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Divisional Court Affirms that Judicial Review Requires Exercise of a Public Power

Published: 05/07/2018

Team: Laurie Livingstone, Arthur L. Hamilton

In a decision released May 7, 2018, the Ontario Divisional Court made an important clarification regarding the correct interpretation of the Court of Appeal for Ontario’s 2013 decision in Setia v. Appleby College, 2013 ONCA 753, and re-affirmed that judicial review only applies to decisions made in the exercise of power derived from government. 

In Trost v. Conservative Party of Canada, 2018 ONSC 2733, the Divisional Court affirmed that judicial review applications cannot be brought against private actors. In Trost, a failed candidate for the leadership of the Conservative Party of Canada was fined $50,000 under the leadership election rules following a finding that his campaign was the source of a leaked membership list. The candidate had an appeal right under the leadership election rules but instead brought a judicial review application before the Divisional Court alleging that the process he had been fined under was unfair.

In quashing Mr. Trost’s application for judicial review, the Divisional Court affirmed longstanding jurisprudence that requires an exercise of power that comes from the government before certiorari or any of the other prerogative writs are available. The Divisional Court also identified an incorrect line of authorities that had developed following Setia which allowed judicial review applications to be initiated against private actors, primarily sport associations and political parties. The Divisional Court confirmed that line of authorities, which culminated in the decision Graff v. New Democratic Party, 2017 ONSC 3578, were wrongly decided.

Finally, and perhaps most importantly, the Divisional Court  confirmed that the Court of Appeal’s decision in Setia did not change the law of judicial review. No matter how public a private party’s actions are, they are not subject to review using the public law process of judicial review. The Divisional Court confirmed that the factors listed in Setia, “are used to determine whether public or private law remedies are available in respect of a particular exercise of power by a governmental decision maker or a decision maker who derives power from government. Those factors were not meant to be used to subject the decisions of private actors to judicial review.”

This decision represents an important clarification regarding the application of Setia and confirms the longstanding jurisprudence that restricts judicial review to decisions made by those exercising authority derived from the government.

Arthur Hamilton and Laurie Livingstone of Cassels Brock represented the Conservative Party of Canada in Trost v. Conservative Party of Canada, 2018 ONSC 2733.