7/14/2021 9.

Backdrop to the Standard of Review Analysis - NCA Exam Reviewer

NCA Exam Reviewer Search this site

Home Administrative Law‎> ‎

Notice and Disclaimer
Contract Law Review Notes for
9. Backdrop to the Standard of Review Analysis
the NCA Examinations
Property Law Review Notes
  Q.9-01: What factors determines a body's amenability to judicial  
Administrative Law
review in Federal Courts?
1. Setting the Stage
2. Sources of Procedural
Obligation   Answer: 27     On this, I agree with the respondents' submissions  
3. Procedural Obligation and the Federal Court judge's holding: in issuing the
Triggers (Knight "Three- bulletins and in engaging in the conduct described in
Prong" and Legitimate the bulletins, the Toronto Port Authority did nothing to
Expectations)
trigger rights on the part of Air Canada to bring a
4. Procedural Obligation
Triggers (Legislative
judicial review.
Decisions & Emergencies)
5. Procedural Obligation 28     The jurisprudence recognizes many situations where,
Triggers (Charter & Bill of by its nature or substance, an administrative body's
Rights) conduct does not trigger rights to bring a judicial review.
6. Content of Procedural
Obligations (Right to be 29     One such situation is where the conduct attacked in
Heard)
an application for judicial review fails to affect legal
7. Content of Procedural
Obligations (Unbiased
rights, impose legal obligations, or cause prejudicial
Decision-maker) effects: Irving Shipbuilding Inc. v. Canada (Attorney
8. Content of Procedural General), 2009 FCA 116, [2010] 2 F.C.R. 488; Democracy
Obligations (Issues arising Watch v. Conflict of Interest and Ethics Commission, 2009
from institutional decision- FCA 15, (2009), 86 Admin. L.R. (4th) 149.
making)
9. Backdrop to the Stand… 30     The decided cases offer many illustrations of this
of Review Analysis
situation: e.g., 1099065 Ontario Inc. v. Canada (Minister
10. Evolution of the Standard
of Review Analysis
of Public Safety and Emergency Preparedness), 2008 FCA
11. The Current Test
47, 375 N.R. 368 (an official's letter proposing dates for
12. Venue and Basic
a meeting); Philipps v. Canada (Librarian and Archivist),
Procedure for Judicial Review 2006 FC 1378, [2007] 4 F.C.R. 11 (a courtesy letter
13. Remedies written in reply to an application for reconsideration);
Ontario Bar Exams Rothmans, Benson & Hedges Inc. v. Minister of National
Commercial Tenancies Act Revenue, [1998] 2 C.T.C. 176, 148 F.T.R. 3 (T.D.) (an
(CTA) advance ruling that constitutes nothing more than a
Immigration non-binding opinion).
Sitemap
xxx

60     In determining the public-private issue, all of the

Site Visits circumstances must be weighed: Cairns v. Farm Credit
Corp., [1992] 2 F.C. 115 (T.D.); Jackson v. Canada
(Attorney General) (1997), 141 F.T.R. 1 (T.D.). 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
https://sites.google.com/site/ncaflsc/canadian-administrative-law/9-backdrop-to-the-standard-of-review-analysis 1/6
7/14/2021 9. Backdrop to the Standard of Review Analysis - NCA Exam Reviewer

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
paragraph 61, 281 F.T.R. 201 (T.D.) ("[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 O.A.C. 29, 265 D.L.R. (4th) 749 (Div.
Ct.); Aeric, Inc. v. Canada Post Corp., [1985] 1 F.C. 127 (T.D.).
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 W.L.R. 233 at page 240 (C.A.), cited with
approval in MacDonald v. Anishinabek Police Service (2006), 83
O.R. (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, supra; Devil's Gap Cottager (1982) Ltd. v. Rat
Portage Band No. 38B, 2008 FC 812 at paragraphs 45-46,
[2009] 2 F.C.R. 267.

- 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:
Onuschuk v. Canadian Society of Immigration, 2009 FC 1135 at
paragraph 23, 357 F.T.R. 22; Certified General Accountants
Association of Canada v. Canadian Public Accountability Board
(2008), 233 O.A.C. 129 (Div. Ct.); R. v. Panel on Take-overs and
Mergers; Ex Parte Datafin plc., [1987] Q.B. 815 (C.A.); Volker
Stevin N.W.T. ('92) Ltd. v. Northwest Territories (Commissioner),
[1994] N.W.T.R. 97, 22 Admin. L.R. (2d) 251 (C.A.); R. v.
Disciplinary Committee of the Jockey Club, ex parte Aga Khan,
[1993] 2 All E.R. 853 at page 874 (C.A.); R. v. Hampshire
Farmer's Markets Ltd., supra at page 240 (C.A.). Mere mention
in a statute, without more, may not be enough: Ripley v.
Pommier (1990), 99 N.S.R. (2d) 338, [1990] N.S.J. No. 295
(S.C.).

- 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

https://sites.google.com/site/ncaflsc/canadian-administrative-law/9-backdrop-to-the-standard-of-review-analysis 2/6
7/14/2021 9. Backdrop to the Standard of Review Analysis - NCA Exam Reviewer

exercising an authority that is public in nature: Masters v.

Ontario (1993), 16 O.R. (3d) 439, [1993] O.J. 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]
O.J. No. 2234 (S.C.J.).

- 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 (Q.B.);
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.

-- Air Canada v. Toronto Port Authority, 2011 FCA 347,

Federal Court of Appeal (December 12, 2011), STRATAS
J.A.

 
  Q.9-02: What factors determines a body's amenability to judicial  
review in Provincial Courts?
 
  Answer: 32     In my view the jurisdiction to make an order for  
judicial review quashing the expulsion decision does not
depend on whether the decision is the exercise of a
statutory power of decision. Rather, the jurisdiction
provided by s. 2(1)1 of the JRPA turns on whether the
expulsion decision is the kind of decision that is reached
by public law and therefore a decision to which a public
law remedy can be applied. This reflects the purpose of the
JRPA, namely to provide a simplified process to obtain
public law remedies in those circumstances where public
law applies.

33     The assessment of whether a particular decision is

subject to public law and its remedies requires a careful
consideration of the relevant circumstances of the
particular case informed by the experience of the caselaw.
https://sites.google.com/site/ncaflsc/canadian-administrative-law/9-backdrop-to-the-standard-of-review-analysis 3/6
7/14/2021 9. Backdrop to the Standard of Review Analysis - NCA Exam Reviewer

I agree with the approach of Stratas J.A. in Air Canada v.

Toronto Port Authority, 2011 FCA 347. He said this at
para. 60:

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.

34     In his very helpful reasons, Stratas J.A., at para. 60,

described a number of relevant factors disclosed by the
case law:

* the character of the matter for which review is sought;

* the nature of the decision-maker and its responsibilities;

* the extent to which a decision is founded in and shaped by law

as opposed to private discretion;

* the body's relationship to other statutory schemes or other parts

of government;

* the extent to which a decision-maker is an agent of

government or is directed, controlled or significantly influenced
by a public entity;

* the suitability of public law remedies;

* the existence of a compulsory power;

* an "exceptional" category of cases where the conduct has

attained a serious public dimension.

35     Four are particularly germane in this case.

36     The first factor is the nature of the decision-maker

and its responsibilities. Here Appleby is the effective
decision-maker. It was created by statute, clearly an
important consideration that often points strongly towards
permitting judicial review. The public flavour this provides
is however significantly diminished in this case, because
the Appleby Act is a private statute not part of the
general law, and hence not a law with wide public effect.

37     Appleby's mission is to engage in educating young

people, an important public function which no doubt gives
its educational activities a public character, certainly to the
extent that Appleby is regulated by the Education Act in
doing so. While there may be a public dimension to certain
aspects of Appleby's conduct which are subject to judicial
review, this does not mean that every action taken by
Appleby is subject to judicial review. Many of its
decisions will concern only private matters with limited

https://sites.google.com/site/ncaflsc/canadian-administrative-law/9-backdrop-to-the-standard-of-review-analysis 4/6
7/14/2021 9. Backdrop to the Standard of Review Analysis - NCA Exam Reviewer

connection to Appleby's educational role under the

Education Act. The decision taken by Appleby here is one
of discipline of a student. While that decision may to some
extent, be connected to Appleby's educational role, it is not
regulated by the Education Act, but rather by the contract
between parents and the school. Thus neither Appleby's
statutory origin nor its educational mission provide any
significant public character to the expulsion decision.

38     The second consideration is the decision-maker's

relationship to other parts of government or other statutory
schemes. While important in some cases, that is of no
moment here. Appleby is a private school whose only
interaction with government is its modest relationship to
the Ministry of Education. Its actions can hardly be seen as
being directed, or significantly influenced, by government,
or performing a service at the behest of government. This
makes it less likely that its discipline decisions are seen as
a public matter.

39     The third relevant consideration here is the character

of the matter for which review is sought. That matter is the
expulsion decision concerning an individual student at
Appleby, a private school. It is the kind of decision that
could affect only the students who choose to attend
Appleby. It is not of broader import to members of the
public. In my view, that tends to make the decision more
private than public in nature.

40     The final, and in some ways the most important,

consideration is the extent to which the expulsion decision
is shaped by private law rather than public law. That
decision is sourced in the private legislation of the
Appleby Act, but only in the sense that the Act establishes
the Board of Governors and gives it the discretion to
confer on its Head of School the powers of discipline it
thinks necessary. However, the criteria upon which the
expulsion decision is made are provided by the private law
of the contract between Gautam's parents and Appleby.
Although the Setias seek to use public law to impose
procedural obligations on Appleby in making that
decision, Appleby acknowledges that the Setias are
protected in this regard by their contract. The analogy
with Dunsmuir, suggests that in these circumstances,
the Setias' remedy should be in private law, not in
public law.

41     In summary, even if the expulsion decision is

considered a statutory power of decision because it can be
said to be ultimately sourced in legislation, that does not
answer the question raised in this appeal. I recognize that
in many cases the presence of a statute will strongly point
to the availability of judicial review. However, here the
other considerations I have outlined must also be placed in
https://sites.google.com/site/ncaflsc/canadian-administrative-law/9-backdrop-to-the-standard-of-review-analysis 5/6
7/14/2021 9. Backdrop to the Standard of Review Analysis - NCA Exam Reviewer

the balance to determine whether the Divisional Court had

jurisdiction under s. 2(1)1 of the JRPA to issue the order
for judicial review quashing the expulsion decision. When
that is done, I think the conclusion is clear that the
decision is not the kind of matter reached by public law. It
simply does not have a sufficient public dimension. It is
not something to which public law remedies can therefore
be applied. The Divisional Court did not have jurisdiction
under the JRPA to issue the order for judicial review.

-- Setia v. Appleby College, 2013 ONCA 753,

Ontario Court of Appeal (December 13, 2013), S.T.
GOUDGE J.A.

Comments

You do not have permission to add comments.

Sign in | Recent Site Activity | Report Abuse | Print Page | Powered By Google Sites

https://sites.google.com/site/ncaflsc/canadian-administrative-law/9-backdrop-to-the-standard-of-review-analysis 6/6