CITATION: Astro Zodiac Enterprises Ltd. v. Board of Governors of Exhibition Place, 2022 ONSC 1175
DIVISIONAL COURT FILE NO.: 530/21
DATE: 20220301
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
D.L. Corbett, Matheson and Kristjanson JJ.
B E T W E E N:
ASTRO ZODIAC ENTERPRISES LIMITED,
Andrew Faith and Emily Fraser, for the
SCREEMERS INC., ARDO GIDARO,
Applicant
ROSEANNA TILFORD, MARCO GIDARO
and ANDREW GIDARO
Applicants
- and -
THE BOARD OF GOVERNORS OF
David Gourlay and Matthew Cornett, for
EXHIBITION PLACE
the Respondent
Respondent
HEARD at Toronto by video conference:
August 10, 2021
Kristjanson, J.
[1] In this application for judicial review, the applicants seek to quash what they describe as a decision of the Board of Governors of Exhibition Place denying them the right to rent space at Exhibition Place.
[2] Since 1993, the applicant companies Astro Zodiac Enterprises Limited and Screemers Inc. have entered into several short-term agreements with the Board of Governors of Exhibition Place to rent space at Exhibition Place to run private, for-profit events, including a Hallowe’en-themed haunted house. Exhibition Place management staff decided on May 20, 2021 that they would no longer contract to rent space at Exhibition Place to Astro Zodiac, Screemers, or any other businesses owned by Mr. Gidaro or his family members because of alleged harassment and bullying of Exhibition Place staff over several years. The applicants seek to judicially review the decision as procedurally unfair. The applicants also seek an order directing the Board to extend fairness and good faith deliberation to the applicants’ request for future licenses to operate.
[3] The Board raises a preliminary issue that the application should be dismissed because the decision to decline to enter into a rental agreement is not subject to judicial review, since it is a private power of contracting and not a public decision. I agree. The application for judicial review is dismissed.
The Parties
[4] Exhibition Place is owned by the City of Toronto. It is a large area of parkland, exhibition space, sporting venues, and other buildings. Since 1993, the applicants have operated amusements and events at Exhibition Place by entering into short-term rental agreements with the Board of Governors of Exhibition Place (“Board”).
[5] The applicants are members of the Gidaro family and their two businesses. Ardo Gidaro is the owner of Astro Zodiac Enterprises Limited and Screemers Inc. His wife, Roseanna Tilford, is the General Manager of both companies. Ardo and Roseanna’s sons, Andrew Gidaro and Marco Gidaro, work full-time for Astro Zodiac and Screemers.
Regulatory Framework
[6] The Board is a body corporate and an agent of the City under ss. 142(2) and 407(1) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (“COTA”). The Board's governance and delegated authorities are set out by the City in Toronto Municipal Code, Chapter 63, Exhibition Place, Governance (“Chapter 63”) and a Relationship Framework adopted by City Council (“Relationship Framework”). The Toronto Municipal Code is a compilation of municipal by-laws organized by subject. Chapter 63 contains the provisions governing Exhibition Place governance. The Board consists of nine members appointed by City Council, including the Mayor or designate, four members of City Council, and four members of the public. It has a long-term mandate for the operation, management, and maintenance of Exhibition Place as a “strategic City asset” on behalf of the City.
[7] The use of Exhibition Place is governed by s. 406(2) of COTA which provides:
(2) Exhibition Place shall be used,
(a) for parks and exhibition purposes
(b) for the purposes of trade centres and trade and agricultural fairs such as, but not limited to, the annual Canadian National Exhibition and Royal Agricultural Winter Fair
(c) for displays, agricultural activities, sporting events, athletic contests, public entertainments and meetings
(d) for highway, electrical transmission or public utility purposes
(e) for any other purpose that the City may approve.
[8] Under the Municipal Code, the Board is given a mandate and delegated authority to:
(a) Approve expenditures within its approved budget and to delegate such authority to staff within an approved limit
(b) Establish facility booking policies and set fees and charges for the use of facilities
(c) Procure goods and services in its own name using a competitive process
(d) Enter into any contracts and agreements in its own name
(e) Initiate or defend legal action in its own name, and
(f) Approve key policies and practices consistent with the Relationship Framework.
[9] The Board exercises delegated real estate authority over Exhibition Place assets under the Municipal Code, Chapter 63 and the Relationship Framework. It has the authority to approve and execute licenses and leases (other than those for consumer and trade shows and conferences and events) in relation to areas or facilities on Exhibition Place lands on terms acceptable to the Board, if they are for a period of less than one year, or less than four years if the lease is for a portion of an existing building (Chapter 63, s. 63-6.1A). The Board also has delegated real estate authority to enter into multi-year license agreements for consumer and trade shows and conferences and events that are less than 20 days in any one year, provided such multi-year agreements are for a term of 10 years or less (Chapter 63, s. 63-6.1B). The Board has the authority to establish facility booking policies and set fees and charges for use of facilities (Relationship Framework, s. 2.3.4).
[10] Section 2.2 of the Relationship Framework sets out the City’s rationale for having the Board manage Exhibition Place rather than the City directly managing, including:
(a) operating Exhibition Place holistically as a self-sufficient business unit responsible for all inter-related assets and business supports permitting focused attention on the strategic objectives for the site
(b) engaging the key stakeholders and business partners with a vested interest in the area in the decision-making process
(c) utilizing the commercial expertise, skills and contacts available in the community on the Board to facilitate entering into partnerships with the private sector.
[11] Article 3 of the Relationship Framework identifies those decisions of the Board for which Council approval, consent or action is required, including “any agreement with a third party related to the provision of services, leasing and/or licensing of buildings or land in excess of four years,” and “License agreements for consumer or trade shows and conferences and events that are more than 20 days duration in one year where the term of the agreement exceeds 10 years,” and any use of the property other than for purposes as stated in s. 406 of COTA.
[12] The agreements in issue here do not fall within the category of agreements for which City Council approval or consent is required. The decision to enter into the short-term license agreements the applicants sought falls within the delegated discretion of the Board.
[13] Exhibition Place staff are employees of the Board and not the City (Chapter 63 and the Relationship Framework). The Relationship Framework also sets out the Board's operating principles, which include:
4.2 The Board shall manage Exhibition Place in a fiscally responsible manner, and in accordance with the Board’s annual operating and capital budgets, and where applicable, the City’s financial policies as approved by Council with a view to maximizing annual revenue from all sources including commercial “for profit” trade centre and conference centre operations.
4.3 The Board at all times shall endeavour to manage and control Exhibition Place in a reasonable and efficient manner, in accordance with prudent business practice.
[14] The Board has delegated certain decisions to the Chief Executive Officer of Exhibition Place, to enter into rental agreements for a term of less than one year, and consistent with the Board’s rental policies (s. 5.2 of the Board's Financial By-law). Staff must report to and seek Board approval before signing an agreement at rates below the Board’s standard rental rate for event spaces. Screemers has always received a discounted rental rate to hold its annual haunted house event. As a result, Exhibition Place staff have sought approval from the Board before entering into the annual rental agreements. With the exceptions of 2008-2010, 2020 (because of the COVID-19 pandemic), and now 2021, Screemers had entered into one-year rental agreements with the Board since 1993.
Decision to Not Contract in 2021
[15] On February 23, 2021, the parties started negotiations for the 2021 Screemers event. Ultimately, Exhibition Place staff declined to offer space to Screemers, did not seek approval for an agreement from the Board, and did not sign any agreement. This is the decision under review.
[16] On May 20, 2021, in a Zoom meeting, Exhibition Place staff informed Mr. Ardo Gidaro that it would not provide space to Screemers for 2021, and it was terminating the relationship with Mr. Gidaro’s family businesses of Astro Zodiac and Screemers, or any other companies, as licensees, effective immediately. Reasons given for the decision were complaints of harassment about an event held in 2021, a review of the history of other employee complaints of harassment since 2011 (intimidation, harassment, rudeness, threatening actions, yelling and swearing, by persons employed by or affiliated with Astro Zodiac and Screemers), documentation including a prior warning letter, two legal opinions about these complaints of harassment, and the Board’s duty to uphold a safe workplace for its employees. In the operative part of the decision, Exhibition Place staff stated:
As part of our investigation, Exhibition Place further obtained two legal opinions with respect to these complaints of harassment and our duty to uphold a safe workplace for our employees, and wish to advise you that based on that legal advice and the past history; Exhibition Place has determined that we will be terminating our relationship with your family's businesses of Astro Zodiak and Screemers, or any other companies, as Licensees, effective immediately. This decision has been reviewed with both our CEO and Board Chair.
We understand that historically your company has been a supplier to other events at Exhibition Place, such as [Wonderland] and acknowledge that you may choose to continue to supply your games and rides directly to those event organizers, however, we will restrict you from being a Licensee, or have you or and your employees refrain from any interaction with our staff. Furthermore, we are aware that you were in discussions with the Sales team regarding Screemers for Fall of 2021 and am advising you that Exhibition Place will not be issuing you a Licensing Agreement for that event.
[17] In their submissions, the applicants wrongly described this decision as a permanent ban. On the contrary, the applicants remain free to seek a licence in future years.
[18] The applicants make several arguments contesting the validity of the harassment complaints, and lack of notice, during their procedural fairness arguments. For the preliminary determination, however, I do not have to resolve these issues.
Preliminary Issue: Not a Decision of a Sufficiently Public Character
[19] This Board raises a preliminary issue, that the decision not to enter an agreement is a private law contractual matter, so this court lacks jurisdiction to hear this application for judicial review under s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”).
[20] The applicants argue that the decision is subject to judicial review because the decision was an exercise of a statutory power of decision under s. 63-6.1 of the Toronto Municipal Code, which gives the Board authority to approve and execute licenses over Exhibition Place lands. When a proposed license or lease falls outside the Board’s authority, City Council must approve the decision. The applicants rely on the factors set out in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 60, to argue that the decision was public and amenable to judicial review. Generally, the applicants argue that the Board’s responsibility to manage public land, the Board’s authority to approve and execute licenses, and the Board’s status as a part of the City under COTA show that the decision has public dimension and is justiciable. The applicants rely on the suitability of public law remedies factor to argue that their desired outcome can be achieved through judicial review in a more direct and expeditious way than through seeking common law remedies.
[21] The Board argues that the decision has no public character that would allow for review by this court. The Board did not exercise a statutory power of decision in relation to the decision to terminate the relationship with the applicants. The Board also relies on the Air Canada factors to argue that the decision is a discretionary private contracting decision not suitable for public law remedies and not subject to judicial review.
Analysis
[22] I find that the decision does not fall under the scope of public law and is not subject to judicial review. The decision whether to rent space at Exhibition Place to a private company for a profit-making activity is not an exercise of state authority of sufficiently public character that public law remedies are available.
[23] Subsection 2(1) of the JRPA sets out this court’s jurisdiction to hear an application for judicial review:
2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may... grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[24] Section 1 of the JRPA defines “statutory power” to include a power or right conferred by or under a statute “to exercise a statutory power of decision.” “Statutory power of decision” is defined in s. 1 to mean a power or right conferred by or under a statute to make a decision deciding or prescribing:
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not….
[25] Section 1 of the JRPA defines licence to include: “any permit, certificate, approval, registration, or similar permission required by law.”
[26] The Board did not exercise a statutory power of decision in relation to the decision not to enter a contract with the applicants. As the Court of Appeal held in Paine v. University of Toronto et al. (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 722, “it is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it … must be a specific power or right to make the very decision in issue.” In this case, while the Board’s authority to enter contracts is based on authority delegated under COTA and the Toronto Municipal Code, the manner of the exercise of the power to contract—including the decision to enter into any particular contract—is not subject to any constraining statutory requirements except as to duration and type. The power to contract is permissive. COTA, the Toronto Municipal Code, and the Relationship Framework, do not dictate how the Board’s discretion to enter, negotiate, or terminate the type of contract in issue here is to be exercised.
[27] In any event, jurisdiction to issue an order in the nature of certiorari under s. 2(1)1 of the JRPA is not limited to statutory powers of decision, and not all statutory powers of decision are subject to judicial review.
[28] The issue is whether the decision to not enter a contract is (a) an exercise of state authority, and (b) of sufficiently public character that public law remedies are available. In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 14, the Supreme Court explained the limited reach of public law:
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 Air Canada Factors
[29] The factors that determine whether a decision by a state actor is a public law decision of sufficient public character to be subject to judicial review are set out in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 60: see also Highwood Congregation, at para. 21; Weld v. Ottawa Public Library, 2019 ONSC 5358 (Div. Ct.), at para. 14 and Wise Elephant Family Health Team v. Ontario (Minister of Health), 2021 ONSC 3350 at paras. 71-80. The court in Air Canada, at para. 60, held that “[w]hether or not any one factor or a combination of particular factors tips the balance and makes a matter ‘public’ depends on the facts of the case and the overall impression registered upon the Court.” Applying the relevant Air Canada factors, and weighing the overall impression of the case as discussed below, I conclude that the matter is a private contract dispute and that public law remedies are not suitable.
[30] The character of the matter for which review is sought. The matter is a private contract for the rental of space to operate a Hallowe’en event by a for-profit operator.
[31] The nature of the decision-maker and its responsibilities. The Board exercises delegated public authority to rent or lease City lands and to manage Exhibition Place under the Toronto Municipal Code, COTA, and the Relationship Framework. It is not a statutory administrative body like a court or adjudicative tribunal. The matter under review is the exercise of a permissive power to contract with a private party, consistent with the elements of the Relationship Framework that direct the Board to operate as a business.
[32] How much a decision is founded in and shaped by law rather than private discretion. The Board has general authority to enter into contracts and agreements in its own name: Toronto Municipal Code, Chapter 63. There are certain limits on the Board’s authority to execute licenses and leases in relation to facilities on Exhibition Place lands (Municipal Code, Chapter 63, s. 63-6.1), and some decisions which must be approved by City Council as discussed above. The one-year agreement for short-term use of space in issue here does not fit within those categories. It is squarely within the Board’s discretionary leasing authority. There are no statutory or regulatory criteria directing whether, to whom, or how the Board is to rent or lease Exhibition Place property. The decision not to enter a contract is an exercise of private law discretion.
[33] The Board’s relationship to other statutory schemes, or as an agent of government or directed or significantly influenced by a public entity. The Board is a City board but does not exercise the City’s by-law making or administrative functions. Under the Relationship Framework, it is intended to operate “as a self-sufficient business unit responsible for all inter-related assets and business supports.” While some Board members are City councillors, this is not dispositive. The Board can enter contracts and agreements in its own name without approval by or the consent of Council with few exceptions not applicable here. Its staff are not employees of the City, but of the Board. The decision to rent space is not part of a larger exercise of government power.
[34] The suitability of public law remedies. The applicants seek to quash the decision with a “direction that Exhibition Place extend fairness and good faith deliberation to the applicants’ request for licenses to operate.” The Board need not enter contracts with any particular applicant as a matter of public law. The delegated authority is permissive: it allows the Board to enter into agreements for the use of Exhibition Place facilities. The Board’s discretionary decisions on private contracting are not suitable for public law remedies. The applicants may pursue private law remedies against the Board.
[35] The existence of compulsory power. The Board has no compulsory power over any of the applicants, in the way that a Law Society has compulsory powers over its licensees, for example. The applicants may contract for space anywhere.
[36] An “exceptional” category of cases in which the conduct has attained a serious public dimension. Stratas J.A. in Air Canada described this consideration as follows:
Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable: Aga Khan, supra at pages 867 and 873; see also Paul Craig, “Public Law and Control Over Private Power” in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) 196. This may include cases where the existence of fraud, bribery, corruption or a human rights violation transforms the matter from one of private significance to one of great public moment: Irving Shipbuilding, supra at paragraphs 61-62.
[37] This case does not fall within the exceptional category. The issue is the decision to enter a contract for the use of Exhibition Place facilities by the applicant companies in their profit-making enterprises. Nothing in the allegations raises “very serious, exceptional effects on the rights or interests of a broad segment of the public.” The applicants can seek other contracts, at other locations, to provide their events. There is no additional public law dimension in accordance with the last Air Canada factor that would constitute this as an “exceptional case” in which public law remedies would be appropriate. Having considered all the factors and the overall impression of the case, I conclude that the matter is a contract dispute, and public law remedies are not suitable.
Costs
[38] The respondent Board seeks costs on a partial indemnity basis in the amount of $22,561. This is an amount within the contemplation of the applicants, whose partial indemnity bill was $47,123. Costs in the amount of $22,561 are awarded to the respondent, as an amount which is reasonable in the circumstances.
Order
[39] The application for judicial review is dismissed. The applicants are to pay the respondent costs of $22,561.00, inclusive.
“Kristjanson J. “
“I agree. D.L. Corbett J.”
“I agree. Matheson J.”
Released: March 1, 2022
CITATION: Astro Zodiac Enterprises Ltd. v. Board of Governors of Exhibition Place, 2022 ONSC 1175
DIVISIONAL COURT FILE NO.: 530/21
DATE: 20220301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Matheson, and Kristjanson JJ.
BETWEEN:
ASTRO ZODIAC ENTERPRISES LIMITED, SCREEMERS INC., ARDO GIDARO, ROSEANNA TILFORD, MARCO GIDARO and ANDREW GIDARO
Applicants
– and –
BOARD OF GOVERNORS OF EXHIBITION PLACE
Respondent
REASONS FOR DECISION
Released: March 1, 2022