if so, how is it best pursued?
7. Is there any potential problem with the standing of the person who
is seeking judicial review? Is there any empirical data or other
evidence that needs to be assembled to deal with those
difficulties? Is this a matter in which the decision-maker itself will
also have standing or be accorded intervener status? Who else
might seek intervener status and on what basis might this be
resisted?
8. Are there any discretionary reasons that may cause a court to
refuse or limit the relief that is available? Is this affected by the
ground on which judicial review is sought and the form of relief
that is pursued?
As this framework suggests, the issue of remedies is a highly
technical aspect of judicial review. Knowledge of and an ability to work
with the details count. However, this should not distract one from
scrutinizing the efficacy of the remedial scheme that Canadian courts,
legislatures, and other decision-makers have fashioned. Do the
remedies that have been developed achieve the aims of judicial review?
What is the purpose of a technical rule on remedies and does the rule
serve that purpose? The remedial issues before a judge involve
increasingly these broad questions now that the courts have long been
liberated (whether by statutory or procedural reform or by judicial
common sense) from old forms of action that were beset with
technicalities and as remedial issues have been reduced to exercises of
judicial discretion. The key question now is usually: as a matter of
judicial review policy, which remedy should be available to this
successful applicant? Counsel must therefore develop a reasoned
response to this question. As in our consideration of the grounds of
judicial review, the most effective arguments will depend in part on an
appreciation of the balance that needs to be struck between the often
competing interests of effective government action, on the one hand,
and the interests of particular individuals, corporations, and groups on
the other.
   
In many respects, this part of the text is about the interplay between
the substantive principles of judicial review and the rules on remedies
and procedure. In studying the material, however, one should not simply
look for more detailed knowledge of this interplay but also inquire about
it in a more fundamental way. What is the significance of a legal right if
the law presents barriers—perhaps impenetrable ones—to its
vindication? If, under the substantive rules of judicial review, an applicant
establishes a known ground for judicial review, what is the effect of
allowing a residual discretion by which the court can deny relief? Some
of these problems are among the more challenging in the domain of
public law.

   
CHAPTER FOURTEEN

REMEDIES FOR UNLAWFUL

ADMINISTRATIVE ACTION
   

I. HISTORICAL INTRODUCTION
Judicial review of administrative action originated in the various
prerogative writs by which the monarch, through the Court of King’s or
Queen’s Bench, controlled the exercise of authority by officials who
acted or purported to act under royal or parliamentary warrant. Thus, the
most common of these writs, certiorari, was associated in its early
history with the proceedings of inferior courts of record, as personified in
magistrates and justices of the peace, and with the very early
administrative tribunals such as the commissioners of sewers. It was a
process by which the formal record of a proceeding before such a body
was delivered to the Court of King’s or Queen’s Bench for inspection so
that the court was able “to be informed.” If the formal record revealed
that the body was acting without jurisdiction or, somewhat later in the
development of the remedy of certiorari, that it had committed an error of
law on the face of the record, its process would be quashed.
As its name indicates, the prerogative writ of prohibition served a
rather different remedial role; it was available to prohibit or prevent the
wrongful assumption of jurisdiction by an inferior court or tribunal obliged
to act judicially. In contrast, mandamus was not restricted in its
availability to inferior courts and tribunals obliged to act judicially.
Literally translated mandamus means “we order,” and its role was to
compel the performance of all manner of public duties following an
office-holder’s refusal to carry out assigned responsibilities. While there
were a range of other prerogative writs, most of them have fallen into
disuse. However, still of great constitutional importance is the writ
of habeas corpus (“let me have the body”) by which the court called
upon those having custody over a person to bring that person before the
court for the purpose of an inquiry into the legality of the detention.
In essence, certiorari and the other prerogative writs were vehicles for
ensuring that the administrative arms of government were kept under
control. In other words, it was a system of review aimed at the control
of public as opposed to private bodies. This sense of judicial review as a
public law remedy remains a crucial element even today in determining
the appropriate reach of judicial review remedies. Is this body sufficiently
public in its origins, purposes, or powers to make it subject to the
supervisory authority of the superior courts as exercised through judicial
review?

II. THE REACH OF PUBLIC LAW REMEDIES

Unfortunately, this basic question—whether an entity is public, such that
it is subject to judicial review—can be difficult to answer. It has been
affected in recent times by a more expansive approach to what counts
as public and also the recognition that some authorities possess a blend
of private and public roles. It has also been complicated by the fact that
there are private law analogues to some of the old prerogative writs.
Likewise, certain private law remedies—the declaration and the
injunction, in particular—expanded over time such that they became
available for both private and public law purposes. Finally, some of the
substantive grounds of judicial review are not peculiar to the public
domain. The private law of associations (including corporations) is
founded at least in part on concepts of jurisdiction, while the notion of
procedural fairness has played a prominent role in the judicial policing of
private clubs and organizations.
As a result, there are some contexts in which it matters little whether
the litigation is technically public or private. The remedy sought will be
the same and the allegations may be appropriately located in either the
public or the private domain. Thus, in the case of a challenge to the
procedurally unfair expulsion of a member from an association that had
its own constitutive statute (such as many Canadian universities), there
may still be doubts about whether this is a question of private or public
law. Even so, subject to reservations, this
   
question may be made irrelevant by a decision to initiate proceedings for
declaratory and/or injunctive relief.
On the other hand, there are occasions when public–private
distinctions among remedial options is crucial. Thus, the principal
statutes and amalgamations of the judicial review remedies, as found in
the Federal Courts Act and the Judicial Review Procedure Act of both
British Columbia and Ontario, contain formulas that force the issue of
whether the matter in dispute falls within the statute’s conception of the
reach of public law remedies.
Of even greater significance are situations where the issue of whether
the body or function is sufficiently public to qualify for review by way of
public law remedies is in reality an issue as to the extent to which the
courts can interfere with the decision in question. Thus, as the Supreme
Court of Canada decided in Dunsmuir v New Brunswick, 2008 SCC
9, not all employees under statute are entitled to a fair hearing before
they are dismissed. Those who are excluded are said to have no access
to public law remedies—only contractual ones—such that they may have
no entitlement to a hearing before dismissal and no possibility of
reinstatement as a remedy. Despite the fact that what is at stake is an
exercise of public power, private law rules to the exclusion of public law
remedies.
What these types of cases reveal most clearly are policy choices behind
technical issues. In some instances, the need to choose between public
and private law remedies is predicated on the principle that governments
are sometimes subject to higher obligations than actors in the private
sector. While, at common law, private sector employers are not obliged
to provide hearings before dismissing an employee and are not subject
to specific performance where there has been a wrongful dismissal,
more is often expected of governments in both respects. Likewise, when
they act as commercial operators, governments may be held to higher
standards of probity and good-faith dealing than private businesses.
While this distinction between government and the private sector is not
maintained rigidly in the jurisprudence, and while there are signs of the
law governing the two sectors tending to merge in these matters, the
different conceptions of their roles and obligations often lead to disputes
about the availability of judicial review. For a case in which these
tensions were manifest, see Société de l’assurance automobile du
Québec v Cyr, 2008 SCC 13, a 6:3 decision of the Court in which the
majority concluded that public law remedies were available to allow an
automobile mechanic to challenge the SAAQ’s decision to revoke his
accreditation, despite the SAAQ having contracted out the duty to
inspect automobiles to the mechanic’s employer. Public law remedies
were available pursuant to An Act Respecting Administrative Justice,
RSQ, c J-3 (now CQLR c J-3), s 5, which placed procedural
requirements on an administrative authority prior to its making “an
unfavourable decision concerning a permit or licence or other
authorization of like nature.” Although the case can be understood
simply as an interpretation of this provision, Bastarache J characterized
the issues more broadly at paras 1 and 25 of his majority reasons”:
[1] This appeal raises the issue of distinguishing between the
private and public actions of a public authority … More generally,
the Court has to decide whether the SAAQ has insulated itself from
the requirements of administrative law by implementing a contract-
based scheme to meet its statutory duties.
•••
[25] In an era of increased privatization of public services and
the rise of public–private partnerships, this case provides an
opportunity to consider whether a government body will avoid
public law duties when delegating its functions by way of contract
or other form of agreement.
Notably, in its application of remedies in public law to this area of
contractual relationships between government and private actors,
the Cyr decision contrasts sharply with the Court’s contemporaneous
decision in Dunsmuir on procedural fairness in the dismissal of public
officers.

Historically, the law on the availability of public law remedies was

bedevilled by the so-called Atkin dictum in R v Electricity
Commissioners, ex parte London Electricity Joint Committee Co, [1924]
1 KB 171 (CA) (as glossed by Lord Hewart CJ in R v Legislative
Committee of the Church Assembly, [1928] 1 KB 411). Atkin LJ (as he
then was) said in that case that the remedies of certiorari and prohibition
were available “[w]herever any body of persons hav[e] legal authority to
determine questions.” This was interpreted subsequently as confining
the reach of public law remedies to bodies that were genuinely statutory.
As a result, the inquiry on whether a body was sufficiently public in its
origins, its purposes, or its powers was often determined by an
examination of whether it exercised a statutory power. For a time, this
excluded judicial review of powers exercised under the royal prerogative
and, even today, it sometimes causes judicial review applications to be
rejected when brought against governmental bodies on the basis that
they do not have a clear warrant for existence in statute. This is
exemplified by the first instance judgment in Volker Stevin NWT (‘92) Ltd
v Northwest Territories (Commissioner) (1993), 15 Admin LR (2d) 211,
[1993] NWTJ No 76 (QL) (NWTSC), reversed however by 1994 CanLII
5246, 113 DLR (4th) 639 (NWTCA) in the context of decisions made by
a non-statutory committee under a government directive without explicit
statutory warrant. See also Masters v Ontario 1993 CanLII 8530, 110
DLR (4th) 407 (Ont Div Ct), relied on by the Court of Appeal in Volker
Stevin in justification of reversing the first instance judgment.
A. GOVERNMENT IN THE CONDUCT OF BUSINESS

Volker Stevin involved the withdrawal of preferential status in the

awarding of government contracts in the Northwest Territories, a
decision that raises the thorny question of the extent to which public law
remedies should be available to question various aspects of government
procurement policies and practices, including the actual awarding of
contracts. In Volker Stevin, the Court of Appeal held that the principles of
public law applied to the process of withdrawing the applicant’s
classification and remitted the matter to the court below for determination
whether there had been a denial of procedural fairness in the process
that was followed.

However, the Court of Appeal seemed to accept that the actual

procurement decisions of government are not appropriate for judicial
review because they represent government acting in a purely
commercial capacity. Is this an appropriate stance for the court to take?
Does it mean that there are some exercises of power under statutory
authorization that are not sufficiently public to attract judicial review? If
so, on what bases should this distinction be drawn? Note the judgment
of Strayer J, then of the Federal Court Trial Division, in Assaly (Thomas
C) Corporation v Canada (1990), 44 Admin LR 89, in which he held that
unfairness in a government tendering process was subject to judicial
review. In contrast, see the post-Dunsmuir decision in Irving Shipbuilding
Inc v Canada (Attorney General), 2009 FCA 116, where Evans JA
concluded that the subcontractor of an unsuccessful bidder for a
government procurement contract (to supply in-service support to
Canada’s Victoria Class submarines) could not apply for judicial review
in order to challenge the fairness of the process for awarding the
contract when the unsuccessful bidder had decided not to litigate. After
discussing various reasons for this holding, all related to Irving
Shipbuilding’s status as a subcontractor rather than as a contracting
party to the tendering process, Evans JA then offered this last rationale,
at para 54, which would apply more generally to limit the availability of
judicial review to challenge government procurement where it is subject
to contract:

[54] [O]nce a contract has been awarded, the public has an interest in
the avoidance of undue delays in its performance, and in ensuring that
government is able promptly to acquire the goods and services that it
needs for the discharge of its responsibilities. The normal remedy for
breach of contract is a simple award of damages, which does not delay
the performance of the contract by the winning bidder. In contrast, the
more intrusive public law remedy sought by the appellants is that the
contract awarded to CSMG [the successful bidder] be set aside, so that
the tendering process can start again. Governments’ recent resort to
funding “shovel-ready” infrastructure projects as part of a strategy for
promoting economic recovery vividly illustrates that delays in getting
publicly financed work underway may be detrimental to the public
interest.

However, he did concede limited room for judicial review of procurement

processes:

[61] [I]f a case arose where the misconduct of government officials was
so egregious that the public interest in maintaining the essential integrity
of the procurement process was engaged, I would not want to exclude
the possibility of judicial intervention at the instance of a subcontractor.
However, given the powerful reasons for leaving procurement disputes
to the law of contract, it will only be in the most extraordinary situations
that subcontractors should be permitted to bring judicial review
proceedings to challenge the fairness of the process.

Subsequently, in Rapiscan Systems, Inc v Canada (Attorney General),

2014 FC 68, Annis J upheld a defeated bidder’s entitlement to challenge
the lawfulness of a procurement process. In so doing, he accepted (at
paras 113-17) that a more expansive scope for judicial review is called
for when a defeated bidder rather than a subcontractor is the applicant.
On appeal, the Federal Court of Appeal upheld the ruling that the
process was amenable to judicial review and sustained the setting aside
of the outcome though not on the grounds of procedural unfairness:
2015 FCA 96.

For an important case in which the Supreme Court of Canada split on

whether to apply a contractual or administrative law approach to
intervention in the implementation of the Indian Residential Schools
Agreement and the interpretation of the Agreement under an
adjudicative process provided for in the Agreement, see JW v Canada
(Attorney General), 2019 SCC 20.

Recall also in this context the judgment of McLachlin J in Shell Canada

Products Ltd v Vancouver (City), [1994] 1 SCR 231, 110 DLR (4th) 1
(see Chapter 12 of this text). There, she held (in a part of her judgment
in which all of the Court concurred) that resolutions passed by
Vancouver city council to boycott trade with apartheid South Africa were
subject to judicial review under the BC Judicial Review Procedure Act.

More recently, the functional, context-sensitive approach of Volker

Stevin to discerning whether a body is both exercising public or
governmental power and subject to the public law remedial regime was
developed further by Stratas JA of the Federal Court of Appeal. In
setting out a template for dealing with such issues, Stratas JA was
influenced by the English Court of Appeal judgment in R v Panel on
Takeovers and Mergers, ex parte Datafin PLC, [1987] QB 815 (Eng CA)
on which the Court in Volker Stevin also relied.
Air Canada v Toronto Port Authority

2011 FCA 347

[At issue was the reviewability of bulletins issued by the Toronto Port
Authority respecting the allocation of landing spots at Billy Bishop Airport
in Toronto and its actions in grandparenting the existing landing spots
allocated to Porter Airlines. Among the issues raised in the case was
whether the bulletins and the actions of the Authority were sufficiently
public to attract judicial review under s 18.1 of the Federal Courts Act. In
delivering judgment in which the other two members of the Court only
concurred in the actual disposition of the appeal, Stratas JA set out a list
of criteria to be considered when issues arose as to whether a particular
decision or decision-maker was amenable to public law judicial review.]
STRATAS JA (delivering the judgment of a court otherwise consisting of
Létourneau and Dawson JJA):

C. Was the Toronto Port Authority Acting as a “Federal Board,

Commission or Other Tribunal” When It Engaged in the Conduct
Described in the Bulletins?

(1) This Is a Mandatory Requirement

[44] An application for judicial review under the Federal Courts Act can
only be brought against a “federal board, commission or other tribunal.”

[45] Various provisions of the Federal Courts Act make this clear.
Subsection 18(1) of the Federal Courts Act vests the Federal Court with
exclusive original jurisdiction over certain matters where relief is sought
against any “federal board, commission or other tribunal.” In exercising
that jurisdiction, the Federal Court can grant relief in many ways, but
only against a “federal board, commission or other tribunal”: subsection
18.1(3) of the Federal Courts Act. It is entitled to grant that relief where it
is satisfied that certain errors have been committed by the “federal
board, commission or other tribunal”: subsection 18.1(4) of the Federal
Courts Act.

(2) What Is a “Federal Board, Commission or Other Tribunal”?

[46] “Federal board, commission or other tribunal” is defined in

subsection 2(1) of the Federal Courts Act. Subsection 2(1) tells us that
only those that exercise jurisdiction or powers “conferred by or under an
Act of Parliament” or “an order made pursuant to [Crown prerogative]”
can be “federal boards, commissions or other tribunals”:

2.(1) In this Act, ...

“federal board, commission or other tribunal” means any body, person or

persons having, exercising or purporting to exercise jurisdiction or
powers conferred by or under an Act of Parliament or by or under an
order made pursuant to a prerogative of the Crown …

[47] These words require us to examine the particular jurisdiction or

power being exercised in a particular case and the source of that
jurisdiction or power: Anisman v. Canada (Canada Border Services
Agency), 2010 FCA 52, 400 NR 137.

[48] The majority of decided cases concerning whether a “federal board,

commission or other tribunal” is present turn on whether or not there is a
particular federal Act or prerogative underlying an administrative
decision-maker’s power or jurisdiction. Anisman is a good example. In
that case the source of the administrative decision-maker’s power was
provincial legislation, and so judicial review under the Federal Courts Act
was not available.

[49] In this case, all parties accept that the actions disclosed in the
Toronto Port Authority’s bulletins find their ultimate source in federal law.
[50] However, before us, the Toronto Port Authority submits that that
alone is not enough to satisfy the requirement that an entity was acting
as a “federal board, commission or other tribunal” when it engaged in the
conduct or exercised the power that is the subject of judicial review. It
has cited numerous cases to us in support of the proposition that the
conduct or the power exercised must be of a public character. An
authority does not act as a “federal board, commission or other tribunal”
when it is conducting itself privately or is exercising a power of a private
nature: see, for example, DRL Vacations Ltd. v. Halifax Port Authority,
2005 FC 860, [2006] 3 FCR 516; Halterm Ltd. v. Halifax Port Authority
(2000), 184 FTR 16 (TD).

[51] The Toronto Port Authority’s submission has much force.

[52] Every significant federal tribunal has public powers of decision-

making. But alongside these are express or implied powers to act in
certain private ways, such as renting and managing premises, hiring
support staff, and so on. In a technical sense, each of these powers
finds its ultimate source in a federal statute. But, as the governing cases
cited below demonstrate, many exercises of those powers cannot be
reviewable. For example, suppose that a well-known federal tribunal
terminates its contract with a company to supply janitorial services for its
premises. In doing so, it is not exercising a power central to the
administrative mandate given to it by Parliament. Rather, it is acting like
any other business. The tribunal’s power in that case is best
characterized as a private power, not a public power. Absent some
exceptional circumstance, the janitorial company’s recourse lies in an
action for breach of contract, not an application for judicial review of the
tribunal’s decision to terminate the contract.

[53] The Supreme Court has recently reaffirmed that relationships that
are in essence private in nature are redressed by way of the private law,
not public law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR
190. In that case, a government dismissed one of its employees who
was employed under a contract governed by the ordinary laws of
contract. The employee brought a judicial review, alleging procedural
unfairness. The Supreme Court held that in the circumstances the matter
was private in character and so there was no room for the implication of
a public law duty of procedural fairness.

[54] Recently, on the same principles but on quite different facts, the
Supreme Court found that a relationship before it was a public one and
so judicial review was available: [Canada (Attorney General) v] Mavi,
[2011 SCC 30, [2011] 2 SCR 504 (Ont)].

[55] A further basis for this public-private distinction can be found in

subsection 18(1) of the Federal Courts Act which provides that the main
remedies on review are certiorari, mandamus and prohibition. Each of
those is available only against exercises of power that are public in
character. So said Dickson J (as he then was) in the context of certiorari
in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 SCR 602
….

[56] The tricky question, of course, is what is public and what is private.
In Dunsmuir and in Mavi, the Supreme Court did not provide a
comprehensive answer to that question.

[57] Perhaps there can be no comprehensive answer. In law, there are

certain concepts that, by their elusive nature, cannot be reduced to clear
definition. For example, in the law of negligence, when exactly does a
party fall below the standard of care? We cannot answer that in a short
sentence or two. Instead, the answer emerges from careful study of the
factors discussed in many cases decided on their own facts. In my view,
determining whether a matter is public or private for the purposes of
judicial review must be approached in the same way.

[58] Further, it may be unwise to define the public-private distinction with

precision. The “exact limits” of judicial review have “varied from time to
time” to “meet changing conditions.” The boundaries of judicial review, in
large part set by the public–private distinction, have “never been and
ought not to be specifically defined.” See the comments of Justice
Dickson (as he then was) in Martineau, supra at 617 … .

[59] While the parties, particularly the Toronto Port Authority, have
supplied us with many cases that shed light on the public-private
distinction for the purposes of judicial review, only preliminary comments
necessary to adjudicate upon this case are warranted in these
circumstances.

[60] In determining the public-private issue, all of the circumstances must

be weighed: Cairns v. Farm Credit Corp., [1992] 2 FC 115 (TD); Jackson
v. Canada (Attorney General) (1997), 141 FTR 1 (TD). 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. Some of the relevant factors disclosed by the
cases are as follows:

• The character of the matter for which review is sought. Is it a private,

commercial matter, or is it of broader import to members of the public?
See DRL v. Halifax Port Authority, supra; Peace Hills Trust Co. v.
Moccasin, 2005 FC 1364 at para 61, 281 FTR 201 (TD) (“[a]dministrative
law principles should not be applied to the resolution of what is,
essentially, a matter of private commercial law …”).

• The nature of the decision-maker and its responsibilities. Is the

decision-maker public in nature, such as a Crown agent or a statutorily-
recognized administrative body, and charged with public responsibilities?
Is the matter under review closely related to those responsibilities?

• The extent to which a decision is founded in and shaped by law as

opposed to private discretion. If the particular decision is authorized by
or emanates directly from a public source of law such as statute,
regulation or order, a court will be more willing to find that the matter is
public: Mavi, supra; Scheerer v. Waldbillig (2006), 208 OAC 29, 265
DLR (4th) 749 (Div. Ct.); Aeric, Inc. v. Canada Post Corp., [1985] 1 FC
127 (TD). This is all the more the case if that public source of law
supplies the criteria upon which the decision is made: Scheerer v.
Waldbillig, supra at paragraph 19; R. v. Hampshire Farmer’s Markets
Ltd., [2004] 1 WLR 233 at page 240 (CA), cited with approval in
MacDonald v. Anishinabek Police Service (2006), 83 OR (3d) 132 (Div.
Ct.). Matters based on a power to act that is founded upon something
other than legislation, such as general contract law or business
considerations, are more likely to be viewed as outside of the ambit of
judicial review: Irving Shipbuilding Inc, [v Canada (Attorney General),
[2010] FC 488]; Devil’s Gap Cottager (1982) Ltd. v. Rat Portage Band
No. 38B, 2008 FC 812 at paras 45-46, [2009] 2 FCR 276.

• The body’s relationship to other statutory schemes or other parts of

government. If the body is woven into the network of government and is
exercising a power as part of that network, its actions are more likely to
be seen as a public matter: Onuschak v. Canadian Society of
Immigration, 2009 FC 1135 at para 23, 357 FTR 22; Certified General
Accountants Association of Canada v. Canadian Public Accountability
Board (2008), 233 OAC 129 (Div. Ct.); R. v. Panel on Take-overs and
Mergers; Ex Parte Datafin plc., [1987] QB 815 (CA); Volker Stevin
N.W.T. (‘92) Ltd. v. Northwest Territories (Commissioner), [1994] NWTR
97 (CA); R. v. Disciplinary Committee of the Jockey Club, ex parte Aga
Khan, [1993] 2 All ER 853 at page 874 (CA); R. v. Hampshire Farmer’s
Markets Ltd., supra, at page 240 (CA). Mere mention in a statute,
without more, may not be enough: Ripley v. Pommier (1990), 99 NSR
(2d) 338, [1990] NSJ No. 295 (SC).

• The extent to which a decision-maker is an agent of government or is

directed, controlled or significantly influenced by a public entity. For
example, private persons retained by government to conduct an
investigation into whether a public official misconducted himself may be
regarded as exercising an authority that is public in nature: Masters v.
Ontario (1993), 16 OR (3d) 439, [1993] OJ No. 3091 (Div. Ct.). A
requirement that policies, by-laws or other matters be approved or
reviewed by government may be relevant: Aeric, supra; Canadian
Centre for Ethics in Sport v. Russell, [2007] OJ No. 2234 (SCJ).

• The suitability of public law remedies. If the nature of the matter is such
that public law remedies would be useful, courts are more inclined to
regard it as public in nature: Dunsmuir, supra; Irving Shipbuilding, supra
at paragraphs 51-54.

• The existence of compulsory power. The existence of compulsory

power over the public at large or over a defined group, such as a
profession, may be an indicator that the decision is public in nature. This
is to be contrasted with situations where parties consensually submit to
jurisdiction. See Chyz v. Appraisal Institute of Canada (1984), 36 Sask R
266 (QB); Volker Stevin, supra; Datafin, supra.

• An “exceptional” category of cases where the conduct has attained a

serious public dimension. 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.
(3) Application of These Principles to the Facts of This Case

[61] In my view, the matters set out in the bulletins—the matters subject
to review in this case—are private in nature. In dealing with these
matters, the Toronto Port Authority was not acting as a “federal board,
commission or other tribunal.”

[62] While no one factor is determinative, there are several factors in this
case that support this conclusion.
-I-

[63] First, in engaging in the conduct described in the bulletins, the

Toronto Port Authority was not acting as a Crown agent.

[64] Section 7 of the Canada Marine Act provides that a port authority,
such as the Toronto Port Authority, is a Crown agent only for the
purposes of engaging in port activities referred to in paragraph 28(2)(a)
of the Act. Those activities are “port activities related to shipping,
navigation, transportation of passengers and goods, handling of goods
and storage of goods, to the extent that those activities are specified in
the letters patent.” Port authorities can engage in “other activities that
are deemed in the letters patent to be necessary to support port
operations” (paragraph 28(2)(b) of the Act) but, by virtue of section 7 of
the Act, they conduct those activities on their own account, not as Crown
agents.

[65] The letters patent of the Toronto Port Authority draw a distinction
between matters on which it acts as a Crown agent and matters on
which it does not. In section 7.1, the letters patent set out what port
activities under paragraph 28(2)(a) of the Canada Marine Act that the
Toronto Port Authority may do—activities for which the Toronto Port
Authority is a Crown agent. In section 7.2, the letters patent set out all
other activities that are necessary to support port operations—activities
for which the Toronto Port Authority acts on its own account, and not as
a Crown agent. [66] Subsection 7.2(j) of the letters patent is most
significant. In that subsection, the Toronto Port Authority is authorized to
manage and operate the City Airport. For this purpose, it is not a Crown
agent. ...

•••

[67] Air Canada submits that the allocation of takeoff and landing slots at
the City Airport is a matter relating to licensing federal real property, a
matter that falls under subsections 7.1(c), (e) and (f) of the letters patent.
It submits that takeoff and landing slots are allocated by way of “licence.”
Air Canada also submits that subsection 7.1(a), which provides for the
“issuance … of authorizations respecting use … of the port,” embraces
the granting of takeoff and landing slots. Accordingly, says Air Canada,
when the Toronto Port Authority allocates takeoff and landing slots, it
does so as a Crown agent.

[68] Air Canada is correct in saying that section 7.1 of the letters patent
includes “licences” over “federal real property” and the issuance of
“authorizations” for use of the port. …

•••

[69] However, in my view, the licences and authorizations mentioned in

section 7.1 of the letters patent do not relate to takeoff and landing slots
at the City Airport. The granting of takeoff and landing slots, even if they
are legally considered to be the granting of licences over federal real
property, is an integral part of the operation of the City Airport, a matter
that is dealt with under section 7.2.

•••

- II -

[73] The private nature of the Toronto Port Authority is another factor
leading me to conclude that the Toronto Port Authority was not acting as
a “federal board, commission or other tribunal” in this case.

[74] As noted above, the Toronto Port Authority received letters patent.
One condition of receiving letters patent was that the Toronto Port
Authority was and would likely remain “financially self-sufficient”: Canada
Marine Act, paragraph 8(1)(a). Buttressing this condition is subsection
29(3) of the Act. It provides as follows:

29.(3) Subject to its letters patent, to any other Act, to any regulations
made under any other Act and to any agreement with the Government of
Canada that provides otherwise, a port authority that operates an airport
shall do so at its own expense.

[75] Subsections 8(1) and 29(3) of the Canada Marine Act are
indications that, in operating and maintaining the City Airport under
section 7.2 of the letters patent, the Toronto Port Authority may pursue
private purposes, such as revenue generation and enhancing its
financial position. For the Toronto Port Authority, to a considerable
extent, the matters discussed in the bulletins have a private dimension to
them.

- III -

[76] I turn now to some of the other relevant factors commonly used in
making the public-private determination for the purposes of judicial
review. I mentioned these in paragraph 60, above.

[77] In no way can the Toronto Port Authority be said to be woven into
the network of government or exercising a power as part of that network.
The Canada Marine Act and the letters patent do the opposite.

[78] There is no statute or regulation that constrains the Toronto Port

Authority’s discretion. There is no statute or regulation that supplies
criteria for decision-making concerning the subject-matters discussed in
the bulletins. Put another way, the discretions exercised by the Toronto
Port Authority that are evidenced in the bulletins are not founded upon or
shaped by law, but rather are shaped by the Toronto Port Authority’s
private views about how it is best to proceed in all the circumstances.
[79] There is no evidence showing that on the matters described in the
bulletins, and indeed in its operation and maintenance of the City Airport,
the Toronto Port Authority is instructed, directed, controlled, or
significantly influenced by government or another public entity. As well,
there are no legislative provisions that would lead to any such finding of
instruction, direction, control or influence.

[80] Finally, there is no evidence before this Court in this particular

instance that would suggest that the matters described in the bulletin fall
with the exceptional category of cases where conduct has attained a
serious public dimension or that the matters described in the bulletin
have caused or will cause a very serious, exceptional effect on the rights
or interests of a broad segment of the public, such that a public law
remedy is warranted.

[81] For the foregoing reasons, in engaging in the conduct described in

the bulletins in this instance, the Toronto Port Authority was not acting in
a public capacity, as that is understood in the jurisprudence. Therefore,
judicial review does not lie in these circumstances.

•••

Appeal dismissed.

NOTES

The Stratas judgment informed the Ontario courts in determining

whether a body is sufficiently public in nature as to justify judicial review
under that province’s Judicial Review Procedure Act. See the arguably
contrasting decisions in Setia v Appleby College, 2013 ONCA 753,
rejecting the deployment of the Act to challenge a private school’s
expulsion of a pupil, and West Toronto United Football Club v Ontario
Soccer Association, 2014 ONSC 5881, applying the Act to an OSA
Protest Committee’s reversal of a match result. This serves as a
convenient linkage point with the following section.

B. VOLUNTARY ASSOCIATIONS

In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee)

v Wall, 2018 SCC 26, the Supreme Court discussed the availability of
certiorari in the context of decisions made by voluntary, religious
associations. The Jehovah’s Witnesses allow for “disfellowship” of a
member of their religious community who engages in conduct that
deviates from their accepted standards, a process that involves an
appearance before a body of elders called the “Judicial Committee.” Mr
Wall was disfellowshipped through this process. He brought an
application for judicial review at the Court of Queen’s Bench in Alberta,
seeking the remedy of certiorari based on an alleged breach of
procedural fairness in the disfellowship process. Where the lower courts
had considered the merits of the application and found in favour of Mr
Wall, a unanimous Supreme Court with Rowe J writing found that the
decision at stake lay beyond the reach of public law remedies: “judicial
review is limited to public decision makers, which the Judicial Committee
is not” (at para 2):

[20] … [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.

[21] … The proposition that private decisions of a public body will not be
subject to judicial review does not make the inverse true. Thus it does
not follow that “public” decisions of a private body—in the sense that
they have some broad import—will be reviewable. The relevant inquiry is
whether the legality of state decision making is at issue.

Significantly, Rowe J distinguished Air Canada v Toronto Port Authority

as a decision about the availability of judicial review under the Federal
Courts Act and what constitutes a federal board, tribunal, or commission,
rather than about the availability of judicial review for review of decisions
of voluntary associations. He also (at para 19) qualified Setia in the
sense that its formula, albeit excluding access to public law judicial
review in that case, was nonetheless overly expansive in terms of what
situations were sufficiently public as to attract judicial review.

More recently, with Rowe J once again delivering the judgment of the
Court, the Supreme Court went even further in limiting access to judicial
scrutiny of the decisions of voluntary associations. In Ethiopian Orthodox
Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22, it
was held that the strictures on public law relief set out in Highwood
Congregation could not be overcome by suing in contract or on the basis
of property rights in the instance of excommunications from a church
allegedly contrary to the rules of procedural fairness. The mere fact that
this unincorporated association had a constitution did not mean that
there was necessarily a contractual relationship between members and
the church such as to ground a cause of action. Especially in religious
(as opposed to property and employment) settings, those suing had to
establish a clear intention that the mutual obligations accepted by
members were legally as well as spiritually binding. On the facts, the
plaintiffs had not established that the “conditions for contract formation
are met” (para 49).

Another area where issues arise as to the availability of public law

judicial review is that of frequently incorporated organizations that
regulate the pursuit of professions and occupations. Consider whether
the judgment that follows can still be sustained on an application of the
factors identified by Stratas JA in Air Canada v Toronto Port Authority or
the test adopted by Rowe J in Highwood Congregation. Also, compare
Roscoe J’s judgment to that of Coffin J at first instance in the much
earlier Nova Scotia case of R v Halifax-Dartmouth Real Estate Board, ex
parte Seaside Real Estate Ltd (1963), 42 DLR (2d) 442 (NSSC), rev’d on
other grounds (1964), 44 DLR (2d) 248 (NSSC en banc).

Ripley v Investment Dealers Association of Canada

(1990), 99 NSR (2d) 338, [1990] NSJ No 295 (QL) (TD), aff’d 1991
CanLII 2445, 108 NSR (2d) 38 (AD)

[Ripley was fined and suspended from membership in the Investment

Dealers Association (IDA) for professional misconduct following a
hearing by the IDA’s discipline committee. He sought various forms of
relief against the association, including certiorari, prohibition, and a
declaration. He alleged that the proceedings were invalid on the basis of,
among other things, jurisdictional error and breach of the rules of natural
justice.]

ROSCOE J:

The I.D.A. is one of a number of self-regulatory organizations [SROs]

which operate within the securities industry in Canada. The other [SROs]
are the Toronto, Montreal, Vancouver, Alberta and Winnipeg Stock
Exchanges, the Winnipeg Com

modity Exchange and the Toronto Futures Exchange. All of the stock
brokerage firms in Canada are members of one or more of the [SROs],
depending on their location and type of business. The [SROs] have
protocol agreements with each other, providing for procedures and
responsibilities for conducting investigations into the activities of firms
and employees of firms who are members of more than one [SRO], in
order to avoid duplication and confusion. Firms who have membership in
more than one [SRO] are called joint members. ...
•••

b) Certiorari

The applicant argues that, although the I.D.A. is a non-statutory

domestic tribunal, it performs a public function and, therefore, it is an
inferior tribunal over which the court has some control by way of the
prerogative remedy of certiorari, and in particular, certiorari may be used
to review the decision of the disciplinary tribunal to determine if it
exceeded its jurisdiction or made an error of law on the face of the
record.

The respondent submits that the I.D.A. does not derive any authority
from statute and it is not exercising any government function by either
implied or explicit delegation of the legislature, and, therefore, its
Disciplinary Committee is not subject to certiorari for error of law on the
face of the record.

The applicant, in his argument, reviews the Securities Act, SNS 1984, c.
11, which regulates trading in securities and in particular, those sections
dealing with registration of investment dealers, the bonding of dealers
and procedures for segregation of funds. The Act, in s. 150(f), authorizes
the Governor in Council to make Regulations authorizing the delegation
by the Minister to a stock exchange or the Investment Dealers
Association of Canada of any powers or duties of the registrar respecting
the registration or renewal of registration of a dealer. However, it does
not appear that any such Regulations delegating powers to the I.D.A.
have yet been proclaimed. Under s. 150(g) the Act provides that
regulations may be made classifying registrants into different categories
but indicates that no registrant shall be included in a category
designated as an “investment dealer” unless he is a member of the
Atlantic District of the Investment Dealers Association of Canada. The
applicant also points out that, under certain Regulations that have been
made under the Act, members of the Investment Dealers Association are
exempt from certain requirements regarding bonding and participation in
a compensation fund. In addition, another regulation regarding business
procedures indicates that compliance may be effected by following the
guidelines established by the I.D.A. The applicant submits that, by these
references to the I.D.A., in the Statute and the Regulations, the
legislation “adopts the I.D.A. as an arm of its regulatory scheme.”

Since no regulation has been passed which delegates any authority to

the I.D.A., under the Securities Act, and since it is not the registrar,
under the Securities Act, who is empowered to discipline registrants, I
am in agreement with the argument by the respondent that mere
reference to the I.D.A. in the Statute and recognition of its registration
requirements, does not transform the I.D.A. into a statutory tribunal or an
agent of the government. It is the Securities Commission, established by
the Securities Act, that has the power to enforce compliance with the
Act, and there is no suggestion that the I.D.A. acts as a delegate or
agent of the Securities Commission. I agree with the respondent’s
submission that the Regulations simply recognize that the Association
has procedures and rules that are acceptable to the registrar. It should
be noted that, if the I.D.A. disciplinary panel were to revoke the approval
of Mr. Ripley, it would not result in automatic revocation of his
registration under the Securities Act.

•••

... In Chyz v. Appraisal Institute of Canada [(1984), 36 Sask R 266 (QB)]

Wright, J. [at 273] described the respondent as: ...

… a voluntary, private organization incorporated without share capital

under the Companies Act of Canada. While membership in the institute
is certainly and obviously important to any person practising as an
appraiser in Canada, membership is voluntary as is the case with the
local real estate boards referred to in the decisions first cited. There is no
evidence before me that lack of membership in the institute would
preclude an appraiser from carrying on his or her practice in this
province however prestigious and helpful membership in the institute
might be in the way of qualifications. The authority exercised by the
Committee as a creation of the institute is not statutory. Certiorari and
prohibition, generally speaking, will not lie against a private body which
derives its jurisdiction from the consent of its members banded together
in a voluntary association. The institute is such an association.

•••

In summary, then, I find that the I.D.A. and its Disciplinary Committee
are not subject to certiorari for error on the face of the record since its
authority over its members and employees of members is derived solely
from contract, and although the organization is recognized by Statute, it
does not derive any authority to discipline its members from the Statute
nor is it acting as an agent or delegate of the Crown in the exercise of its
functions.

•••

Applications dismissed.

NOTES AND QUESTIONS

1. On appeal, the Appeal Division of the NS Supreme Court upheld

Roscoe J’s holding that certiorari was not available to challenge the
jurisdiction and procedure of the IDA and its discipline committee.
However, the Court (as had Roscoe J) accepted that such a challenge
could properly be brought in Nova Scotia by way of an application for
declaratory relief, which Ripley had also sought. Even so, his claim for
declaratory relief failed on the merits.

2. In its judgment, the Appeal Division provided more details of the

nature of the regulatory role played by the IDA:
The Investment Dealers Association (IDA), as explained at some length
in the appellant’s factum, is an unincorporated association which
oversees the investment and brokerage business in Canada, serving as
the professional organization of, and regulating, member brokerage
houses and their employees. It is not specifically empowered under any
statute, although its existence is recognized in some securities
legislation. It has its own constitution, by-laws and regulations to which
its members bind themselves by contract to comply. The IDA establishes
requirements for capitalization, procedures for purchase, sale and
registration of securities for clients, audit procedures and other matters
that govern the internal and external operations of national and local
investment firms. The IDA also sets standards of qualifications for, and
for the discipline of, persons engaged in the industry. Its authority does
not extend to regulating the actual issuance of securities: that is vested
in provincial securities commissions and the various stock exchanges
sold. The sale of securities is regulated by statute in all Provinces. It is
the persons and the firms who sell the securities that are regulated by
the IDA.

•••

It was acknowledged that the appellant had agreed to bind himself to the
by-laws, rules and regulations of the IDA and made himself responsible
for knowing their contents. IDA approval is required at various career
stages beginning with securities salesman, or registered representative,
and Mr. Ripley had in fact signed similar undertakings several times
occasioned by his promotions.

Does this affect your views as to the degree of control that the IDA had
over Ripley’s occupational opportunities and, as a consequence, the
holding that the IDA and its disciplinary committee were not exercising
authority that was amenable to public law review?

3. For an example deploying both Highwood Congregation and Toronto

Port Authority to deny access to public law judicial review in the case of
denial of reinstatement of a real estate agent’s licence by the Real
Estate Association of Edmonton, a “voluntary, non-profit, private
organization registered as a cooperative under the Cooperatives Act”
(para 1), see Sedgwick v Edmonton Real Estate Board Co-Operative
Listing Bureau Ltd, 2021 ABQB 59. However, given the extent of
privatization, deregulation, and outsourcing over the past two decades, it
is inevitable that this issue will continue to arise. For example, should
privately operated correctional facilities be amenable to public law
remedies in exercising their disciplinary powers? To what extent should
stock exchanges be subject to judicial review in public law when
exercising authority conferred directly on them by statute or delegated to
them under the statutory mandate of a securities commission?

III. THE IMPACT OF STATUTORY REMEDIAL REGIMES

The language of statutes such as Ontario’s Judicial Review Procedure

Act, in which the remedies of public law are not only replaced but
consolidated and codified in a single application for judicial review, did
have an impact on the extent of relief.

A. THE FEDERAL COURTS ACT

Under the Federal Courts Act, the Federal Court’s original judicial review
jurisdiction is expressed in s 18 in terms of the review of a “federal
board, commission or other tribunal.” Section 2 of the Federal Courts Act
defines that term as follows:

[A]ny body, person or persons having, exercising or purporting to

exercise jurisdiction or powers conferred by or under an Act of
Parliament or by or under an order made pursuant to a prerogative of the
Crown, other than the Tax Court of Canada or any of its judges, any
such body constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance with a law
of a province or under section 96 of the Constitution Act, 1867.
[Emphasis added.]
Notable in this definition is the inclusion in 1990 of prerogative powers, a
puzzling omission from the original 1970 version. However, the wording
was problematic. Did it apply to direct exercises of the prerogative as
opposed to decisions made or actions taken under formal instruments
that were issued under the royal prerogative? Black v Canada (Prime
Minister) (2001), 54 OR (3d) 215, 199 DLR (4th) 228 (CA) held that
when the Prime Minister was advising the British government on Conrad
Black’s peerage, he was exercising a prerogative power rather than
acting under an order made in exercise of the prerogative. This did not
come within the definition. As a result, the Ontario courts were properly
seized of the matter; it was not within the jurisdiction of the Federal
Court. However, the Federal Court of Appeal has since rejected this
interpretation and held that direct exercises of the prerogative are
included and reviewable in the Federal Court: Hupacasath First Nation v
Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4.

The phrase “by or under an Act of Parliament” obviously extends to

powers conferred by subordinate as well as primary legislation.
However, as seen in Air Canada v Toronto Port Authority, the same
questions that surfaced in Volker Stevin do arise under the Federal
Courts Act. To what extent does the Act justify the review of decision-
making bodies that do not have a clear warrant in either an act or a
regulation? Can intervention be justified either on a theory of implied
legislative mandate or, now, by reference to the residual royal
prerogative?

B. THE JUDICIAL REVIEW PROCEDURE ACTS OF BRITISH

COLUMBIA AND ONTARIO

The key sections in each of these Acts are worded similarly. Section 2 of
the BC Judicial Review Procedure Act, RSBC 1996, c 241 provides as
follows:
2(1) An application for judicial review must be brought by way of a
petition proceeding.

(2) On an application for judicial review, the court may grant any relief
that the applicant would be entitled to in any one or more of the
proceedings for

(a) relief in the nature of mandamus, prohibition or certiorari;

(b) a declaration or injunction, or both, in relation to the exercise, refusal

to exercise, or proposed or purported exercise, of a statutory power.
[Emphasis added.]

The term “statutory power” is then defined in s 1 as:

a power or right conferred by an enactment

(a) to make a regulation, rule, bylaw or order,

(b) to exercise a statutory power of decision,

(c) to require a person to do or to refrain from doing an act or thing that,

but for that requirement, the person would not be required by law to do
or to refrain from doing,

(d) to do an act or thing that would, but for that power or right, be a
breach of a legal right of any person, or

(e) to make an investigation or inquiry into a person’s legal right, power,

privilege, immunity, duty or liability. [Emphasis added.]
Finally, “statutory power of decision” is also defined as:

a power or right conferred by an enactment to make a decision deciding

or prescribing

(a) the legal rights, powers, privileges, immunities, duties or liabilities of

a person, or

(b) the eligibility of a person to receive, or to continue to receive, a

benefit or licence, whether or not the person is legally entitled to it,

and includes the powers of the Provincial Court.

(The only substantial difference between the provisions of the BC Act

and those of the Ontario Judicial Review Procedure Act, RSO 1990, c
J.1 is the omission from the Ontario Act of para (e) of the definition of
statutory power.)

Three points should be made here about these two regimes.