Court File and Parties

2025 ONSC 1217

TORONTO DIVISIONAL COURT FILE NO.: DC-24-00000007-00JR

DATE: 20250224

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Firestone RSJ., Charney and Davies JJ.

BETWEEN:

THE ONTARIO HEALTH COALITION and CATHERINE PARKES Applicants

– and –

ONTARIO MINISTER OF LONG-TERM CARE Respondent

Steven Shrybman and Naomi Greckol-Herlich, for the Applicants

Michael J. Sims and Matthew Chung, for the Respondent

HEARD at Toronto: October 17, 2024

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The Applicants, the Ontario Health Coalition (“OHC”) and Catherine Parkes, bring this Application to judicially review the June 14, 2023 decision of the Minister of Long-Term Care (the “Minister”) to approve funding and undertake to issue a licence for a new 320 bed long-term care home in Pickering, Ontario. The Minister determined that it was in the public interest to increase the number of long-term care beds in Pickering.

[2] The Director of the Capital Planning Branch (the “Director”), the official in the Ministry appointed to exercise licensing related powers under Part VIII (Licensing) of the Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Schedule 1 (the “FLTCA”), gave the proponent of the new home, Southbridge Care Homes (“Southbridge”), a conditional undertaking to issue it a licence, subject to meeting applicable conditions.

[3] If the conditions are met and the licence is granted, Southbridge will be permitted to develop 320 beds in a new long-term care home, to be built on the site of the current Southbridge Orchard Villa Long-Term Care Home (“Orchard Villa”).

[4] The Applicants contend that the Director failed to base his decision on the objective record of Southbridge’s past conduct of operations at Orchard Villa. The Applicants argue that Southbridge’s record shows a pattern of failure to comply with its regulatory obligations, and of causing risk of, and harm to residents. The Applicants argue that Southridge’s record of non-compliance is one of the worst of any LTC home in the province.

[5] The Applicants submit that both the Minister’s and Director’s decisions are unreasonable and were not made in a manner that complied with the FLTCA. They further contend that they have been denied natural justice and a fair opportunity to participate in the approvals process or have their concerns taken into account.

[6] The Minister raises two interrelated preliminary issues. First, he argues that the Applicants do not have standing to challenge the impugned decisions since they are neither directly affected by the decisions, nor should they be granted public interest standing. Second, the Minister argues that the application for judicial review is premature because the undertaking to issue a licence at some point in the future if conditions are met is an interim step that does not entitle the proponent to operate a long-term care home.

[7] If the Court does consider the Applicants’ challenge on its merits, the Minister argues that the impugned decisions were reasonable and made in compliance with the governing legislation. Nor were the Applicants deprived of procedural fairness.

Facts

[8] The Ministry of Long-Term Care has announced several calls for applications for long-term care bed allocations since 2018. Through those processes, the Ministry has issued tranches of funding for new and redeveloped beds in various parts of the province.

[9] Southbridge currently operates a long-term care home in Pickering called Orchard Villa. It seeks to build a new, larger long-term care home in Pickering.

[10] Pursuant to that goal, Southbridge applied for funding approval from the Minister in response to a call for applications in 2019 (the “2019 Application”). In its application, Southbridge sought funding approval for construction of a new long-term care home to replace its current, smaller home. The Minister approved that application in November 2020. That approval is not challenged in this Application.

[11] Southbridge applied for funding again in response to a call for applications in 2021 (the “2021 Application”), which was further revised in March 2023. That second application was for a larger number of new beds than were approved in 2020 and was considered under an updated capital funding policy.

[12] In relation to the 2021 Application, the Minister conducted two public consultations: one in July 2021 and another in October 2022. The Applicant Catherine Parkes made written submissions in each of these consultations. The other Applicant, Ontario Health Coalition, responded to the first consultation with a petition and made written submissions in the second consultation.

[13] That second funding application was given conditional approval on June 14, 2023, and the 2019 Application was set aside.

[Fixing Long-Term Care Act, 2021](https://www.canlii.org/en/on/laws/stat/so-2021-c-39-sch-1/latest/so-2021-c-39-sch-1.html)

[14] The licencing of long-term care homes in Ontario is governed by Part VIII of the FLTCA. Pursuant to s. 98 of the FLTCA, a licence is required to operate residential premises for persons requiring nursing care in Ontario except for premises regulated by other specified statutes. A licensee cannot not operate more beds in a long-term care home than are allowed under the licence: s. 107.

[15] As part of the licencing process, the Minister is required to determine whether or not there should be a long-term care home in a particular area, and how many long-term care beds should be in that area, by “considering what is in the public interest.” Section 99(1) of the FLTCA outlines the factors that the Minister should take into account. It provides:

99 (1) Subject to subsection (2), the Minister shall determine whether or not there should be a long-term care home in an area, and how many long-term care home beds there should be in an area, by considering what is in the public interest, having taken into account,

(a) the long-term care home bed capacity that exists,

(i) in the area, or

(ii) in the area and any other area;

(b) the other facilities or services that are available,

(i) in the area, or

(ii) in the area and any other area;

(c) the current and predictable continuing demand for long-term care home beds,

(i) in the area, or

(ii) in the area and any other area;

(d) the funds available for long-term care homes in Ontario;

(e) any other matters that may be provided for in the regulations; and

(f) any other matters that the Minister considers to be relevant.

[16] The Minister has the discretion to restrict who may be issued a licence based on her determination of the public interest. The Legislature has set out in s. 100(1) the factors the Minister must consider in her determination of the public interest for the purposes of that section:

100 (1) The Minister may restrict who may be issued a licence based on what the Minister considers to be in the public interest, having taken into account,

(a) the effect that issuing the licence would have on the concentration of ownership, control or management of long-term care homes,

(i) in the area,

(ii) in the area and any other area, or

(iii) in Ontario;

(b) the effect that issuing the licence would have on the balance between non-profit and for-profit long-term care homes,

(i) in the area,

(ii) in the area and any other area, or

(iii) in Ontario; and

(c) any other matters that may be provided for in the regulations.

[17] Section 101 of the FLTCA sets out the “limitations on eligibility for a licence”. It enumerates six factors for the Director to consider:

101 (1) A person is only eligible to be issued a licence for a long-term care home if, in the Director’s opinion,

(a) the home and its operation would comply with this Act and the regulations and any other applicable Act, regulation or municipal by-law;

(b) where the home is subject to a development agreement, the home, or the beds that are subject to a development agreement, complies with, and will continue to comply with, the applicable design manual and any additional design requirements required under the development agreement;

(c) the past conduct relating to the operation of a long-term care home or any other matter or business of the following affords reasonable grounds to believe that the home will be operated in accordance with the law and with honesty and integrity:

(i) the person,

(ii) if the person is a corporation, the officers and directors of the corporation and any other person with a controlling interest in the corporation, and

(iii) if the person with a controlling interest referred to in subclause (ii) is a corporation, the officers and directors of that corporation;

(d) it has been demonstrated by the person that the person or, where the person is a corporation, its officers and directors and the persons with a controlling interest in it, is competent to operate a long-term care home in a responsible manner in accordance with this Act and the regulations and is in a position to furnish or provide the required services;

(e) the past conduct relating to the operation of a long-term care home or any other matter or business of the following affords reasonable grounds to believe that the home will not be operated in a manner that is prejudicial to the health, safety or welfare of its residents:

(i) the person,

(ii) if the person is a corporation, the officers and directors of the corporation and any other person with a controlling interest in the corporation, and

(iii) if the person with a controlling interest referred to in subclause (ii) is a corporation, the officers and directors of the corporation; and

(f) the person is not ineligible because of any other reason that may be provided for in the regulations.

[18] If the Director decides that a person is not eligible to be issued a licence under s. 101(1), the Director must give that person reasons, and the person has the right to appeal the decision to the Health Services Appeal and Review Board.

[19] Section 102 of the FLTCA provides that “following a determination by the Minister or a decision of the Director”, the Director “may issue a licence for a long-term care home at the location specified in the licence subject to any restrictions under section 100 and subject to section 101”.

[20] Section 103 of the FLTCA provides that “following a determination by the Minister or a decision of the Director”, the Director “may, subject to any restrictions under section 100 and subject to section 101, give an undertaking to issue a licence to a person on condition that the person agrees to satisfy the specified conditions set out in the undertaking”. Pursuant to s. 103(7) of the FLTCA, the undertaking may be cancelled if the Director determines that any of the terms and conditions set out in the in the undertaking are not complied with.

[21] The Application in this case relates to an undertaking to issue a licence given pursuant to s. 103 of the FLTCA. That undertaking is subject to a number of conditions, and if the Director determines that any of the conditions are not complied with, the undertaking may be cancelled and the licence will not be issued.

[22] Finally, s. 109 of the FLTCA sets out a requirement for public consultation before issuing a licence or undertaking to issue a licence. Section 109 provides:

109 (1) Subject to subsection (3), the Director shall consult the public before,

(a) issuing a licence for a new long-term care home under section 102;

(b) undertaking to issue a licence under section 103;

(c) transferring a licence, or beds under a licence, under section 108; or

(d) amending a licence to increase the number of beds or to extend the term of the licence under section 116.

(2) The Director may determine how public consultations under subsection (1) shall be conducted.

[23] The Director is not required to consult the public if the Director has determined that public consultation is not warranted: s. 109(3).

The Consultation Process

[24] On May 4, 2021, the Director determined that public consultation was required in relation to any decision to undertake to issue a licence to Southbridge.

[25] Members of the public had an opportunity to present their views at a public meeting held by teleconference on July 15, 2021 and in writing. Catherine Parkes participated in the public meeting and subsequently submitted comments in writing to the Ministry. The OHC delivered a 44-page petition that was expressly referenced in the summary of public feedback prepared for the Director.

[26] In 2022, the Director held a further public consultation as a result of the proposed licence transfer necessary to enable a proposed change to Southbridge’s corporate composition (as a limited partnership). Members of the public had the opportunity to provide their views to the Ministry in writing. The Ministry received more than 200 written submissions, including submissions from Catherine Parkes and the OHC. Materials prepared for the Director and the Minister noted that public comment was mostly directed to “Orchard Villa’s performance during the COVID-19 pandemic.” The Ministry determined that any undertaking to issue Southbridge a licence should be made subject to appropriate conditions “to address public concerns.”

Record of Decision

[27] The Record of Decision contains hundreds of documents and is over 7,200 pages long. Several of its 23 volumes provide a detailed description of the Project. Nearly 550 pages reproduce the written submissions of participants in the consultation processes.

[28] The Record includes information about the failure of Southbridge operations at Orchard Villa to comply with the Act and Regulations, and to provide for the proper care and safety of residents, including an account of the Company’s record of regulatory non-compliances between January 2018 and June 30, 2021 during which time Southbridge was given 121 notices of regulatory infractions, plans for correction and compliance orders.

[29] The Applicants complain that the Record of Decision does not include any account of Southridge’s failures between 2015 and 2017 or from July 1, 2021 to the date of the Director’s decision in June 2023.

[30] The Record of Decision demonstrates that the Minister considered the public interest on several occasions.

[31] The Minister has disclosed the Briefing Note prepared for the Minister of Long-Term Care, dated October 25, 2020 (the Decision Package). The Briefing Note sets out a detailed consideration of the need for beds and whether restrictions were needed on who could be a licensee based on considerations of concentration of ownership and the sector balance between for-profit and non-profit operators.

[32] The Decision Package included reference to the COVID outbreak at Orchard Villa (under the management of Extendicare) and the fact that it had entered into a voluntary management agreement with a local hospital (replacing Extendicare as the external manager of the home) and required military assistance.

[33] The Minister considered the public interest a second time before the Director approved the transfer of Southbridge’s licence for Orchard Villa as part of a corporate reorganization.

[34] The Minister considered the public interest a third time before approving the 2021 Application. Again, the Decision Package prepared for the Minister set out a consideration of the need for beds, and whether restrictions were needed on who could be a licensee based on considerations of concentration of ownership, and the sector balance between for-profit and non-profit operator.

[35] The Long-Term Care Inspection Branch provided two assessments in response to Southbridge’s application. In November 2020, the Ministry’s Capital Planning Branch noted that the Inspection Branch had expressed concerns about Southbridge, noting that the home had required a management contract with Lakeridge Health (replacing its management contract with Extendicare) and military assistance during a COVID outbreak.

[36] In October 2021, the Inspection Branch revised its view, with the following context:

Orchard Villa received support from the Canadian Armed Forces (CAF) during Wave 1 of the pandemic. Additionally, the licensee entered into a [voluntary management contract] for 90 days with Lakeridge Hospital from June 12, 2020 to September 10, 2020. Over the past year the home has shown improvement by establishing sufficient staffing levels and stable leadership. The home has received minimal non-compliances in the past year.

[37] The staff of the Capital Planning Branch (responsible for licensing matters) noted the input from the Inspection Branch, which included information provided in May 2023 indicating that at that point there were concerns about an outstanding compliance order for the current home. As a result, in part, of that input, the staff of the Capital Planning Branch recommended that the Director give an undertaking to issue a licence with additional conditions.

[38] The Director implemented her staff’s recommendation and gave an undertaking to issue a licence. The undertaking included four statutorily prescribed conditions and additional conditions, including:

• that Southbridge maintain compliance in the existing home and self-manage the proposed home;
• that it be required to hire a management company other than Extendicare if Southbridge’s self management of the proposed home proved incapable of maintaining compliance;
• that it enter into a contract with a hospital or not-for-profit entity to provide ongoing clinical support/backup for at least the first year of operation of the proposed home; and
• to address public concerns related to the home’s performance during the pandemic, the license needs a proactive public relations plan to demonstrate improvement made in the home and improve relationships with existing and future residents/family/staff and the community.

[39] A proactive inspection by the Inspections Branch is scheduled for each year in the existing home until the licence for the proposed home is issued and regular inspections occur every two months to follow up on any critical incidents and complaints.

Position of the Applicant

[40] The Applicant takes the position that Southridge’s operation of Orchard Villa has persistently failed to comply with the FLTCA and its regulations. They reference Ontario’s Long-Term Care COVID 19 Commission Final Report (April 2021) (the “Commission Report”), which reviewed the poor performance of Orchard Villa in April 2020, when the Durham Region’s Medical Officer of Health decided to invoke s. 29.2 of the Health Protection and Promotion Act, to order that the local hospital, Lakeridge Health, assume management of Orchard Villa. The Report stated, at pp. 152-53:

Orchard Villa is a “C” type building – one of the oldest types of homes in the province. Inside, its various rooms and common areas were interconnected. When the Lakeridge team arrived, all of the internal doors were open and residents were wandering freely about the home, increasing the risk that the virus would spread between the well and unwell. It was evident, according to Lakeridge, that the residents were unable to properly protect themselves with masks.

Staffing levels had collapsed to approximately 20 to 25 per cent of the normal complement.

Though Orchard Villa was particularly hard-hit by COVID-19, it was not alone in its challenges.

[41] The Applicants also reference the Ontario Ombudsman Report Investigation into the Ministry of Long-Term Care’s oversight of long-term care homes through inspection and enforcement during the COVID-19 pandemic. This report was released in September 2023, approximately three months after the impugned decision of the Director was made. The report stated, at para. 30

The impact of the pandemic was inconsistent across individual long-term care homes. For example, the 233-bed Orchard Villa home in Pickering experienced 70 resident deaths due to COVID. Meanwhile, other homes experienced no large outbreaks and few deaths.

[42] The Applicants’ position, in a nutshell, is that given Southbridge’s record in operating Orchard Villa during COVID, it was unreasonable for the Minister and the Director to grant even a conditional undertaking to issue a licence, because s. 101(1) (c) of the FLTCA requires the Director to consider “the past conduct relating to the operation of a long-term care home”. The Applicants argue that any reasonable consideration of Southbridge’s record in operating Orchard Villa would disqualify it from any licence.

[43] The Applicants also argue that the consultation process was inadequate. They assert that during the first consultation in July 2021, the participants were directed to limit their comments to Southbridge’s present plans, and to not speak about its past practices or performance. Further, they argue that the summary of the email submissions prepared by the Ministry staff did not include everything that was in the emails.

[44] The Applicants state that at the second consultation in October 2022, which invited written submissions, over 210 individually composed submissions were received. All submissions opposed giving Southbridge the license it was seeking.

Standing

[45] The Respondent takes the position that the Applicants do not meet the test for either private interest or public interest standing.

[46] Both Applicants rely only on public interest standing in this Application.

[47] Ms. Parkes is the daughter of a former resident of Orchard Villa. Her father resided in Orchard Villa from November 2019 until he passed away on April 15, 2020, during the first wave of the COVID-19 pandemic. In the past few years, she has become increasingly involved in long-term care advocacy in Ontario. Her affidavit details her and her father’s experience at Orchard Villa during his time there. She attended and participated in the public consultation concerning the Southbridge proposal on July 15, 2021. She also participated in the second consultation in 2022 and provided a written submission.

[48] The OHC has been involved in public interest advocacy since the 1980s. It describes itself as a coalition representing more than 500 member organizations and individual members including seniors’ groups, patients’ organizations, trade unions, nurses and health professional organizations, physicians and physician organizations, non-profit community agencies, ethnic and cultural organizations, residents and family councils, retirees, poverty and equality seeking groups, and women’s organizations. They describe themselves as “a non-partisan public interest group whose primary goal is to protect and improve our public health care system”.

[49] The OHC participated in the first consultation on July 15, 2021 and the second consultation in 2022.

[50] If an applicant wishes to obtain public interest standing, it needs to demonstrate that the case raises a serious justiciable issue, that it has a genuine interest in the matter at issue, and that the application is a reasonable and effective means of bringing the case to court: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 2.

[51] These factors should be assessed and weighed cumulatively, in light of the underlying purpose of limiting standing and should be applied in a flexible and generous manner that best serves those underlying purposes: see Downtown East Side, at paras. 20-37.

(i) Does the case raise a serious justiciable issue?

[52] To constitute a serious justiciable issue, the question raised must be a “substantial constitutional issue” or an “important one” that is “far from frivolous”, although courts “should not examine the merits of the case in other than a preliminary manner”. Once it becomes clear that the application reveals at least one serious issue, it will usually not be necessary to examine every pleaded claim for the purpose of the standing question: see Downtown Eastside, at para. 42.

[53] While the Applicants have sought to turn this case into a constitutional case by referencing “Charter values” in their legal submissions, this is not, in my view, a case that raises a “substantial constitutional issue”. The Charter issue raised by the Applicants – that granting Southbridge even a conditional undertaking to issue a licence infringes the life, liberty and security of the person of future residents of the proposed home – is based on the premise that the proposed licence holder may not comply with its obligations under the FLTCA and the terms of its licence in the future. That position is purely speculative.

[54] The Applicants do not represent any of the future residents of the home.

[55] The balance of the issues raised by the Applicants – the adequacy of the public consultation process and the reasonableness of the decision to grant Southridge a conditional undertaking to issue a licence – do not, in my view, raise serious justiciable issues with a public interest component.

[56] As a general proposition, the decision to issue a licence does not raise an issue of public importance: Accettone Funeral Home Ltd. v. Ajax Crematorium and Visitation Centre and Bereavement Authority of Ontario, 2021 ONSC 4081 (Div. Ct.), at paras. 29, 44 and 50. The issuance of the licence may be of great importance to the person who applies for the licence, but it is not an issue of public importance.

[57] The licence in the present case is somewhat different than an ordinary licence because of the statutory context. The FLTCA provides for public consultation and the Director determined that public consultation was required. I accept that this indicates that the present licencing decision does have a public interest component that merits public consultation by the government. But that is not the same thing as whether the legal issues raised by the Applicants present an issue of public importance.

[58] Nor does everyone who participated in the public consultation process thereby acquire public interest standing to judicially review the decision that follows. There are no limits to who may participate in a public consultation. Over 200 submissions were received by the government in this public consultation process.

[59] There are, however, real limits to who may bring an application in court, and limits to who may participate as an intervenor. “The law of standing is designed to balance access to courts with the preservation of judicial resources, and to ensure that proper parties are before the court to argue matters” Ontario Place Protectors v. HMK in Right of Ontario, 2024 ONSC 4194, at para. 16. As the Supreme Court of Canada held, “It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a (sic) well-meaning organizations pursuing their own particular cases...”: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, at 252.

(ii) Do the Applicants have a genuine interest in the matter at issue?

[60] I am not satisfied that Catherine Parkes has a “real stake or genuine interest” in the outcome of this Application. Her father’s experience at Orchard Villa and his death during the first wave of COVID has spurred her involvement in long-term care advocacy in Ontario, but not every advocate is entitled to public interest standing. She has no direct interest in the new facility that is proposed, and no real stake in the outcome of this case.

[61] The OHC is a long-standing public interest advocacy group representing more than 500 member organizations, and, if it had the legal capacity to commence this Application, might well qualify as having a genuine interest in the matter at issue. The OHC is, however, an unincorporated coalition; it is not a juridical person and therefore lacks the legal capacity to commence this Application: Ontario Health Coalition and Advocacy Centre for the Elderly v. His Majesty the King in Right of Ontario, 2025 ONSC 415, at paras. 32-39.

[62] After this case was argued, Centa J. released his decision in Ontario Health Coalition, an application challenging the constitutional validity of certain provisions of the More Beds, Better Care Act, 2022, S.O. 2022, c. 16 (referred to in the decision as “Bill 7”).

[63] Centa J. held that the OHC was not a juridical person and did not have the legal capacity to commence the application. He stated, at para. 33:

To have legal capacity to commence or continue this application, the [Ontario Health] Coalition must be a natural person, a corporation, or a body that has been given that capacity by statute. The Coalition is none of those things. It is an unincorporated association, which has no legal status apart from its individual members and cannot sue or be sued as an entity absent legislation providing otherwise. [Footnotes omitted.]

[64] In reaching this conclusion, Centa J. distinguished between cases in which unincorporated associations wish to participate as an intervener rather than the party commencing the proceeding. After reviewing the relevant cases, he stated, at paras. 36-38:

However, in each of these cases, the court distinguished between permitting an unincorporated association to participate in a civil proceeding as an intervener and permitting an unincorporated association to commence a proceeding. Chief Justice Dubin noted that it was not as important whether the Evangelical Fellowship was a legal person, because it only sought to intervene in an otherwise properly constituted proceeding….

Similarly, McMurtry C.J.O. commented that an objection to an unincorporated association participating as an intervener was an objection “more of form than substance,” when the association can make a useful contribution to the argument of the appeal as an intervener.

Here, the Coalition brings this application in its own name. It did not seek leave to intervene, either as a party or as a friend of the court. It did not seek a representation order. Having chosen to take the benefits of not incorporating, the Coalition must accept the corresponding burdens, which include not being able to commence litigation in its own name. [Footnotes omitted.]

[65] Following the release of Ontario Health Coalition, the parties to this Application were invited to make additional written submissions on the issue of standing.

[66] The OHC submits that its lack of legal-person status should not bar the court from granting public interest standing, and, in the alternative, requests that the court make a representation order.

[67] The OHC contends that there is no bar to the exercise of the court’s discretion to permit an unincorporated citizen group from being granted standing under Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA). It notes that s. 1 of the JRPA defines “party” as including “a municipality, association of employers, a trade union or council of trade unions which may be a party to any of the proceedings mentioned in subsection 2 (1)”.

[68] In my view, the definition of “party” in s. 1 of the JRPA does not assist the OHC. “[T]he word “includes” does not necessarily require an expansive interpretation extending the definition beyond the itemized list…The word “includes” may, depending on the context, precede a list that exhausts the definition”: Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 O.R. (3d) 321, at para. 52. See also: R. v. Loblaw Groceteria Co. (Manitoba), [1961] S.C.R. 138, per Fauteux J., (concurring); Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24, [2006] 1 S.C.R. 865, at paras. 47-50.

[69] As explained by Ruth Sullivan in The Construction of Statutes, 7th Ed. (LexisNexis Canada, 2022), at s. 4.04[3]:

While definitions that begin with “includes” are non-exhaustive in the sense that they do not displace the ordinary meaning of the defined term and often enlarge it, they are exhaustive in the sense that, for the definition to apply, the person or thing in question must come either within the ordinary meaning of the defined term or within the meaning of the terms following “includes”.

[70] In the case of the JRPA, the specific bodies referenced are sui generis. Municipalities are government bodies that exercise statutory powers that are subject to judicial review. An “association of employers, a trade union or council of trade unions” are all bodies with juridical status for certain purposes: see s.108 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. As the Supreme Court of Canada explained in International Longshoremen’s Association, Local 273 v. Maritime Employers’ Association, [1979] 1 S.C.R. 120, at pp. 135-37:

Federal and provincial labour relations statutes alike have been interpreted by the courts in the same general way as Farwell J. interpreted the United Kingdom legislation in the Taff Vale case, supra, and over the years the concept has crystallized in our law whereby trade unions and employer organizations are deemed to have been constituted by the Legislature as legal entities for the purpose of discharging their function and performing their role in the field of labour relations. . . .

[71] The inclusion of those bodies in s. 1 of the JRPA does not assist the OHC in this case. The OHC does not fall within the meaning of those terms nor share any of the legal attributes of those specifically referenced bodies.

[72] In advancing this argument, the OHC relies on the comments of Koehnen J. in The Conservative Party of Canada v. Trost, 2018 ONSC 2230 (Div. Ct.), at para. 73, in which he left unanswered “the issue of the status of the [Conservative Party of Canada] to be a respondent” in an application for judicial review. He stated that the definition of “party” was an inclusive definition, and that there was “ample case law supporting jurisdiction over unincorporated associations for the purposes of ensuring that they adhere both to their internal rules and to the rules of natural justice”. Koehnen J. did not decide the issue of standing but referred the jurisdictional question to the panel of the Divisional Court scheduled to hear the application for judicial review.

[73] The full panel of the Divisional Court in Trost v. Conservative Party of Canada, 2018 ONSC 2733, quashed the application on the basis that the Divisional Court lacked jurisdiction to hear the application seeking relief against the Conservative Party of Canada. In quashing the application, the Divisional Court held, at paras. 27-29 and 32, that those cases that had previously allowed an application for judicial review against a voluntary association were wrongly decided. Given this decision, I find the earlier comments by Koehnen J. that relied on those now rejected cases to be unhelpful in the context of this case.

[74] In the alternative, the OHC asks that the Court grant a representation order under Rule 12.08 of the Rules of Civil Procedure, which provides:

12.08 Where numerous persons are members of an unincorporated association or trade union and a proceeding under the Act would be an unduly expensive or inconvenient means for determining their claims, one or more of them may be authorized by the court to bring a proceeding on behalf of or for the benefit of all.

[75] “Act” under Rule 12.08 “means the Class Proceedings Act, 1992”: r. 12.01.

[76] Apart from the timing of this request, the difficulty here is that the OHC has not identified which person or member should be named as the representative plaintiff. I do not read Rule 12.08 as authorizing the Court to name the “unincorporated association” as the representative plaintiff. Rather, it authorizes the Court to permit one or more members to bring the action on behalf of the unincorporated association: Lawrence v. International Brotherhood of Electrical Workers, 2017 ONCA 321, 138 O.R. (3d) 129, at para. 16.

(iii) Is this a reasonable and effective means of bringing the case to court?

[77] In addressing the third factor, that is, whether this is a “reasonable and effective” means to bring the issue before the court, the court must take a practical and pragmatic approach: see Downtown Eastside, at paras. 47, 60. In assessing the third factor, courts should examine whether the issue will be presented in a sufficiently concrete and well-developed factual setting.

[78] To the extent that the Applicants’ challenge is limited to the adequacy of the consultation process, they have advanced a sufficiently concrete factual setting. They have not, however, advanced “a serious justiciable issue” – see the discussion of this issue below.

[79] To the extent that the Applicants challenge the Minister’s and the Director’s decision to grant a conditional undertaking to issue a licence to Southridge, the factual context is less developed. That is because the issuance of the undertaking is an interim step under the licencing regime. Courts are generally hesitant to interfere with an ongoing administrative process. This factor might be less significant if either of the Applicants met the test for private interest standing.

(iv) Conclusion Re: Standing

[80] Assessing and weighing the public interest factors cumulatively, I conclude that neither the OHC nor Catherine Parkes qualifies for public interest standing, and I would dismiss the Application on that basis.

Alternative – the Substantive Merits

[81] The Court heard from both parties with respect to both the standing and the substantive merits of the Application for Judicial Review. Given that we heard both issues, I will consider the substantive issues in the event that I am incorrect on the standing issue.

Standard of Review

[82] The parties agree that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 23. The onus is on the Applicants to demonstrate that the decision is unreasonable. A reasonable decision is one that is transparent, intelligible and justified in light of the evidentiary record: Vavilov, at paras. 15, 126. It is not the role of this Court to re-weigh or reassess the evidence considered by the decision maker: Vavilov, at para. 125.

[83] There is no standard of review applicable when dealing with issues of procedural fairness. The duty of procedural fairness is flexible and context-specific. The question is whether the Applicants were afforded the requisite level of procedural fairness in light of the nature of the decision, the statutory scheme, the importance of the decision to the Applicants, the legitimate expectations of the Applicants and the procedure followed by the Director: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 23-27.

Analysis

[84] In support of their position, the Applicants have filed the affidavit of Dr. Pat Armstrong, a sociologist who claims to be an expert in “the field of health care and social services”. Dr. Armstrong takes the position that the Minister’s decision was not reasonable. She opines that the Minister provides virtually “no indication of what was taken into account in respect to the public interest generally, or in respect to the specific questions of concerning the balance of not-for-profit and for-profit care or the past conduct”. It is clear from her affidavit that she strongly disagrees with the Minister’s decision and would have preferred that the government explore “effective ways to support proposals from municipal and non-profit homes with far better records than Orchard Villa at providing quality care.”

[85] The Respondent challenges the admissibility of Dr. Armstrong’s affidavit on several grounds. Firstly, a party can supplement the record on a judicial review only if the new evidence is necessary to show an absence of evidence on an essential point, or to establish a breach of natural justice that is not evident from the record of the proceedings below: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (Ont. C.A.).

[86] Moreover, the Respondent argues that Dr. Armstrong is not qualified to opine on the public interest and lacks sufficient independence and impartiality. She is an advocate for publicly funded long-term care homes, and much of her affidavit trespasses into the realm of legal argument. It is inappropriate for a witness to provide evidence, whether opinion or otherwise, that constitutes argument in support of that party’s position on the issues that are to be decided by the court: Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 (Div. Ct.), 350 D.L.R. (4th) 720, at para. 123. For example, Dr. Armstrong was asked to review the Record of Decision and opine on whether “there is an absence of evidence on an essential point or points relevant to the decisions of the Minister or the Director”. This is a legal question for the Court’s determination: it is not for an expert to assess the adequacy of the record relevant to the Minister’s decision: Lovell v. Ontario (Minister of Natural Resources and Forestry), 2022 ONSC 423 (Div. Ct.), at para. 8.

[87] In offering her opinion, Dr. Armstrong reviewed only those parts of the record that were provided to her by the Applicants’ lawyers, who acknowledge that “given the voluminous nature of the Record, her understanding of what it contained or failed to contain was primarily based on the information and advice of Counsel, but also on her own reading and research on the matter”. This admission by the Applicants significantly undermines Dr. Armstrong’s objectivity and analysis.

[88] In the context of this case, para. 299 of the concurring decision of Abella and Karakatsanis JJ. in Vavilov is particularly apposite:

Courts, therefore, must carefully probe challenges to administrative decisions to assess whether they amount, in substance, to a mere difference of opinion with how the administrative decision-maker weighed or prioritized the various factors relevant to the decision-making process. Allegations of error may, on deeper examination, simply reflect a legitimate difference in approach by an administrative decision-maker.

[89] In my view, the Applicants’ case is exactly that: a difference of opinion with how the Minister and the Director weighed or prioritized the various factors relevant to the decision-making process.

[90] It is clear that the FLTCA grants the Minister broad discretion to “determine whether or not there should be a long-term care home in an area, and how many long-term care home beds there should be in an area” by “considering what is in the public interest”. Although the legislation lists several factors that the Minister should “take into account”, it does not indicate that any one factor is determinative or outweighs all others. The court’s assessment of “reasonableness” must be made in the context of the statutory scheme under which the decision was made.

[91] As the Supreme Court stated in Vavilov, at para. 110:

If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. [Emphasis added.]

[92] Section 101 of the FLTCA provides that the Minister “may restrict who may be issued a licence based on what the Minister considers to be in the public interest, having taken into account… the effect that issuing the licence would have on the balance between non-profit and for-profit long-term care homes.” Again, the legislation is permissive in this regard.

[93] The balance between not-for-profit and for-profit long-term care is a controversial policy issue on which reasonable people may disagree. The legislation does not impose any particular result, but leaves that determination to the Minister. Assuming that Dr. Armstrong’s expertise is relevant to the legal issues in this case, it is not surprising that the Applicants were able to find an expert who disagrees with the Minister’s and Director’s decisions and who would have preferred a different outcome. That does not, however, make the Minister’s decision unreasonable. There is nothing in the legislation that precludes for-profit long-term care homes, and certainly nothing in the relevant statutory provisions that would require the result preferred by Dr. Armstrong and the Applicants.

[94] The Minister’s decision in this matter was very much the kind of broad public interest policy decision described the Federal Court of Appeal in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, at para. 28:

Public interest determinations based on wide considerations of policy and public interest, assessed on polycentric, subjective or indistinct criteria and shaped by the administrative decision makers’ view of economics, cultural considerations and the broader public interest—decisions that are sometimes characterized as quintessentially executive in nature—are very much unconstrained.

[95] The Applicants also argue that the Minister’s decision contains material omissions. In this regard, paras. 128 and 301 of Vavilov are relevant:

Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” …, or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” ... To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice.

Review of the decision as a whole is especially vital when an applicant alleges that an administrative decision contains material omissions. Significantly, and as this Court has frequently emphasized, administrative decision-makers are not required to consider and comment upon every issue raised by the parties in their reasons.

[96] The FLTCA does not require the Minister or the Director to give reasons for their decisions to issue a licence or an undertaking to issue a licence. In contrast, the Director is required to give reasons under s. 101(2) if the Director decides that a person is not eligible to be issued a licence, and that decision is subject to appeal by the person denied the licence. As a general proposition, the decision to grant or not grant a licence has the greatest impact on the person who applied for the licence, and it is the licence applicant, not the general public, who is granted greater procedural protection: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 25; Accettone Funeral Home Ltd., at paras. 29, 44 and 50.

[97] This is not a case where an administrative tribunal is tasked with making a decision following a hearing. “[N]ot all administrative decision making requires the same procedure”. The requirements of process will “vary with the context and nature of the decision-making process at issue”: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, 423 D.L.R. (4th) 197, at para. 53, citing Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 18.

[98] The Minister and the Director made their respective decisions following a public consultation process, and it is for the Director to determine “how the public consultations …shall be conducted”: FLTCA, s. 109(1). The Supreme Court has consistently confirmed that the content of the duty of procedural fairness will vary depending on the context of the decision. In Baker the Supreme Court stated, at para. 22:

[T]he purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

[99] Persons making submissions to a court or tribunal are subject to time and page limits. The fact that they may not get to say everything they want to say in the time and/or page limit allotted does not render the hearing unfair: Leitch v. Human Rights Tribunal of Ontario, 2024 ONSC 7128 (Div. Ct.), at para. 28. This principle applies with even greater force to a public consultation process in which hundreds of people may participate.

[100] It is clear from the Record of Decision and the Decision Package that the Minister was provided with the relevant information and was able to consider and weigh the relevant factors in making his decision.

[101] The Minister and the Director were clearly live to the issue of Orchard Villa’s difficulties during the COVID outbreak and considered this as part of their decision-making process. That is one reason why only a conditional undertaking to grant a licence was given by the Director. These concerns are also reflected in the specific conditions imposed by the Director. Thus, even assuming that these factors relate to “Charter values”, as argued by the Applicants, they were considered by the Minister and the Director and factored into the conditional undertaking given.

Conclusion

[102] The Applicants have failed to demonstrate that the impugned decisions are unreasonable or that there was any denial of procedural fairness in the consultation process conducted by the Ministry. The consultation process was appropriate to the decision being made. The Minister and the Director clearly took the submissions made in the consultation process into account in their decisions even if the Applicants did not obtain the result they wanted.

[103] Accordingly, the Application is dismissed.

Costs

[104] The Applicants requested an opportunity to make costs submissions. Accordingly, if the parties are not able to agree on costs, the Respondent may serve and file costs submissions of up to 3 pages, plus costs outlines and any offers to settle, within 20 days of the release of this decision, and the Applicants may serve and file responding submissions on the same terms within a further 15 days.

Charney J.

I agree _______________________________ Firestone RSJ.

I agree _______________________________ Davies J.

Released: February 24, 2025