March 21, 2024

By Nick Melchiorre 

Judicial review is like an express lane towards a court decision – it is only available to review administrative decisions of governmental bodies. occasionally clogged by a twelve-car pileup, but more efficient than the typical Superior Court collector lane pace.

Also like an express lane, it only works to the extent that it has rules limiting entry.

THE ISSUE

So, that creates periodic difficulty defining what fits that test. For instance, are governmental contracts subject to review, or like private commercial matters, are they banished to the slow lane?

THE CASE

The Divisional Court looks at this issue in A-1 Credit Recovery v. Ministry of Finance and collects some wisdom about when a governmental decision about a contact is reviewable.

The general rule is that contracts are not the sort of decisions that are reviewable. That turned out to be the case for A-1’s unsuccessful bid for government collection work – they were ineligible because their license had lapsed. Suing in Superior Court would be risky at best, and likely would not get A-1 the contract. So, it asked the Divisional Court to review the decision.

“No thank you,” is essentially what the court said.

To get there, the judges reviewed the criteria for distinguishing a private contract from a reviewable government decision:

• The decision must be constrained by law;
• But there must be an exercise of discretion;
• It had public interest implications beyond the immediate parties;
• It involves a significant expenditure of public funds;
• The private law remedies must be limited;
• The character of the matter;
• The nature of the decision maker and its responsibilities;
• The decision maker must have a close relationship to other government agencies;
• The suitability of remedies found in judicial review; and
• Whether the decision was an exercise of the government’s power to compel compliance by a group of parties.

The Court found that A-1 and the Ministry bid did not fit any of these categories. This contrasts with Thales DIS Canada Inc. v. Ontario a 2022 bidding contest which involved issues of compliance with Free Trade treaty obligations. In Thales, five of the criteria were found to weigh in favour of judicial review. That was enough for the application to proceed.

TAKEAWAYS

• Not all government decisions are reviewable
• To be reviewable, they cannot involve a purely private commercial contract
• Whether a contract award or denial is reviewable depends on the criteria listed

HOW WEILERS LLP CAN HELP YOU

Dealing with government is never easy. If you are treated unfairly, administrative law such as judicial review may help you. Knowing when to seek judicial review rather than ordinary remedies such as damages is trickly.

We know administrative law.

We are used to analyzing complex fact situations and making recommendations to clients about the most cost-effective pathway to the best legal result. We work with clients of all sorts, from multinationals to individuals.

When you are confronted by an adverse administrative decision that you think is “just wrong”, or a tribunal or court proceeding has already been started, we would be happy if you give us a call to discuss whether Weilers LLP are the right lawyers for you.