Judicial review is a public law remedy, but does this preclude it from being available for decisions made by private entities such as voluntary associations or political parties? Divergent lines of judicial authority have led to inconsistent answers to this question in Ontario. However, a recent decision of the Ontario Divisional Court, The Conservative Party of Canada v. Trost, 2018 ONSC 2733 [Trost], has now confirmed that the answer to that question is "yes". Importantly, the Divisional Court held that the Ontario Court of Appeal's decision in Setia v. Appleby College, 2013 ONCA 753 [Setia], was not intended to expand the availability of judicial review beyond the traditional scope of supervision of government activity.
Background
Mr. Trost was a candidate in the leadership contest for the Conservative Party of Canada (the "Party"). The Executive Director of the Party alleged that Mr. Trost's campaign leaked the Party's membership list. After an inquiry, Mr. Trost was fined $50,000 for the leak. He applied for judicial review of that decision on the basis that the Party failed to follow its own rules, and alleged that the decision gave rise to a reasonable apprehension of bias.
The Party moved to quash Mr. Trost's application on the basis that it was not amenable to judicial review because the decision to fine Mr. Trost was not an exercise of statutory authority. A single judge of the Court referred this question to a hearing before a full panel of the Divisional Court for resolution, which was necessary because two lines of conflicting jurisprudence had arisen in the courts of Ontario and other jurisdictions as to the availability of judicial review for decisions of private entities. Some authorities held that judicial review was solely limited to decisions or activities based in statutory exercises or grants of power. The conflicting line of authorities held that, in circumstances where the...
