CITATION: Wauzhushk Onigum Nation v. Minister of Finance (Ontario), 2019 ONSC 3491

DIVISIONAL COURT FILE NO.: 578/18

DATE: 20190606

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Then, Swinton and Sachs JJ.

BETWEEN:

WAUZHUSHK ONIGUM NATION

Applicant

– and –

MINISTER OF FINANCE (ONTARIO), ONTARIO LOTTERY AND GAMING CORPORATION AND GATEWAY CASINOS AND ENTERTAINMENT LTD.

Respondents

Kate Kempton, Kevin Hille and Corey Shefman, for the Applicant

Sarah Valair, David Tortell and Colin Bourrier, for the Minister of Finance (Ontario)

John E. Callaghan, Mark Crane and Haddon Murray, for the Ontario Lottery and Gaming Corporation

Jason Woycheshyn, for Gateway Casinos and Entertainment Ltd.

HEARD at Toronto: April 8, 9, 10, and 11, 2019

The Court

INTRODUCTION

[1] The Applicant, Wauzhushk Onigum Nation (“WON”), brings an application for judicial review of three decisions made by the Ontario Lottery and Gaming Corporation (“OLG”) pursuant to the Ontario Minister of Finance’s (the “Minister”) directions. All of the decisions affect the conduct of gaming in Ontario. In order to understand the nature of the decisions it is necessary to highlight key aspects of the events giving rise to them.

[2] On February 8, 2012, the Ontario Cabinet issued its Directive on Modernization (“Modernization”) through a Cabinet Minute. The Cabinet Minute directed OLG to work with the Minister to increase net profits to Ontario by optimizing land-based gaming. Cabinet told OLG to shift operations of its gaming sites to private operators through a competitive procurement process. The Cabinet Minute also included special directions to ensure First Nations participation and economic benefits to them.

[3] The Cabinet Minute directed that gaming zones be established to designate where gaming sites can be located (“Gaming Zones”). One proposed new Gaming Zone identified by Cabinet was Kenora. Cabinet’s directions were communicated to OLG by the Minister in a letter in April 2012.

[4] WON is an Anishinaabe First Nation within Treaty 3, with a reserve located near Kenora, Ontario. Since 1994 WON has had a license to conduct charitable gaming on its reserve, which it has done through a facility known as the Golden Eagle Bingo Hall (“Golden Eagle”). WON has long had an interest in expanding Golden Eagle and turning it into a full casino, including slot machines.

[5] In May 2012, OLG issued a Request for Information (“RFI”). The RFI was issued to allow stakeholders and interested parties, including WON, to provide feedback on the proposed business model, the potential geographic areas for Gaming Zones, and whether Gaming Zones should be clustered into gaming bundles (“Gaming Bundles”). Bundling would mean that any bidder would be bidding to operate casinos in more than one gaming zone. OLG proposed that the boundaries of the Kenora Gaming Zone include a portion of the WON reserve.

[6] OLG met with many of those who had responded to the RFI, including WON. After doing so, OLG prepared a Request for Pre-Qualification (“RFPQ”). At the beginning of November 2012, the OLG Board of Directors approved OLG management’s approach to the issuance of the RFPQ, subject to review by the Minister and the Attorney General, which were obtained. It was at this point that the OLG Board of Directors approved the individual Gaming Zones and the Gaming Bundles. Kenora, including a portion of the WON reserve, was approved as a Gaming Zone and it was included in the North Bundle.

[7] On November 30, 2012, the RFPQ for the North Bundle was issued. Two of the parties who responded to the RFPQ were Gateway Casinos and Entertainment Ltd. (“Gateway”) and Leaf Entertainment Group II Limited Partnership (“Leaf”). Leaf stated in its response to the RFPQ that it had a “signed agreement with [WON] granting them a 20% interest in the Kenora casino”.

[8] In November 2013, Gateway and Leaf were selected as prequalified bidders for the Request for Proposal (“RFP”). In November 2015, OLG released the RFP to both prequalified bidders.

[9] In September 2016, Leaf submitted a response to the RFP in which it stated that it had entered into a non-binding Memorandum of Understanding (“MOU”) with WON whereby WON would receive 20% of the proceeds of the casino established in the Kenora Gaming Zone. However, Leaf did not propose to site its casino on the WON reserve; it proposed that its casino be sited elsewhere in Kenora. The Leaf response stated that WON fully supported its proposal. WON has confirmed that it was partnered with Leaf through the RFP process.

[10] In December 2016, OLG publicly announced that Gateway was the successful proponent in the RFP for the North Bundle. After this selection OLG and Gateway executed two agreements – a Transition and Asset Purchase Agreement (“TAPA”) in December 2016 and a Casino Operating and Services Agreement (“COSA”) in May 2017.

[11] In September 2018, WON commenced an application for judicial review. In November of 2018 the application was amended to make it clear that in its application WON was seeking to quash the following decisions:

“The Minister’s and/or the OLG’s decision to enter into the Gateway Agreements, or the Gateway Agreements themselves or those parts of the Gateways Agreements that pertain to the Kenora Gaming Zone (the “Gateway Agreements Decision”) made in or around May 2017”;

The Minister’s and/or the OLG’s decision in early 2012 to issue a public tender for the development of the casino in the Kenora area (the “Decision to Tender”); and

The Minister’s and/or OLG’s decision in late 2012 to bundle the Kenora Gaming Zone with the North Gaming Bundle (the “Decision to Bundle”).

[12] WON is also seeking declarations that the three decisions at issue are void and of no force and effect.

[13] The Minister and OLG have brought a motion seeking to dismiss WON’s application for delay.

[14] For the reasons that follow we are dismissing WON’s application, both on the merits and on the grounds of delay.

BACKGROUND

Legislative Framework for Gaming in Ontario

[15] Gambling is illegal in Canada, subject to certain exceptions identified in the Criminal Code, R.S.C., 1985, c. C-46. One exception is set out in s. 207(1)(a) of the Criminal Code, which provides that it is lawful for the government of a province to conduct and manage a lottery scheme in that province. OLG (formerly known as the Ontario Casino Corporation) conducts and manages lottery schemes on behalf of Ontario pursuant to s. 207(1)(a) and the Ontario Lottery and Gaming Corporation Act, 1999, S.O. 1999, c. 12, Sch L ( the “OLG Act”).

[16] A second exception is set out in s. 207(1)(b), which provides that is lawful for a charitable or religious organization to conduct and manage a lottery scheme, pursuant to a license issued by the Lieutenant Governor in Council of a province. Lottery schemes established pursuant to s. 207(1)(b) are prohibited from operating electronic games (e.g. slot machines), and are limited to raffles, bingos, and other table games, such as blackjack and poker.

[17] OLG does not have a role in the conduct and management of lottery schemes pursuant to s. 207(1)(b). WON’s facility, Golden Eagle, was established pursuant to s. 207(1)(b). The responsibility for its regulation rests with the Alcohol and Gaming Commission of Ontario (the “AGCO”).

1993-1994: WON’s Establishment of Golden Eagle

[18] In Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950 (“Lovelace”), Iacobucci J., writing on behalf of the Supreme Court, gives a useful summary of the political context in which the agreement to operate Golden Eagle was made (at paras. 22-26):

For Ontario’s First Nations bands, a nexus has emerged between gaming and self-government efforts, and has involved the development of corresponding relations with the province. The province’s jurisdiction for gaming activities arises by virtue of s. 207 of the Criminal Code, R.S.C., 1985, c. C-46, which permits gambling activities which are provincially licensed, managed, and strictly regulated. In turn, most provincial licensing authority for charitable gaming was delegated to municipalities by order in council. Before the early 1990s most Ontario gaming was limited to licensed charitable gaming. Many bands were involved in this form of gaming; however, since reserves are not subject to municipal jurisdiction these communities received their licenses directly from the province.

In 1992, the province announced its intention to go beyond charitable gaming activities and enter the field of commercial casino gaming. Windsor, Ontario was chosen as a pilot project in 1992, and the province created the Ontario Casino Corporation in order to manage casino gaming in accordance with the newly enacted Ontario Casino Corporation Act, 1993, S.O. 1993, c. 25.

First Nations bands had identified gaming initiatives as a vehicle for providing an economic base for self-government activities. Consequently, between 1991 and 1993, First Nations bands approached the provincial government for the right to control reserve-based gaming activities, asserting an inherent aboriginal right to operate gaming activities without having to acquire a provincial license. The profits from these activities were to be used to strengthen band economic, cultural and social development. In particular, the Shawanaga First Nation strongly asserted that an aboriginal right to self-government included the right to self-regulate gaming activities (see R. v. Jones, 1996 161 (SCC), [1996] 2 S.C.R. 821 (S.C.C.)).

All of this was occurring during the Charlottetown Accord constitutional debates. However, the failure of the Accord meant the demise of a number of provisions supporting aboriginal self-government which had been a part of the Accord package. Consequently, Ontario First Nations bands sought alternative routes to self-government. One such effort took shape with the negotiation and signing of the Statement of Political Relationship (“SPR”), signed in August 1991 by Ontario, and the Chiefs of Ontario. This agreement provided the basis of establishing “government-to-government” relations between the province and bands, and committed these parties to negotiate the exercise and the implementation of First Nations jurisdiction and self-reliance.

In 1991 and 1992, preliminary meetings were held with different First Nations bands to discuss the various ways in which gaming and other economic development issues could be addressed. In this process, Ontario was motivated to consider a reserve-based commercial casino in order to further its commitment to the SPR, as well as to establish more accountable gaming practices on the reserves.

[19] In 1993, WON and the Government of Ontario entered into the 1993 WON Agreement. Pursuant to that agreement, WON was granted the authority to issue a license for charitable gaming on the WON reserve pursuant to s. 207(1)(b) of the Criminal Code.

[20] In the recitals to the 1993 WON Agreement the following appears:

WHEREAS it is the position of the Wauzhushk Onigum Nation that Anishinabe people have the authority and jurisdiction over gaming pursuant to their treaty and inherent Aboriginal rights and in accordance with section 35 of the Constitution Act, 1982 which recognizes and affirms the existing treaty and Aboriginal rights of the Aboriginal peoples of Canada;

AND WHEREAS it is the position of Ontario, as reflected in the Statement of Political Relationship, that all First Nations in Ontario have an inherent right to be self-governing within the Canadian constitutional framework, and Ontario and First Nations will negotiate on a government-to-government basis….

[21] The 1993 WON Agreement provided for the establishment of the Wauzhushk Onigum Gaming Commission (the “WON Gaming Commission”) which would be responsible for the licensing of s. 207(1)(b) charitable gaming activities on the reserve. The WON Gaming Commission was to adopt a gaming code that stated that gaming was to be conducted in accordance with the Criminal Code. The 1993 WON Agreement was signed in October 1993 and was to continue in force for a period of ten years.

[22] Pursuant to the 1993 WON Agreement, WON obtained a license to open Golden Eagle. As a lottery scheme operated pursuant to s. 207(1)(b), Golden Eagle was not permitted to operate electronic games such as slot machines.

The Period from 1994 to 2004

[23] When Golden Eagle opened in 1994, it offered a variety of games (including bingo and table games), food, drink, and entertainment. Its profits were used for charitable purposes for the benefit of WON and its members. WON members were employed there.

[24] Unfortunately, during the first ten years of its operation, Golden Eagle had a number of problems. For example, Golden Eagle:

1. laid off more than half of its employees in the spring of 1996;

2. had seven general managers in ten years;

3. lost its original gaming operator, Gaming World International (“GWI”), which was never successfully replaced;

4. was sued by GWI, which resulted in WON consenting to a $4 million judgment against it in favour of GWI;

5. was sued by its consultant, Lombard North, which helped it set up Golden Eagle; and

6. was sued by Indian Gaming of America, which loaned money to Golden Eagle and had proposed to become its operator.

[25] The problems also included integrity and compliance issues. These problems were identified by AGCO in reports that it prepared (and provided to WON) in April 2000 and in June, September, and November 2003. These reports were motivated by the pending expiry of the 1993 WON Agreement and the need for a decision as to whether that agreement would be renewed.

[26] Among other things, these reports found that Golden Eagle was insolvent and that WON was contemplating the possibility of closing its gaming table section and operating Golden Eagle as a “regular bingo hall”.

[27] In February 2004, the AGCO found that its previously identified deficiencies from June 2003 had not been remedied. Ontario agreed to extend the WON Agreement, but on the condition that Golden Eagle remove its table games and only operate as a charity bingo hall.

[28] This situation continues to date.

Developments in the Supreme Court of Canada Jurisprudence During the Term of the 1993 WON Agreement

[29] In the preamble to the 1993 WON Agreement WON asserted its right to gaming pursuant to s. 35(1) of the Constitution Act, 1982. During the term of this agreement the Supreme Court of Canada issued two significant judgments with respect to this right.

[30] In 1996, the Court issued its decision in R. v. Pamajewon (also known as R. v. Jones), 1996 161 (SCC), [1996] 2 S.C.R. 821, 138 D.L.R. (4th) 204 (“Pamajewon”). In Pamajewon, two members of the Shawanaga First Nation were found guilty of the offence of keeping a common gaming house. The charges arose out of the high stakes bingo and other gambling activities that took place on their reserve. They appealed their convictions. Their appeals were dismissed by the Court of Appeal for Ontario and leave to appeal was granted to the Supreme Court of Canada.

[31] Both appellants claimed that the gambling activities in which they took part and their First Nation’s regulation of those activities “fell within the scope of the aboriginal rights recognized and affirmed by s. 35(1)” (at para. 23). According to the appellants, s. 35(1) encompassed the right to self-government and this right included the right to regulate gaming activities on the reserve.

[32] The Supreme Court dismissed the appeals, finding first that the appellants’ claim could not be characterized as a right to self-government, as this would not allow the Court to consider the claim “at the appropriate level of specificity” (at para. 27). Second, the Court found that the evidence put forward by the appellants of a long tradition of public games and sporting events that pre-dated the arrival of Europeans did not “demonstrate that gambling, or that the regulation of gambling, was an integral part of the distinctive cultures of the Shawanaga or Eagle Lake First Nations” (at para. 28).

[33] In particular, the majority of the Court agreed with the observation of the trial court that “commercial lotteries such as bingo are a twentieth century phenomena and nothing of the kind existed among aboriginal peoples and was never a part of the means by which these societies were traditionally sustained or socialized” (at para. 29). Given this, the Court found that the appellants had failed to demonstrate that their gambling activities or the First Nation’s regulation of those activities “took place pursuant to an aboriginal right recognized and affirmed by s. 35(1) of the Constitution Act, 1982” (at para. 30).

[34] In 2000, in Lovelace, the Supreme Court heard another appeal that involved the consideration of whether gambling or the right to regulate gambling was an aboriginal right. Five of the seven judges who heard Lovelace also presided in Pamajewon. In Lovelace, at para. 111, the following statement is made:

Furthermore, in Pamajewon, supra, this Court found that gambling, or the regulation of gambling activities, is not an aboriginal right.

The Period From 2004 - 2012

[35] By 2004, when the WON Agreement was renewed, WON had indicated a desire to expand its Golden Eagle operation into a full-fledged casino, including asking Ontario for permission to install and operate slot machines. In 1999, a representative of the Ontario Management Board Secretariat indicated that Ontario was prepared to grant this request, subject to an appropriate business case.

[36] In 2005, the government placed a moratorium on new gaming site development in Ontario. This moratorium remained in place until Modernization.

[37] WON took the position with Ontario that Golden Eagle was not a new facility and thus, Ontario could consider its request to expand and install slot machines. Until 2012, WON attempted to negotiate with Ontario to this effect. As part of these negotiations it attempted to meet Ontario’s demands that it find a suitable business partner and that it conduct financial feasibility studies. WON expended significant financial resources on these efforts. From its perspective, it had received enough encouragement from Ontario (including OLG) to make these expenditures worthwhile.

[38] Commencing in 2008, Ontario advised WON that Ontario was involved in gaming policy reviews and that any proposal WON had would have to await the completion of these reviews. In January 2011, OLG released the Terms of Reference for a Strategic Business Review. As part of that process it announced that it was embarking on a consultation process to “hear stakeholder views on the future of lottery and gaming in the province of Ontario”. In a meeting with OLG on December 14, 2010, WON was told of the review and told that it would be considered a “stakeholder” and consulted. As part of that consultation OLG held an in-person meeting with WON representatives on April 13, 2011.

[39] In the meantime, starting in December 2010, the discussions between WON and OLG became more focused about WON’s Golden Eagle expansion proposal. These discussions continued into March 2012.

[40] On March 12, 2012, the Modernization initiative was publicly announced and, on April 20, 2012, OLG wrote to WON and told it that the procurement process established by Modernization was the “only route through which OLG will accept any proposals, including yours.”

Modernization

The Driving Forces Behind Modernization

[41] Profits from gaming are a critical component of Ontario’s revenue. The 2008 recession negatively impacted Ontario’s business environment. In 2010, the government’s budget forecasted a substantial deficit. At the same time, OLG’s net revenues to the Province were falling due to a number of factors, including new passport requirements to travel to and from the U.S., aging demographics, competition from new American gaming facilities near the Canadian border, the strength of the Canadian dollar and the rise of online gaming. It was estimated that OLG’s revenues would continue to decrease in the years to come.

[42] To address declining OLG revenues, on July 7, 2010 Cabinet directed OLG to work with the Minister “to increase net provincial revenue by modernizing commercial and charitable gaming in the province.” This review was to encompass not just casinos, but also horse racing and video gaming. OLG was directed to report back to Cabinet by late 2011.

OLG’s Strategic Business Review (“SBR”)

[43] As already noted the Terms of Reference for the SBR were released on January 11, 2011. On January 31, 2011 the Chief of WON wrote to OLG indicating that WON was looking forward to “participating with OLG” in the review, but stating that it was WON’s position that there were a number of reasons why its proposal for an expanded casino “should proceed now.”

[44] As part of its review OLG met with a large number of stakeholders, including WON. At no point during the SBR did WON raise issues relating to asserted Aboriginal or treaty rights.

[45] As a result of its review OLG developed its Modernization Plan. This plan involved privatizing day-to-day operations of casinos, divesting the capital investment and ownership of gaming assets to private operators, cancelling the slots at the racetrack programme, approving the development of up to five new casinos in Ontario, and expanding lottery product distribution. This plan was intended to transform the delivery of gaming to allow OLG to generate greater efficiencies, incentivize capital investment, and reduce costs. To implement the plan, a competitive procurement process was to be used to select the operators who would run the existing and new gaming sites.

Cabinet Approves Modernization

[46] The Minister presented the Modernization Plan to Cabinet on February 8, 2012. The Cabinet Submission Decision Document that accompanied that presentation contains specific references to First Nations, some of which are set out below:

1. The document recognized the fact that it had created ways for First Nations to be involved in commercial gaming and that it had done so “to provide First Nations with a long-term, stable support to improve the quality of life in First Nations communities” (at p. 9).

2. The document states the “First Nations primary involvement is through the Ontario First Nations Limited Partnership (OFNLP), which includes 132 Ontario First Nation communities (only Rama First Nation (RFN) is not part of OFNLP) as part of the limited partnership. OFNLP receives 1.7% of consolidated gross OLG revenues annually through the GRSFA [Gaming Revenue Sharing and Financial Agreement]” (at p. 9).

3. The document acknowledged that some First Nations communities, including WON, viewed gaming “as an effective way of creating jobs as well as boosting their community’s economy (in addition to the payments they receive through the GRSFA). The First Nations communities of Six Nations, Wauzhushk Onigum Nation (WON), Ginoogaming First Nation, Mississauga’s of Scugog Island, and Mississauga #8 have presented business cases or requests for new or expanded gaming sites for their respective communities. Under these submissions, the majority or all of the funding is to come from OLG. These requests are generally not consistent with the government’s approach which is to provide a revenue share from gaming revenues as set out under the GRSFA to all First Nations communities. As well, these requests do not support OLG’s current proposed approach of moving toward alternative financing and procurement (AFP) models for the development of new capital assets” (at p. 10).

4. The document reported specifically on the fact that WON would have concern about Modernization as it does not contemplate a gaming site consistent with their 2008 redevelopment business case. The Minister’s proposed strategy for dealing with this concern was to invite all First Nations, including WON, “to participate in the strategic procurement process, either as sole proponents or with private sector partners.” The other aspect of the Minister’s proposed strategy was to emphasize that WON, as a member of the GRSFA, would see gradual increases in its payments as the GRSFA is based on OLG’s gross revenues, which were anticipated to increase with Modernization (at p. 61).

[47] On February 8, 2012, the Cabinet decided to proceed with Modernization. The relevant portions of the Cabinet Minute relating to that decision read as follows:

The Ontario Lottery and Gaming Corporation (OLG) work with the Minister of Finance (MOF) to increase net profit to the Province by optimizing land-based gaming in Ontario through the following:

A. Align the number, scale and location of gaming sites in Ontario by expanding from 27 up to 29 gaming sites, including:

iii) Introducing up to 5 new gaming sites in under-serviced Communities (i.e. Greater Toronto Area, Collingwood or Bracebridge, Cornwall, Kenora, North Bay);

B. Shift day-to-day operations of gaming sites currently operated by OLG to private sector operators to increase operational efficiencies by:

i) Establishing gaming zones designed to clearly set out gaming sites within the zone to minimize cannibalization amongst these zones;

ii) Undertaking competitive Requests for Proposals (RFPs) process, overseen by a fairness monitor, to procure suitable private sector operators to operate some or all gaming sites within gaming zones;

iii) Work, in consultation with the Ministry of Aboriginal Affairs, to ensure that the procurement process supports participation by First Nation business and communities eligible to bid either as a sole proponent or in partnership with a third party. In addition, as part of the procurement process, develop criteria and assign value in the assessment of non-First Nations bids that commit to generating new economic and employment benefits to First Nations as part of these proposals.

The Minister Communicates the Cabinet’s Decision to OLG

[48] On April 27, 2012, the Minister wrote to OLG indicating that Cabinet had decided that OLG was to proceed with reconfiguring the number and location of gaming sites and with private sector engagement. The Minister also indicated that Cabinet had a number of expectations that included the following:

1. As OLG developed its RFIs, RFPs, and final operating contracts, it was to work through the Minister to have the Ministry of the Attorney General “review these documents to ensure that conduct and management requirements are satisfied”;

2. With respect to First Nations, “OLG is to ensure that its procurement processes support participation by First Nation businesses and communities, including the development of criteria and assigning of value in the assessment of non-First Nations bids that commit to generating net new economic and employment benefits to First Nations as part of the proposals”; and

3. OLG was advised that the Minister of Finance had “committed to Cabinet that I would inform them of the gaming zones and proposed gaming site locations within each zone.” Therefore, OLG was to provide this information as soon as it was available and prior to proceeding with the RFP process.

The Procurement Process

[49] From the beginning of the procurement process, OLG engaged a consultant to act as a “fairness monitor” to ensure that the process was carried out “in a fair, open and transparent manner.” In addition, it engaged the Honourable Coulter Osborne to act as an independent fairness advisor. His role was to determine if there were any conflicts of interest during the procurement process.

Request for Information (“RFI”)

[50] The RFI was forwarded to interested stakeholders, including WON. Its purpose was to “obtain market information”. The responses from this request would play a key role in determining the geographic limits for the gaming zones and bundles.

[51] The RFI contained a draft of proposed gaming zones. One of those zones was the area around Kenora (in accordance with the Cabinet Directive) and it was defined to include the City of Kenora and a portion of the WON reserve lands. In the RFI, the gaming zones were grouped together on a preliminary basis into four geographic regions. The proposed Kenora zone was one of five proposed zones in the Northern Ontario region. Respondents to the RFI had an opportunity to comment both on the regions and the proposed gaming zones, including the boundaries of those zones.

[52] On June 20, 2012, WON held a meeting that was called by the people who were leading its gaming initiative, one of whom was an experienced gaming consultant. At that meeting it was confirmed that WON could not proceed through the procurement process on its own; it was too expensive and therefore WON needed to find a gaming lawyer and a partner to help with financing.

[53] OLG received over 100 written responses to the RFI. On July 4, 2012, WON submitted its written response to the RFI. It indicated its interest in submitting a proposal for the right to operate gaming in the Kenora zone. In addition it proposed that it would “be important to provide exclusive gaming rights for a surrounding market zone of 200 km.” WON stated that Kenora should remain a standalone site and expressed the opinion that bundling this zone with others would “diminish its ability to develop a unique offering suited to the area that will attract patrons from the surrounding region.”

[54] On the same date, a response to the RFI was also submitted by Sovereign Gaming Group (“Sovereign”) [later part of Leaf]. In their submission, Sovereign supported the clustering of gaming zones in geographic regions.

[55] On August 2, 2012, WON entered into a Memorandum of Understanding (“MOU”) with Sovereign. The purpose of the MOU was to “confirm the intention of the Parties to form a partnership … for purposes of financing, developing and owning a new gaming facility licensed by the OLG in or near the City of Kenora”. Both agreed to work exclusively with each other. Under the MOU, WON was to receive “a 20% equity interest in the Project”. The MOU specifically provided that it created no legal rights or obligations.

[56] On August 10, 2012, WON met with OLG. It indicated that it would be partnering with Sovereign and Warner Gaming and that they were interested in bidding on the North bundle. It also stated that Timmins should be considered as a satellite site to Kenora and that they may potentially bid on other bundles. When asked specifically about bundling, WON stated that its position had changed since submitting its written response to the RFI.

[57] At the meeting, OLG asked WON if it thought the process was fair, and WON’s consultant replied by stating that OLG should have met with all RFI respondents, including Sovereign. He also advised that if WON had not partnered, bundling would have excluded WON from the process, but WON “was satisfied to date with the process.”

[58] On September 13, 2012, OLG met with Sovereign. At that meeting Sovereign indicated its support for bundling and its intention to bid on both the North and East bundles.

[59] During the RFI process there were suggestions by respondents to add, expand, eliminate or otherwise modify the boundaries of many Gaming Zones. There was one suggestion to eliminate the Kenora Zone (which OLG rejected) and two suggestions from two other First Nations (Couchiching First Nation and Wabigoon Lake Ojibway Nation) to expand the Kenora Zone to include the cities near their reserves. OLG also rejected these suggestions. Each suggestion was analyzed as to whether it would produce a likely decrease or increase in revenue.

[60] During the RFI process 50% of the respondents expressed support for some form of bundling, 17% expressed support for individual zones, and 33% did not express an opinion on bundling.

[61] OLG worked with a consultant on the creation of the Bundles. Its consultant advised that there was a strong interest in the North Bundle, which could decrease if the Bundle was separated or split. The consultant also advised that bundling would result in more and higher bids, which would ultimately produce more revenue for OLG.

[62] On August 22, 2012, OLG concluded there ought to be eight bundles, one of which was the North Bundle. On August 31, 2012 OLG met with the Minister to provide an update relating to bundling. Further meetings were also held with the Ministry to keep them informed regarding both bundling and the Gaming Zones.

Request for Pre-Qualification (“RFPQ”)

[63] On November 1, 2012 the OLG Board approved a resolution approving management’s approach to the issuance of the RFPQ, subject to reviews by the Minister and the Attorney General (which were done). It is at this meeting that the specific 29 Gaming Zones (including the Kenora Zone) and the Bundles were approved.

[64] The RFPQ was sent to the Ministry of Aboriginal Affairs (“MAA”) for comment. On November 15, 2012 the MAA provided its feedback in writing. The MAA made no comment about the proposed Gaming Zones or about Bundling. It did provide two suggestions regarding the RFPQ:

1. The draft RFPQ set out evaluation criteria that were divided into three main sections: the applicant’s experience in gaming; property development and financing. First Nation experience fell under the applicant’s experience in gaming. The MAA suggested that this should be a stand-alone section so that there would be four sections: Gaming Experience, Aboriginal Experience, Property Development Experience, and Financing Experience; and

2. Include bonus points for those applicants who were First Nation businesses or joint ventures involving a First Nation.

[65] In the final version of the RFPQ, OLG included First Nations Experience as a subcategory of Gaming Experience. It was not its own category. According to WON (and this was not disputed by the Respondents), “First Nations Experience” was worth 1.67% of the overall RFPQ scoring.

[66] No bonus points were included for First Nations participation. According to OLG, this was considered to be inconsistent with an open and fair procurement process under government procurement guidelines.

[67] On November 30, 2012, the RFPQ for the North Bundle was issued and the 29 Gaming Zones, including the Kenora Zone, as well as the Gaming Bundles, were publicly announced by way of a press release.

[68] The deadline to respond to the RFPQ was March 14, 2013. Two of the parties who responded to the RFPQ were Gateway and Leaf. Leaf was a consortium created by Sovereign and Warner Gaming, with financing from Fengate Capital. The person who had been WON’s consultant during the RFI consultations with OLG was the lead representative for Leaf.

[69] In response to the RFPQ, Leaf stated that it had a “signed agreement with [WON] granting them a 20% interest in the Kenora casino.”

[70] Both Leaf and Gateway were accepted as qualified proponents in the RFPQ.

[71] On August 26, 2013, at a WON General Band Meeting, WON confirmed that it had partnered with Leaf because “it did not have the gaming expertise necessary and the financial capacity to build and operate all of the properties.”

[72] On January 31, 2014, the newly elected WON Chief wrote to OLG stating that he “wanted to take this opportunity to personally confirm to you that our Nation continues to support OLG in their initiative and look forward to continuing our participation in the process of selecting operators for Gaming Bundle #3 North.”

[73] On September 10, 2015, as a result of a request from WON, OLG met with WON. At that meeting, WON suggested that OLG de-link the Kenora Zone from the rest of the North Bundle and begin talks with WON about converting its existing facility into the kind of casino that OLG had planned for the region. At that meeting WON was told that the bundles were created to maximize commercial interest, create geographical synergies and to simplify both the procurement process and OLG’s administration of service providers.

[74] On October 19, 2015, OLG wrote to WON and confirmed that OLG would “be moving forward with the North Bundle remaining fully intact for reasons we first raised in our meeting.”

The Request for Proposals (“RFP”)

[75] On November 23, 2015, OLG issued the North Bundle RFP. Gateway and Leaf both submitted a response to the North Bundle RFP. WON partnered with Leaf through the RFP process.

[76] Leaf submitted its response in September of 2016. In its response Leaf made it clear that it did not intend to open a casino on the WON reserve. Its proposal made specific reference to the “Golden Eagle Bingo Facility” and gave reasons why that site was not selected. These reasons included the fact that the current facility required substantial renovation to facilitate a casino; WON wanted its bingo operation to continue, which meant that the casino could only comprise part of the current facility; the facility was located far away from the majority of local residents and was not on a tourist route; the site was not visible from any main arteries and the site was located “many kilometers from local city utilities and services.”

[77] The Leaf proposal referred to the MOU it had with WON and stated that Leaf planned to update the MOU and reach a long-term arrangement between Leaf and WON. The proposal went on to state:

In updating this arrangement, Leaf II will not be granting WON any ownership or governance rights in or over Leaf II or any casino. As of this writing, discussions between relevant parties are concluding and an agreement is being formalized. Under the terms of the MOU, WON has worked exclusively with the Leaf Team and fully supports the Leaf Team’s proposal to OLG for Gaming Bundle 3 (North).

[78] Both Leaf and Gateway passed the business submission stage of the RFP. During the financial submissions stage, the submissions were compared to the status quo (which assumes the present value of future cash flows assuming OLG continues to operate the facilities within the North Bundle). Leaf’s bid was 99.6% and Gateway’s was 141.9%.

[79] On November 24, 2016, the OLG Board of Directors approved Gateway as the winning proponent of the North Bundle and on December 13, 2016 this decision was publicly announced.

OLG-Gateway Agreements

[80] OLG and Gateway entered into a Transition and Asset Purchase Agreement on December 12, 2016 (“TAPA”) and a Casino Operating and Services Agreement on May 30, 2017 (“COSA”).

Time Period Post the Gateway Agreements

[81] Under the COSA, OLG delegated the discretion to choose the location of the Kenora casino to Gateway. However, under s. 2(2)4 of O. Reg. 81/12, OLG cannot authorize Gateway to establish a casino in Kenora at a particular site unless OLG’s business case to do so (based on the site proposed by Gateway) has been approved by the Minister of Finance. To date no such business case has been submitted to the Minister.

[82] As the site selection was not finalized, WON engaged in conversations with Gateway to see whether or not the casino could be placed on its reserve and whether WON would share in any of the benefits. In a letter dated February 6, 2017, WON wrote to Gateway expressing delight that Gateway was open to “meaningful dialogue” and considering WON reserve lands as a candidate for the casino. In the same letter WON stated: “[w]e were quite struck by the professionalism of your presentation, your company and your management team. Frankly, it is very clear why you won this opportunity, and we congratulate you.”

[83] On May 24, 2017, WON wrote to Gateway to propose lease arrangements and to discuss possible revenue sharing and development opportunities. On July 4, 2017, WON wrote that they were “encouraged to see the follow-up to our land lease proposal for the Kenora Casino” but wanted to engage in meaningful discussions. In December of 2017, WON proposed a Memorandum of Understanding with Gateway.

[84] On May 14, 2018, WON’s legal counsel sent a letter to OLG, the Minister, and Gateway threatening to commence a civil action. The letter demanded a response by June 20, 2018. OLG and the Minister asked for an indulgence to put together a joint position, and cautioned that because of the recent provincial election it may take some time.

[85] On July 9, 2018, OLG legal counsel encouraged dialogue between WON and OLG and ongoing discussions with Gateway. On July 10, 2018 Gateway agreed to place development on hold until July 23, 2018 in recognition of WON’s ongoing discussions with OLG and the Minister.

[86] In September 2018, WON commenced this proceeding for judicial review.

ISSUES

[87] WON seeks to set aside the Decision to Tender and the Decision to Bundle on a number of grounds. The issues it raises are the following:

1. Are the Decisions ultra vires the grant of authority, as set out in the Cabinet Directive?

2. Were the Decisions an abuse of process and made for an improper purpose or in bad faith?

3. Was there a denial of WON’s right to procedural fairness?

4. Did OLG improperly fetter its discretion?

5. Did the Respondents breach the duty to consult and accommodate?

6. Were the Decisions inconsistent with the values inherent in s. 35 of the Constitution Act, 1982?

7. Were the Decisions unreasonable?

[88] The Respondents raise a further issue, which must be dealt with before the issues raised by WON. Specifically, they argue that the Decisions are not justiciable and not subject to judicial review because they are policy and commercial decisions of the Cabinet and its agent OLG.

[89] In addition, the Respondents have brought a motion to dismiss the application for judicial review for delay.

ARE THE DECISIONS SUBJECT TO JUDICIAL REVIEW?

The Decisions Under Review

[90] In order to determine this issue, it is necessary to clarify the decisions that are under review, as there has been some confusion and some apparent change in the focus of WON’s submissions over the course of this proceeding.

[91] In the Amended Notice of Application for Judicial Review, WON challenges two named decisions made in 2012. The first is the decision in early 2012 to permit the establishment of a gaming zone in Kenora with the potential to develop a new gaming site by a competitive procurement process (the “Decision to Tender”). The second is the decision in November 2012 to group the Kenora Gaming Zone with four other gaming zones into the North Gaming Bundle (the “Decision to Bundle”) (collectively, the “Decisions”).

[92] While WON also seeks to set aside the contracts between OLG and Gateway, it does not directly challenge the selection of Gateway nor the fairness of the tendering process that led to those contracts. Rather, WON states that the agreements should be set aside as the natural flow from the other two flawed decisions. In other words, WON has not challenged the design of the RFP in the Amended Notice of Application. It is too late to do so now. Accordingly, the focus of the following discussion is the Decisions described above.

The Decision to Tender is Not Justiciable

[93] WON’s counsel asserted in oral argument that WON did not seek to review the Cabinet decision, stating that it is the decisions of the OLG and the Minister that it seeks to have set aside. WON states that these decisions are operational in nature, and therefore subject to review, citing Tesla Motors Canada ULC v. Ontario (Ministry of Transportation), 2018 ONSC 5062, 144 O.R. (3d) 701 (“Tesla”).

[94] We do not agree with WON’s submission that the Decision to Tender was a decision of OLG and/or the Minister. The Decision to Tender was a Cabinet decision, as seen in the Cabinet Directive from February 2012. In that six page document, the Cabinet directed OLG to work with the Ministry of Finance “to increase net profit to the Province by optimizing land-based gaming in Ontario” through specified ways. The Directive authorized the establishment of up to 29 gaming zones, closed slot facilities at three raceways, relocated some slot facilities, and permitted the development of up to five new gaming sites, including one in Kenora.

[95] More significantly, Cabinet determined that OLG should shift day-to-day operations of gaming sites currently operated by OLG to private sector operators by establishing gaming zones and undertaking a competitive procurement process that employed RFPs. It also determined that there should be a shift from OLG to private sector funded development and ownership of assets. Again, selling of OLG capital assets was to be through the competitive RFP process. Accordingly, the application for judicial review seeking to quash the Decision to Tender is an implicit challenge to the Cabinet policy decision that directed Modernization.

[96] Courts do not have the power to judicially review policy decisions of Cabinet, absent the exceptional situation where there is an abuse of power or bad faith, as discussed below. In particular, Cabinet’s policy decisions on funding have been held not to be justiciable: see for example, Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation) (1991), 1991 7099 (ON SC), 2 O.R. (3d) 716, 78 D.L.R. (4th) 289 (Div. Ct.) (“Hamilton-Wentworth”) at para. 42; Bowman. v. Her Majesty the Queen, 2019 ONSC 1064 (Div. Ct.) at para. 40; Children’s Aid Society of Huron-Perth v. Ontario (Ministry of Children and Youth Services), 2012 ONSC 5388 (Div. Ct.) at para. 52.

[97] In Black v. Canada (Prime Minister) (2001), 2001 8537 (ON CA), 54 O.R. (3d) 215, 199 D.L.R. (4th) 228, the Court of Appeal discussed justiciability in the context of the exercise of the royal prerogative. At para. 50, the Court stated,

The notion of justiciability is concerned with the appropriateness of courts deciding a particular issue, or instead deferring to other decision-making institutions like Parliament. See Canada (Auditor General) v. Canada (Minister of Energy, Mines & Resources), 1989 73 (SCC), [1989] 2 S.C.R. 49, 61 D.L.R. (4th) 604; Thorne's Hardware Ltd. v. R., 1983 20 (SCC), [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577. Only those exercises of the prerogative that are justiciable are reviewable. The court must decide “whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch”: Reference re Canada Assistance Plan (British Columbia), 1991 74 (SCC), [1991] 2 S.C.R. 525 at p. 545, 58 B.C.L.R. (2d) 1.

[98] In the Decision to Tender, the Cabinet made a purely political decision about future gaming policy in Ontario, based on its goal of maximizing financial return to the Province and modernizing OLG’s operations. Cabinet was not exercising a statutory authority when it made this decision. It was adopting a policy of general application throughout the province. This is not a case where the decision altered any existing rights of WON with respect to gaming. Accordingly, the Decision to Tender is not justiciable.

[99] In addition, Cabinet made a policy decision about support for First Nations participation in the procurement process. It directed OLG to support participation by First Nations either as sole proponents or in partnership with third parties. While WON takes issue with the design of the RFP because the RFP is said to have actively discouraged participation by First Nations as solo proponents, the Cabinet Directive clearly accepts First Nations partnerships with third parties as a way to support their participation in procurement. Again, that Cabinet policy decision is not justiciable.

The Decision to Bundle

[100] The Decision to establish a Kenora gaming site and to include it in the North Gaming Bundle was made by OLG in November 2012 in the course of carrying out the policy Directive of Cabinet to conduct a competitive procurement process.

[101] As noted earlier in these reasons, the OLG did not have the Cabinet Directive at the time of this decision, since the document was confidential. However, the steps that Cabinet wished to have OLG take to implement Modernization were communicated to OLG by the Minister in a letter dated April 27, 2012. That letter required OLG to report back to the Minister with respect to the gaming zones, who in turn would report to Cabinet.

The Availability of Relief Under the Judicial Review Procedure Act

[102] WON seeks relief in the nature of certiorari, as well as declaratory relief. To obtain relief in the nature of a declaration, WON must show that the impugned decision was the exercise of a statutory power of decision, as defined in s. 1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”). A “statutory power of decision” is a power or right conferred by or under a statute to make a decision deciding or prescribing the legal rights, powers, privileges, immunities, duties or liabilities of any person or party or determining eligibility for a benefit or licence.

[103] To obtain relief in the nature of certiorari, WON must demonstrate that the decision was the result of the exercise of a public power that is amenable to judicial review because of its public character.

[104] Even if a decision maker is not exercising a statutory power of decision, certiorari may be available if the decision maker is exercising a public power and making a decision of a public character. The Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750 recently discussed the availability of judicial review at para. 14:

Not all decisions are amenable to judicial review under a superior court’s supervisory jurisdiction. Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character. Even public bodies make some decisions that are private in nature — such as renting premises and hiring staff — and such decisions are not subject to judicial review: Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 52. In making these contractual decisions, the public body is not exercising “a power central to the administrative mandate given to it by Parliament”, but is rather exercising a private power (ibid.). Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.

The Decision to Bundle is Not Subject to Judicial Review

[105] WON incorrectly argues that the Decision to Bundle is subject to review by way of certiorari and declaratory relief is available because OLG was exercising a statutory power of decision pursuant to the Cabinet Directive. We note that the Directive is not written in the form of a statute, nor is it capable of being interpreted as one. Rather, the Directive is an instruction to the Minister, which was then conveyed to OLG, as to how Cabinet’s policy decisions with respect to gaming and revenue maximization were to be implemented. Given that the Directive is not a statute or regulation that confers authority, nor is it a delegation of jurisdictional powers, WON’s argument based on ultra vires is without merit.

[106] Moreover, the fact that OLG is a Crown corporation created by statute does not convert this Decision to Bundle into the exercise of a statutory power of decision. A statutory power of decision exists only where there is a specific power or right to make the decision in issue: Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481 at para. 26; Paine v. University of Toronto (1982), 1981 1921 (ON CA), 34 O.R. (2d) 770, 131 D.L.R. (3d) 325 (C.A.) at para. 7. Here, as in Hamilton-Wentworth, above, there was no provision in a statute or regulation that governed the decisions made by OLG with respect to bundling and the design and implementation of the procurement process. Moreover, this is not a situation like the one in Tesla, above, where the Court found that there was an exercise of discretion under a statute that was made for an improper purpose (at paras. 61 and 64).

[107] In addition, the decision to establish a Kenora Gaming Zone and to bundle the Kenora zone into the North Bundle was commercial in nature, made in the course of designing and carrying out the pre-qualification stage of the competitive procurement process. There were no statutory provisions governing that process.

[108] To date, a public tender process has not been subject to public law remedies in Ontario: see Bot Construction Limited v. Ontario (Minister of Transportation), 2009 ONCA 879 at para. 19; 2169205 Ontario Inc. v. Ontario (Liquor Control Board), 2011 ONSC 1878 (Div. Ct.) at para. 24; and Grascan Construction Ltd. v. Metrolinx, 2017 ONSC 6424 (Div. Ct.) at paras. 91 and 104.

[109] OLG owed no public law or private law duties to WON at the RFI or RFPQ stages. In particular, the design of such a process and the pre-qualification stage do not affect any rights or obligations of WON. WON was one of many stakeholders, and it had input into the various stages of the design process. Moreover, it had teamed up with Leaf during the RFI stage. Therefore, WON had no rights, interests or legitimate expectations affected that could justify a remedy of certiorari, nor did OLG owe a duty of procedural fairness to WON (as discussed below).

[110] The Cabinet Directive specifies that OLG is to report to the Minister of Finance, who in turn reports to Cabinet, with respect to the selection of gaming zones and the implementation of the policy. This is further evidence that the decision to bundle by OLG was one component of a broad policy implementation of a political nature.

[111] In sum, this is not an appropriate case for the Court to intervene on judicial review. The Decision to Bundle is a commercial decision taken in the course of designing a procurement process affecting gaming throughout the province. It is also a policy decision, subject to political oversight. Given the nature of the Decision, it is not subject to judicial review.

IMPROPER PURPOSE AND BAD FAITH

[112] WON alleges that the Minister and OLG were motivated by an improper purpose and exercised their discretion in bad faith when they implemented Modernization and made the impugned decisions. According to WON, the improper purpose was the Respondents’ desire to contain First Nations rights-based gaming and on-reserve casinos in Ontario. OLG was concerned that First Nation-owned casinos were diverting revenue from provincial coffers and that gaming on reserves was hard to regulate. To support this allegation WON relies on a document entitled “First Nations Stakeholder Relations, Draft for Discussion, December 9, 2011”. According to Tanya Watkins, the Minister’s Acting Director of Gaming Policy Branch, this document consists of a slide deck that was prepared by OLG and circulated by it to various Ministries (including the MAA) for comment. The document was never submitted to Cabinet.

[113] In the document under a heading called “Provincial Interests” the following appears:

Specific to gaming: Contain gaming expansion on-reserve

• 207(1)(b) activities have so far proven difficult to regulate on reserve

• Cannibalization of provincial revenue from gaming.

[114] WON submits that further to this improper purpose, the Minister and OLG attempted to secure Cabinet’s Directive to proceed with Modernization without any mention of, or provision for, First Nations interests. When MAA raised concerns about this approach, the Minister’s response was that First Nations could simply partner with large commercial interests. Ultimately, Cabinet accepted MAA’s concern that First Nation interests should be explicitly provided for, and that First Nations participation should be supported in the procurement process.

[115] According to the Respondents, the Minister and OLG did take First Nations interest into consideration. In particular, OLG factored WON’s long-standing interest in gaming by deciding that the Kenora Gaming Zone should include the WON reserve. The fact that the Minister and OLG did not incorporate every recommendation from MAA (as of 2016, the Ministry of Indigenous Affairs) is not evidence that its actions were taken in bad faith or for an improper purpose. Further, the primary aspect of the procurement process that is being challenged by WON is the Decision to Bundle, a decision that MAA did not comment upon.

[116] Decisions that fall within the policy making functions of government are not subject to judicial review in the absence of bad faith or improper purpose. In Tesla at para. 53, the Court accurately stated that to constitute an improper purpose the purpose must be one that “is outside of the purposes for which the statute or regulation created the discretionary power that is purportedly exercised.” In that case, the Court decided that the decision to exclude Tesla and its customers from a two month extension of government subsidies for electric car buyers by limiting the transition program to only franchised dealerships was unrelated to the purposes of the statutory or regulatory discretion being exercised.

[117] In this case, put at its highest, WON’s argument is that the Respondents exercised their discretion in a way that sacrificed the ability of First Nations to participate in gaming in the interests of maximizing revenue from gaming for the Province. Maximizing revenue is not a purpose that is outside the purpose of the Cabinet Directive. In fact, it is fair to say that from the beginning Cabinet made it clear that they wished OLG to work with the Minister “to increase net provincial revenue by modernizing commercial and charitable gaming in the province.” Thus, we find that WON has not met the threshold necessary to establish an improper purpose.

[118] In Enterprises Sibeca inc. v. Frelighsburg (Municipalité), 2004 SCC 61, [2004] 3 S.C.R. 304 at para. 26, the Supreme Court described bad faith as “acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith”.

[119] In this case there are no acts that are “so markedly inconsistent with the relevant legislative context” that the only reasonable conclusion that this Court can draw is that they were performed in bad faith. Relevant to this is the Respondents’ argument that increasing net provincial revenues from gaming would benefit First Nations as a group, as under the GRSFA, First Nations are entitled to a percentage of the revenue that the Province earns from gaming. With Modernization, those revenues and the revenues paid to First Nations were expected to increase. This is not bad faith.

WAS THERE A DENIAL OF PROCEDURAL FAIRNESS?

[120] If we are wrong on the issue of justiciability, and the Decision to Bundle is subject to judicial review, there was no denial of procedural fairness.

The Existence of a Duty of Procedural Fairness

[121] At common law, a decision-maker has a duty of procedural fairness if he or she makes a decision that is not of a legislative nature, and that decision affects the rights, privileges or interests of an individual: Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504 at para. 38.

[122] The right to procedural fairness is a participatory right – that is, it grants rights of notice and participation in a proceeding, with the scope of the duty varying in accordance with the nature of the proceeding and the interests affected. The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 emphasized the contextual nature of the inquiry into the scope of the duty of procedural fairness (at para. 22). The Court set out five non-exhaustive factors to be considered in determining whether there is a duty of fairness and its scope (at paras. 23-28):

• The nature of the decision,

• The nature of the statutory scheme and the terms of the statute under which the decision-maker operates,

• The importance of the decision to the individual or individuals affected by it,

• The legitimate expectations of the individual affected by the decision, and

• Respect for the procedural choices made by the decision-maker itself.

There Was No Denial of Procedural Fairness

[123] In the present case, WON had no right affected by the challenged decisions, although it is certainly interested in the establishment of a gaming site in Kenora and the process used to find an operator for it. The decisions made by OLG are policy and commercial decisions that are not subject to statutory controls, in contrast to Mavi.

[124] However, assuming, without deciding, that there was a duty of procedural fairness owed in the present circumstances, Mavi shows that the level of procedural fairness owed is low, given the nature of the decisions and the lack of a statutory framework governing those decisions. Mavi dealt with governmental efforts to collect debts from sponsors who had given undertakings to support immigrants to Canada. The Supreme Court held that the government had a duty to give notice to the sponsor before pursuing collection of the debt, allow the sponsor to make written submissions, consider the submissions, and notify the sponsor of the decision (without giving reasons) (at para. 45).

[125] In the present case, WON was accorded procedural fairness. It was consulted throughout by OLG – during the Strategic Business Review and, following the Cabinet Directive, during the RFI stage that preceded the decision in November 2012. The documentary evidence demonstrates that WON’s comments were given consideration. WON was also consulted subsequently during the period of the RFPQ stage, when WON was partnered with Leaf.

[126] OLG complied with the Cabinet instructions with respect to First Nations participation. Those directions, as set out in the April 2012 letter from the Minister, required OLG to ensure that the procurement process “supports the participation by First Nations businesses and communities eligible to bid either as a solo proponent or in partnership with a third party.” WON was able to participate in partnership with Leaf in the procurement process. It is clear from the evidence that it did not have the capacity to bid to operate a casino in Kenora without a partner. The Kenora zone was also established to include lands located within the WON reserve.

[127] WON has invoked the doctrine of legitimate expectations in this proceeding. In particular, WON submits that it had a legitimate expectation that the Minister would negotiate with WON directly to turn Golden Eagle into a casino. In making this submission it relies on the history of its dealings with Ontario during the period from 2004 to 2012. These dealings are summarized in the factual portion of these reasons. According to WON, during this period WON was encouraged to believe that Ontario was prepared to accept its proposal to transform Golden Eagle into a casino and, based on that encouragement, WON expended significant financial resources that it could ill afford.

[128] However, the doctrine of legitimate expectations does not confer substantive rights on a party. At most, it may confer a right to procedural protections because of a representation made by a government actor with respect to procedures to be followed. As the Supreme Court of Canada explained in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at para. 97:

An important limit on the doctrine of legitimate expectations is that it cannot give rise to substantive rights (Baker, at para. 26; Reference re Canada Assistance Plan (B.C.), 1991 74 (SCC), [1991] 2 S.C.R. 525, at p. 557). In other words, “[w]here the conditions for its application are satisfied, the Court may [only] grant appropriate procedural remedies to respond to the ‘legitimate’ expectation” (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131 …

[129] Further, in order to have an enforceable procedural right under the doctrine, the representation relied upon must be “clear, unambiguous and unqualified” (Mavi, at para. 67).

[130] WON has established no basis to claim a legitimate expectation of a particular process that would involve a direct negotiation with WON to establish a casino. In fact, the evidence is to the contrary. Specifically, Ontario advised WON in 2008 that it was involved in gaming policy reviews and any proposal it had to open a casino would have to await the completion of those reviews. In December 2010, at a meeting with OLG, WON was told that OLG was engaging in a consultation process to hear what stakeholders thought about the future of gaming in Ontario. WON was told that it would be considered a stakeholder and consulted, which it was. On April 20, 2012, OLG wrote to WON and told it that the procurement process established by Modernization was the “only route through which OLG will accept any proposals, including yours.”

[131] Accordingly, we would not give effect to this ground of judicial review.

FETTERING DISCRETION/ CONSIDERATION OF IRRELEVANT FACTORS

[132] According to WON, OLG fettered its discretion when it did not follow MAA’s suggestion that it include bonus points for First Nations participation in the RFPQ. OLG’s expressed reason for not doing so was its view that this is inconsistent with an open and fair procurement process under government procurement guidelines. According to WON, fairness is concerned with substantive equality, not formal equality. In recognition of this, many governments, including Ontario, have adopted procurement guidelines that do include bonus points to encourage the participation of marginalized groups.

[133] Again, there are a number of problems with this submission. First, the RFPQ is not one of the decisions that is the subject of WON’s application.

[134] WON submits that the issuance of the RFPQ was part of the process that led to the decision to enter into the Gateway Agreements, a decision that it is challenging. However, as we earlier found, this is not the way its Amended Notice of Application was framed.

[135] Even it had been framed that way, we do not accept that the doctrine – which forbids a decision maker from fettering its discretion – would apply to OLG’s decision not to award bonus points to bids that included First Nations participation.

[136] As put in Donald J.M. Brown and Hon. John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters, 2017) (“Judicial Review”) at s. 12:4410:

An allegation that a tribunal has ‘fettered its judgment’ is similar to a charge of ‘prejudgment’ in that the complaint is that the decision-maker has decided the matter without regard to the particular circumstances, and accordingly it is reviewable for correctness. In particular, an agency may not fetter the exercise of its statutory discretion, or its duty to interpret and apply the provisions of its enabling statute, by mechanically applying a rule that it had previously formulated, other than where it is properly enacted pursuant to a statutory power to make subordinate legislation.

[137] In this case there is no suggestion that OLG or the Minister prejudged its decision about who to enter into a contract with or that they simply mechanically applied a previously formulated rule in order to make that decision. They clearly considered the individual circumstances of the proponents who responded to the RFPQ.

[138] WON’s complaint is, in essence, that OLG had too narrow a view of what it meant to be fair in the procurement context. This is not a complaint about fettering of discretion. If there was a justiciable decision at issue, it might go to the reasonableness of that decision.

[139] WON also argued that OLG’s view of the procurement guidelines caused it to take into account an irrelevant consideration. Again, if there was a justiciable decision at issue, this argument might call into the question the reasonableness of that decision.

[140] In view of the fact that there is no justiciable decision at issue, there is no basis for this court to engage in an exercise that assesses the reasonableness of those decisions.

DID THE MINISTER AND/OR OLG BREACH THE DUTY TO CONSULT AND ACCOMMODATE?

The Duty to Consult

[141] As put by the Supreme Court of Canada in Haida Nation v. British Columbia, 2004 SCC 73, [2004] 3 S.C.R. 511 (“Haida Nation”) at para. 20:

Section 35 represents a promise of rights recognition, and “[i]t is always assumed that the Crown intends to fulfil its promises.” This promise is recognized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s.35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate. [Citations omitted.]

[142] The duty to consult arises when the Crown has knowledge (real or constructive) of a credible but unproven claim to an Aboriginal right and contemplates conduct that might adversely affect that right (Haida Nation, at paras. 35 and 37).

[143] In Haida Nation, the Court also deals with the practical difficulty of how the Crown can know that a right exists before a particular claim is resolved. At para. 36, the Court states:

This leaves the practical argument. It is said that before claims are resolved, the Crown cannot know that the rights exist, and hence can have no duty to consult or accommodate. This difficulty should not be denied or minimized. As I stated (dissenting) in Marshall, supra, at para. 112, one cannot “meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right and its modern scope.” However, it will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and accommodate, short of final judicial determination or settlement. To facilitate this determination, claimants should outline their claims with clarity, focussing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements.

[144] In Ktunaxa Nation v. British Columbia (Forest, Lands and Natural Resources Operations), 2017 SCC 54, [2017] 2 S.C.R. 386 (“Ktunaxa”) at para. 79, the Supreme Court reinforced that the obligation of an Indigenous group who is invoking the duty to consult to set out its claims clearly and early.

Section 35 guarantees a process, not a particular result. The Aboriginal group is called on to facilitate the process of consultation and accommodation by setting out its claims clearly and as early as possible. There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible. The ultimate obligation is that the Crown act honourably.

[145] The content or scope of the duty will vary with the circumstances. A “dubious” claim to an Aboriginal right “may attract a mere duty of notice while a stronger claim may attract more stringent duties” (Haida Nation, at para. 37). In general the scope of the duty “is proportional to a preliminary assessment of the strength of the case supporting the right or title and to the seriousness of the potentially adverse effect upon the right or title claimed” (Haida Nation, at para. 39).

The Position of the Parties

[146] WON’s position is that the duty to consult was triggered. By virtue of the 1993 WON Agreement, OLG and the Minister had actual knowledge that WON’s position was that it had “the authority and jurisdiction over gaming pursuant to their treaty and inherent Aboriginal rights”. Further, according to WON, the 1993 WON Agreement “goes on to state that its objective is to recognize WON’s jurisdiction over gaming on its reserve.” OLG’s proposals for what became Modernization contemplated impacting WON’s rights. Finally, the conduct contemplated by the Minister and OLG had the potential to, and did, affect the Aboriginal right claimed by WON. In particular, OLG and the Minister were aware that bundling would make it impractical for small operators to participate in the procurement process on their own, thus affecting WON’s right to exercise authority and jurisdiction over gaming As well, if Gateway builds a new casino on lands that are not part of WON’s territory, this will take business away from Golden Eagle, WON’s charity bingo hall.

[147] WON also submits that the duty to consult was not carried out. There is no suggestion during the Modernization process that OLG or the Minister considered that the duty was owed or that they were taking steps to meet it. None of the meetings OLG or the Minister had with WON could be considered as discharging the duty, because those were meetings available to all “stakeholders”. When in 2015 WON raised its concerns about bundling and asked OLG to delink the Kenora Zone from the North Bundle, OLG responded with a blunt refusal and did not notify the Minister of its position.

[148] OLG and the Minister argue that the duty to consult was not triggered. First, the 1993 WON Agreement did not affirm WON’s gaming rights; it only states that WON was asserting such rights. Second, the Supreme Court of Canada jurisprudence since the 1993 WON Agreement legitimately caused the Crown to consider that any asserted Aboriginal right to practice and govern gaming was not a credible one. Certainly, it was never asserted during the Modernization consultation. Even in this application, WON has not adduced sufficient evidence to support the credibility of the existence of this right. The evidence is evidence from a historian (Susan Elaine Gray) who prepared an annotated bibliography containing a list of historical sources that discuss Anishinaabe gaming practices from first contact with Europeans to the mid twentieth century. According to the Respondents, this evidence goes no further than the evidence that was before the Supreme Court of Canada in Pamajewon, above.

[149] The Minister and OLG also submit that the conduct contemplated by Modernization would not adversely affect WON’s right to practice gaming on or near its reserve. To the contrary, the challenged decisions will facilitate the creation of a new casino, which will only increase gambling opportunities in the area. Further, none of the challenged decisions affect WON’s right to continue to operate Golden Eagle.

[150] In addition, the Supreme Court of Canada in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 (“Rio Tinto”) found that the impact that must be focused on in assessing whether the duty to consult is triggered is the impact that will be caused by the current decision, not the impacts that may have been caused by past decisions. The duty will only be triggered if the current decision has the potential to cause some new or novel adverse impact.

[151] According to the Respondents, there are no novel adverse impacts flowing from Modernization or its implementation. Before and after Modernization, WON was subject to provincial and federal regulations that prevented it from establishing a casino on its own.

[152] According to the Respondents, if the duty to consult was triggered, it was at the low end of the spectrum (as the right asserted was dubious) and was satisfied. As recognized by the Supreme Court, “participation in a forum created for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided” (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 39; see also Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550).

Analysis

[153] The standard of review applicable to the question of whether the duty to consult was triggered is correctness.

[154] For the duty to consult to be triggered the Crown must have actual or constructive knowledge that the First Nation is asserting that it has a credible s. 35 right. We agree with WON that there is no question that it did assert its s. 35(1) right to gaming and to regulate gaming in the 1993 WON Agreement, but do not agree that a s. 35(1) right was acknowledged by the Crown in that agreement. What was acknowledged in the 1993 WON Agreement by Ontario was “that all First Nations in Ontario have an inherent right to be self-governing within the Canadian constitutional framework”. As the Supreme Court of Canada made clear in Pamajewon, at para. 27, a right to gaming and to regulate gaming cannot be characterized as a right to self-government.

[155] The decisions that are the subject of this application for judicial review were made in 2012. The process giving rise to these decisions began in July 2010 when Cabinet directed the OLG to work with the Minister to increase net provincial revenue by modernizing commercial and charitable gaming in the province. This is the earliest date that the duty to consult would have been triggered.

[156] By 2010, 17 years had passed since WON had asserted its s. 35(1) right to gaming. In the intervening period the Supreme Court of Canada had issued two significant decisions on the issue – Pamajewon, which was decided in 1996 and Lovelace, which was decided in 2000. In Pamajewon, the Court refused to recognise that a s. 35(1) right to gaming or the regulation of gaming existed, and the author of the majority decision agreed that commercial gaming was a “twentieth century phenomena” that did not exist among Aboriginal peoples and “was never a part of the means by which these societies were traditionally sustained or socialized.” In Lovelace, the Court stated that in Pamajewon it had found that gambling and the regulation of gambling were not aboriginal rights.

[157] Given this, absent any evidence that would distinguish WON’s position from the position of the Appellants in Pamajewon, we agree with the Respondents that by 2010 there was no evidence that would establish that WON had a credible s. 35(1) right to gaming or the regulation of gaming. In coming to this conclusion we are aware that the right does not have to be established and that the threshold for triggering the duty to consult has been characterized as a low one. However, this is a situation where the Supreme Court has made determinations about the existence of the rights at issue and these determinations spoke to the fact that they did not exist.

[158] This is not to foreclose the possibility that WON or another First Nation could put before a court or other decision maker an evidentiary record that would cause that decision maker to take a different view. However, we do not see it as this Court’s task to determine on a judicial review application whether WON does or does not have a s. 35(1) right to gaming (see Ktunaxa, at para. 84). What we are saying is that, absent such evidence, by 2010 any assertion by WON of an Aboriginal right to gaming or to regulate gaming was not credible.

[159] Not only did WON not provide the Respondents with any such evidence while they were engaging in the process of Modernization, WON did not assert that there was any duty to consult until 2018, which was after the decisions in question had been made. As the Supreme Court made clear in Haida Nation and Ktunaxa, the duty to consult is a two way process. The Crown has its obligations and the Indigenous peoples claiming the right have their obligations. One of the duties of the claimants asserting the right that triggers the duty is to set out that right as clearly and as early as possible. WON did not fulfill this aspect of its obligation.

[160] We also find that WON has failed to establish that the contemplated Crown conduct encompassed by Modernization would potentially trigger any novel adverse impacts for WON. As put by the Supreme Court in Rio Tinto, at para. 49:

The question is whether there is a claim or right that potentially may be adversely impacted by the current government conduct or decision in question. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or right. This is not to say that there is no existing remedy for past and continuing breaches, including previous failures to consult. As noted in Haida Nation, a breach of the duty to consult may be remedied in various ways, including the awarding of damages. To trigger a fresh duty of consultation – the matter which is here at issue – a contemplated Crown action must put current claims and rights in jeopardy.

[161] The Supreme Court recently affirmed this conclusion in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099 at para. 41.

[162] As the Respondents have pointed out, gaming in Ontario has been subject to government regulation for decades, both at the federal and the provincial level. Modernization is only the most recent manifestation of that regulatory process and control. While Modernization may have deprived WON of the right to have a casino on its own lands, it never had that right before Modernization. Both before and after Modernization and the challenged Decisions, WON was subject to provincial and federal regulation preventing it from establishing a casino on its reserve. This was acknowledged by WON’s Chief in his evidence. Modernization and the challenged decisions did not change that fact.

[163] Further, Modernization and the challenged decisions did not exacerbate ongoing impacts so as to give rise to a duty to consult. The assertion that Modernization will cause WON’s current bingo hall to close is not supported by the evidence. WON did file evidence that the area could not support two casinos, partly because of the costs associated with building a casino. However, WON did not file any evidence that if a casino is opened in the area, this will have an adverse impact on its charity bingo hall, Golden Eagle. As the Saskatchewan Court of Appeal found in Buffalo River Dene Nation v. Saskatchewan (Energy and Resources), 2015 SKCA 31, 471 Sask. R. 71 at para. 105, “speculation does not satisfy the third element of the test in Rio Tinto”.

[164] For these reasons we find that the duty to consult was not triggered in this case.

THE ALLEGATION THAT THE DECISIONS WERE INCONSISTENT WITH S. 35 VALUES

[165] The Supreme Court has explained that administrative decision makers are required “to proportionally balance the Charter protections – values and rights – at stake in their decisions, with the relevant statutory mandate”: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 at para. 35, citing Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 at para. 55 (“Doré”). WON argues that this jurisprudence should also apply to s. 35.

[166] If the Doré analysis is equally applicable to s. 35, it is an analysis that is employed as part of the reasonableness review of a particular decision. Since the decisions at issue are not justiciable, the reasonableness of those decisions is not an issue we should or must address.

SHOULD THE APPLICATION BE DISMISSED FOR DELAY?

The Test on a Motion to Dismiss for Delay

[167] The Minister and OLG brought a motion to dismiss the application for delay, which was heard at the same time as the application for judicial review, because WON argued that the merits of the application were a relevant consideration on such a motion. For the reasons that follow, we would also dismiss the application for delay.

[168] There is no limitation period in the JRPA governing the time within which an application for judicial review must be brought. However, judicial review is a discretionary and equitable remedy, and the Ontario courts have exercised their discretion to dismiss applications for undue delay. In doing so, they have considered three criteria: the length of the delay, whether there is a reasonable explanation for the delay, and the prejudice to the respondent or a third party as a result of the delay: Gigliotti c. Collège des Grands Lacs (Conseil d’administration) (2005), 2005 23326 (ON SCDC), 76 O.R. (3d) 561 (Div. Ct.) (“Gigliotti”) at para. 28. Cases have indicated that a delay of six months in commencing an application for judicial review and/or 12 months in perfecting it may be sufficient to dismiss for delay (Gigliotti at para. 30).

[169] WON argues that the Court should add a further criterion – the merits of the case. It relies on British Columbia cases where the merits are considered in delay cases. In Cole v. British Columbia Nurses’ Union, 2014 BCCA 2, 371 D.L.R. (4th) 711, the British Columbia Court of Appeal included the following factor: “whether, on balance, justice requires dismissal of the action” (at para. 15).

[170] We see no need to add a further separate element to the test for dismissal for delay. A number of Ontario cases have held that an application for judicial review may be dismissed regardless of the merits: see, for example, Green v. Ontario (Human Rights Commission), 2010 ONSC 2648 (Div. Ct.) at para. 5; Michipicoten First Nation v. Ontario (Minister of Natural Resources and Forests), 2016 ONSC 6899 (Div. Ct.) at para. 66 (“Michipicoten”).

[171] Ultimately, a court exercising its discretion to dismiss an application for judicial review on account of delay must balance competing interests, and the interests of justice is a consideration throughout the existing three parts of the current test. As stated in Judicial Review, s. 3:4300, above, concerning dismissal for undue delay:

[C]ourts must be satisfied that the lesser of two evils is to permit possibly unlawful administrative action to stand, rather than to cause harm or prejudice to both the public interest in good administration and to the rights of particular individuals.

The Length of the Delay

[172] There is a dispute between the parties as to the length of the delay. We agree with the Respondents that the decisions under review were made in 2012. The application for judicial review was launched almost six years later, in September 2018. This is an excessive delay by any measure.

[173] Even if the time began to run in 2015, when WON asked that the Kenora site be removed from the North Gaming Bundle and OLG refused the request, the delay is three years. Counsel for the Minister included a list of cases in their factum which described cases dismissed for delays that ranged from ten months to six years.

[174] WON has suggested that the delay is not so long, because the announcement of the outcome of the RFP was in December 2016, while the contracts with Gateway were not signed until December 12, 2016 and May 3, 2017. Even using those dates, the delay is close to two years.

[175] However, we do not see the decision about the RFP or the signing of the contracts as the significant dates. WON did not challenge the RFP process that led to the Gateway contracts, except to say that the contracts should be set aside because this would flow from the decision to set aside the November 2012 decisions.

[176] Thus, WON had all the information with respect to the decisions it has challenged on the merits by November 2012. It knew that it could not bid solely for a Kenora casino site, and that it would have to partner in the procurement process. Moreover, it has claimed in this proceeding that the Respondents did not respect the duty to consult. That claim, too, would have been known at the time of the Decision to Bundle and through the RFP process.

There is no Reasonable Explanation for the Delay

[177] WON has failed to give a reasonable explanation for the delay. When one looks at the chronology set out earlier in these reasons, one can only conclude that WON made choices about how to proceed. It chose not to challenge the Decisions around the time they were made. Instead, it chose to participate in the process, joining in partnership with Leaf through the RFI, RFPQ and RFP stages. WON then sought to negotiate with Gateway, the successful bidder, and congratulated on Gateway on its success. It made no complaint along the way that the process was flawed, aside from the request to remove Kenora from the North Bundle in 2015.

[178] Through this period WON had the advice of gaming consultants and lawyers. When the results of negotiations with Gateway were not satisfactory, it then proceeded to threaten civil litigation and it ultimately brought this application in September 2018. While WON has suggested it was “led down the garden path” by OLG and the Minister, the record does not support that assertion. WON made choices and acquiesced in the procurement process.

[179] This Court has held that delay resulting from an applicant’s decision to pursue alternative avenues of redress is not an acceptable explanation for delay: Major Partner Wind Energy Corp. v. Ontario Power Authority, 2015 ONSC 6902 (Div. Ct.) at para. 14.

[180] WON has suggested that it could not have brought the application earlier, because it might have been faced with an argument of prematurity. We disagree. Given the nature of WON’s arguments – a denial of the duty to consult, a denial of procedural fairness and bad faith – the time to bring the application was early on, so as to stop what WON would say was a fatally flawed process. This is the type of case where a court would likely have found exceptional circumstances and dealt with the application for judicial review: see Liquor Control Board of Ontario v. Lifford Wine Agencies Limited (2005), 76 O.R. (3d) 402 (C.A.) at para. 43.

[181] WON also argues that its application should not be dismissed for delay because to do so would ignore the distinctive Anishinaabe cultural predisposition to resolve disputes by avoiding confrontation. In support of this assertion, it relies on an export report written by a historian, Dr. Susan Elaine Gray. Her report is very general. It is essentially an annotated bibliography and a brief paper on the Anishinaabe world view and the connection between that world view and confrontational reticence. The paper is anecdotal and not helpful, as it is based on observations of individuals outside of WON. It does not provide persuasive evidence that there is a cultural predisposition to avoid conflict that explains the delay in bringing this application for judicial review.

[182] We note, as well, that the Divisional Court has dismissed an application for delay in another recent case involving a First Nation in Michipicoten. In that case, it applied the traditional test used on a motion to dismiss for delay, dismissing the application because no cogent reason for the delay had been provided.

Prejudice

[183] Judicial review should be timely. With a long delay, the court can presume prejudice: Khaiter v. Ontario (Labour Relations Board), 2013 ONSC 791 (Div. Ct.) at para. 15. Here the application was brought almost six years after the impugned decisions.

[184] There is no question that OLG has been prejudiced, as it incurred costs in designing and running the procurement process for the North Gaming Bundle. Those costs would have been avoided if WON had acted in a timely manner. Moreover, if the Court were to quash the contracts with Gateway, there would be a detrimental effect on the reputation of OLG and its ability to run a fair and transparent procurement process.

[185] In addition, contracts with a 20-year duration have been signed between OLG and Gateway, and assets have been transferred to Gateway. Gateway has also incurred significant expenses relating to the RFP process and in steps taken since it was awarded the contracts. Gateway has provided evidence that it intended the Kenora casino to be completed and operating by now, but this application for judicial review has delayed the establishment of the Kenora casino.

[186] As well, funds have been paid by Gateway pursuant to those contracts. Those funds have benefitted the public at large through increased provincial revenue. First Nations have also benefitted through an increase in their share of gaming revenue paid through the GRSFA.

[187] Should the application succeed, there is a real likelihood of litigation between OLG and Gateway, and damages would be significantly larger and the litigation more complex given the passage of time since the decisions were made. To paraphrase counsel for OLG, if the application for judicial review had been brought in 2012 or 2013, the omelet would not have been made; now it would have to be unscrambled. It is clear that there would be prejudice to the public interest, to Gateway and to OLG if the application were to proceed despite the lengthy delay.

[188] In summary, there has been an excessive delay. WON has not provided a reasonable explanation for the delay, and there is prejudice to the Respondents and the public interest. This is not a case where the interests of justice weigh against a dismissal for delay.

[189] Accordingly, we would dismiss this application for delay.

Conclusion

[190] For these reasons, the application for judicial review is dismissed. If the parties cannot agree on costs, the Respondents may make brief written submissions within 14 days of the release of these reasons, with WON making brief responding submissions within 14 days thereafter. All submissions should be made through the Divisional Court Office.

Then J.

Swinton J.

Sachs J.

Released: June 6, 2019

CITATION: Wauzhushk Onigum Nation v. Minister of Finance (Ontario), 2019 ONSC 3491

DIVISIONAL COURT FILE NO.: 578/18

DATE: 20190606

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Then, Swinton and Sachs JJ.

BETWEEN:

WAUZHUSHK ONIGUM NATION

Applicant

– and –

MINISTER OF FINANCE (ONTARIO), ONTARIO LOTTERY AND GAMING CORPORATION AND GATEWAY CASINOS AND ENTERTAINMENT LTD.

Respondents

REASONS FOR JUDGMENT

By The Court

Released: June 6, 2019