Case information

Administrative law — Judicial review — Decision of sufficiently public character — Procedural fairness — Public law remedies — Should the test to determine when an exercise of state authority is of “sufficiently public character” to ground judicial review be clarified? — When, if ever, can a bilateral memorandum of understanding entered into by an administrative decision-maker transform the nature of the underlying decision and remove it from the supervisory jurisdiction of the Superior Court? — Are public law remedies appropriate where the underlying matter may touch on sensitive law enforcement information, or where individuals have limited statutory access to information rights concerning the underlying documents?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant, Yazdan Khorsand, applied for the position of Special Constable with the Toronto Community Housing Corporation (“TCHC”). In order to qualify for this position, he was required to pass a background check conducted by the respondent, the Toronto Police Services Board (“TPSB”). After being informed that he did not pass the pre screen background check, the applicant made an access to information request to the TPSB. Since the disclosed records did not reveal why he would have failed a background assessment, the applicant wrote to the TPSB and the TCHC requesting the reasons why he failed the background check. However, his requests were denied. The applicant then brought an application for judicial review, challenging the TPSB’s pre-screening decision and its decision not to disclose the reasons relied upon in making that decision. Both the TPSB and the other respondent, the Toronto Police Chief James Ramer, were named in the application. The majority of the Divisional Court concluded that judicial review was available and allowed the application. It found that the pre-screening decision was of a sufficiently public nature and that the TPSB had breached its minimal duty of procedural fairness. In contrast, the dissent concluded that the pre-screening decision was, at its core, a private decision and therefore not amenable to judicial review. The Court of Appeal for Ontario allowed the respondents’ appeal. It held that the pre-screening decision was not judicially reviewable because it was not of a sufficiently public character.