November 19, 2024
We have discussed judicial review in other articles. In 2020, we explained that it is “a process by which courts supervise decisions of administrative bodies”. In 2024, we clarified that private contracts of government bodies are not reviewable, based upon a decision of the Divisional Court, the entry-level court for a judicial review.
THE ISSUE
What does the Ontario Court of Appeal have to say about what sort of decisions have a public character and are subject to review?
THE CASE
This is addressed by the Ontario Court of Appeal in Khorsand v. Toronto Police Services Board. This case involved an applicant for employment by the Toronto Community Housing Corporation (TCHC) as a special constable. As part of the hiring process, the TCHC obtained a records check from the Toronto Police Service. The applicant, who had no criminal record, was rejected as a result of this search. He applied for judicial review against the TPS.
The TPS Board has the statutory power to appoint special constables and will not make an appointment unless the applicant passes a satisfactory background check. Despite this, the employer would be TCHC, not TPS.
TPS argued that this was a private employment decision of TCHC, and did not have sufficient public character to be reviewable.
The Court decided that it was the TCHC that was responsible for screening, training, and hiring, all of which happen before any application is made for a special constable appointment. Though TCHC has a public character, even a public body may make some decisions which are private in nature.
The Supreme Court of Canada has characterized hiring of staff as private in nature. The Court of Appeal ruled that the pre-screening process was a part of the hiring process. The Court of Appeal further decided that no human rights violation could be inferred, overruling the Divisional Court on this point. Finally, they ruled that public law remedies were not suitable in this case, expressing concern that public law remedies could “chill the ability to conduct a proper background investigation.”
TAKEAWAYS
- Only decisions of a public character are subject to review.
- Not all decisions by public bodies are decisions of a public character.
- Private decisions of a public body- such as hiring decisions- will not be subject to judicial review.
WHAT WEILERS LLP CAN DO TO 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 tricky.
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.