CITATION: 376965 Ontario Limited v. Regional Municipality of Durham Police Service Board, 2025 ONSC 3084
OSHAWA COURT FILE NO.: DC-24-00001552-00JR
DATE: 20250523
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
376965 ONTARIO LIMITED o/a JIM’S TOWING and BOB’S TOWING
Applicant
– and –
THE REGIONAL MUNICIPALITY OF DURHAM POLICE SERVICES BOARD and 884262 ONTARIO INC. o/a B&G TOWING & RECOVERY
Respondents
Oleg M. Roslak, for the Applicant/Responding Party
Alexandra Heine, for the Respondent/Moving Party, The Regional Municipality of Durham Police Services Board
John W. Montgomery, for the Respondent, 884262 Ontario Inc. o/a B&G Towing & Recovery
HEARD: February 19, 2025
REASONS FOR DECISION
DE SA J.:
Overview
[1] Jim’s Towing has brought an application under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”) seeking to challenge the decision of the Fleet and Quartermaster Services Unit of the Durham Regional Police Service (“DRPS”) to award the 2024 towing service contract to a company other than Jim’s Towing (the “Decision”). Specifically, Jim’s Towing seeks certiorari and mandamus to force the Durham Regional Police Services Board (“DRPSB”) to breach its current towing service contracts and award them to Jim’s Towing.
[2] Jim’s Towing maintains that the Decision could have been the result of corruption or an abuse of power by a senior Durham Regional Police officer, Detective Constable Johnathan Hood (“DC Hood”), who was biased by a personal financial interest in the award of the towing contract to B&G Towing.
[3] DRPS has moved for an order quashing Jim’s Towing’s application for want of jurisdiction. DRPS maintains that the decision Jim’s Towing is challenging was a commercial decision – not a public one. The decision was based on the business needs of DRPS, was entirely in the manager’s discretion and was not prescribed by any policies, directives, by-laws, regulations or statutes. The decision is not amenable to judicial review, and thus the application should be quashed.
[4] In the alternative, DRPS has brought a motion to confirm redactions to its responding materials should the application be allowed to proceed. DRPS maintains that the redacted information is subject to public interest privilege, and accordingly has been redacted to protect the interests engaged.
[5] I have considered the materials filed by both parties on the motion, and the submissions of counsel.
[6] I agree with DRPS that the decision at issue was a commercial decision – not a public one and accordingly outside the proper scope of this Court’s jurisdiction under the JRPA.
[7] The application is quashed.
[8] The reasons for my decision are outlined below.
Summary of Facts
The Request for Proposals
[9] DRPS is a police services board that serves the Regional Municipality of Durham (“Durham Region”).
[10] DRPS uses a contracted towing company when they attend to the scene of a vehicle collision where criminal activity is involved, a fatality occurs, or for Highway Traffic Act and Criminal Code impounds and seizures. In all other cases (fender benders, stalled vehicles, car accidents, where there is no criminality involved, etc.), vehicle owners utilize private towing companies subject to the Towing and Storage Safety and Enforcement Act, 2021 (TSSEA) rates.
[11] Although DRPS had renewed its contracts with Jim’s Towing in the past[^1], Fleet Services, the administrative body within DRPS responsible for contract administration of its towing contracts, made the decision to issue a Request for Proposals for all Tow Areas in Durham Region.
[12] On October 31, 2023, DRPS issued a Request for Proposals (“2023 RFP”) for towing service contracts for the 2024 year (the “2024 Contract”).
[13] The 2023 RFP requirements were determined by Ronald DeMerchant, the Manager of Fleet and Quartermaster Services and a civilian member of the DRPS. Mr. DeMerchant oversees various external service agreements and material purchase contracts, including service contracts between DRPS and the external towing companies whose services DRPS employs. He developed the 2023 RFP requirements based on his experience, judgment and the needs of the DRPS. The 2023 RFP requirements were not prescribed by any policies, directives, by-laws, regulations or statutes. There is no instrument that says that a DRPS RFP for towing services (or any other procurement contracts) must contain certain provisions.
[14] The requirements in the 2023 RFP included the following: the company’s tow capacity; the suitability of the company’s indoor facilities; the price of the company’s tow and storage fees; the number of staff employed by the company; the suitability of the company’s office; and office equipment. The RFP also required bidders to be companies in good standing, to have current and satisfactory insurance, and to have established office premises in compliance with zoning requirements.
[15] The 2023 RFP also required that owners and employees undergo background checks against (i) any criminal records and (ii) information held by DRPS’s Intelligence Branch. Mr. DeMerchant reserved the sole right to disqualify individuals based on those background checks and no appeal process was provided. It is a practice that Mr. DeMerchant follows because it is imperative that Fleet Services work with companies and employees whom they trust. The towing companies on contract have access to DRPS’s secure facilities, their employees handle evidence, and receive information about the details of certain car-related investigations that are not publicly available.
[16] Mr. DeMerchant automatically disqualified from the 2023 RFP process those companies whose owners were deemed by the Intelligence Branch to be “not suitable”. The exclusion is automatic given that Mr. DeMerchant is not privy to the information. The employees and owners of the company are also not given access to any details or records regarding the background checks as they are confidential.
[17] The 2023 RFP made clear that decisions to award a service contract are made at the sole discretion of the DRPS, “whose decision shall be final” and “any protest regarding… any award of contract that may or may not be made, will not be entertained, and the award will not be subject to appeal” (Clause 8).
Outcome of Process
[18] Ten towing companies submitted proposals in response to the 2023 RFP, including Jim’s Towing. On April 29, 2024, DRPS’s Fleet and Quartermaster Services Unit (“the Unit”) sent letters to the two successful bidders for the 2024 Contract – Alpine Towing and B&G Towing and Recovery – advising them of the Unit’s decision to award them the 2024 Contract. The same day, the Unit sent letters to the unsuccessful bidders, including Jim’s Towing, advising them of their decision not to award them the 2024 Contract.
[19] The Decision further stated expressly that Jim’s Towing “did not achieve the highest-ranking under the evaluation methodology described in the solicitation.” When cross-examined regarding this issue, however, Mr. DeMerchant, who issued the Decision, acknowledged that Jim’s Towing was never in fact ranked relative to other bidders at all because it was “disqualified on another area.”../../../../../DESAC/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/QE7K0SVJ/376965 Ontario v. DRPS Board - Factum-applicant - converted to Word.docx - _bookmark17
[20] It has since been acknowledged by DRPS that Jim’s Towing was excluded based on background checks conducted by the Intelligence Branch.
The Judicial Review brought by Jim’s Towing and the Allegation of Bias
[21] Jim’s Towing commenced an application under the JRPA seeking to challenge the Decision. The Applicant alleges that DC Hood may have improperly influenced the process which led to the Decision. The Applicant points to the following facts in support of its position:
(a) Jim’s Towing had made a formal complaint against DC Hood for allegations he made regarding Jim’s Towing’s contract compliance. The October 31, 2023 RFP followed almost immediately after Jim’s Towing hired counsel to make the formal complaint against DC Hood.
(b) DC Hood attended personally with Melissa LaRonde, the Impound Coordinator with Fleet Services, at the premises of Jim’s Towing, and at site visits to all the bidding towing companies in the 2023 RFP, as part of the pre-qualification process for bidders.
(c) DC Hood is also associated with the Intelligence Branch of DRPS that was involved with the background checks that specifically excluded Jim’s Towing from contention.
(d) DC Hood has a long-standing friendship with the owner of the successful bidder for Oshawa, B&G Towing and owned an auto-detailing business (Triple Shine) that looks to have had some business connections with B&G Towing in the past.
(e) Very shortly after the Decision, DRPS commenced a Police Services Act hearing against DC Hood in respect of 34 separate counts of Deceit, Discreditable Conduct, and Insubordination, all of which are detailed in a Notice to Attend a Hearing Pursuant to Part V of the Police Services Act, dated June 7, 2024.
Issue to be Determined
[22] The parties disagree on the test on a motion to quash on jurisdictional grounds.
[23] Jim’s Towing takes the position that the test on a motion to quash an application for judicial review is whether it is “plain and obvious” or “beyond doubt” that the application cannot succeed: Ye v. Toronto District School Board, 2023 ONSC 2918, at para. 18: Democracy Watch v. Ontario Integrity Commissioner, 2021 ONSC 7383 (Div. Ct.), at para. 27.
[24] Jim’s Towing maintains that the jurisprudence makes clear that this standard applies to issues of standing, jurisdiction, justiciability or other defects on the face of the Application: Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778 (Div. Ct.), at para. 8.
[25] DRPS disputes this position and maintains that the test on a motion to quash a judicial review application on the basis that the Court does not have jurisdiction is not the plain and obvious test.[^2] That test “cannot be applied to determinations of jurisdiction and standing.”[^3] Rather, the Court must simply decide whether or not it has jurisdiction.[^4]
[26] In Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150 (Div. Ct), the Court explained, at para. 18:
While the “plain and obvious” test has been applied in Ontario on motions to quash applications for judicial review, those have been in cases where the grounds to quash the motion have been prematurity, jurisdiction, standing, collateral attack, abuse of process, justiciability or other defects on the face of the application. See: Deeb; Adams v. Canada (Attorney General), 2011 ONSC 325, [2011] O.J. No. 207 (Div.Ct.); Lockridge v. Ontario (Director, Ministry of the Environment, 2012 ONSC 2316, 350 D.L.R. (4th) 720 (Div. Ct.). This makes sense, because the “plain and obvious” test is the same test that is applied in a Rule 21 motion to strike an action, which deals with whether there is a defect in the proceeding on its face. An examination as to whether a matter is moot is quite different. It requires a consideration of whether a legal controversy between the parties has become moot because of subsequent events. Moreover, when a court considers whether a matter should proceed despite being moot, the court must inquire into the details of the relief sought, the context surrounding the application and whether it is a matter of public importance. These factors are generally not considered when applying the “plain and obvious” test.
[27] In my view, the sole issue to be determined on this motion is whether this Court has jurisdiction under s. 2(1) of the Judicial Review Procedure Act to judicially review the decision of the Fleet Services unit to award the towing contract to a proponent other than Jim’s Towing. The jurisdictional question would obviously precede any ultimate assessment on the merits, and accordingly is the first question to be considered here.
[28] In any event, the distinction drawn between the parties is one of no moment as addressing the jurisdictional question inevitably resolves the question as to whether or not it is “plain and obvious” or “beyond doubt” that the application cannot succeed.
Analysis
General Legal Principles
[29] The Supreme Court in Dunsmuir[^5] commented broadly on the function of judicial review, at para. 28:
By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [Emphasis added.]
[30] More recently, in Wall,[^6] the Supreme Court of Canada addressed the limited availability of judicial review. Writing for a unanimous Court, Rowe J. stated that “the purpose of judicial review is to ensure the legality of state decision making.” In keeping with this purpose, he defined the boundaries of judicial review by using the distinction between public and private law. As he explained, 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. [Emphasis added.]
[31] As noted above, public bodies routinely make decisions that are private in nature, such as renting premises and engaging in contracts for services. The jurisprudence makes clear that in making these contractual decisions, the public body is not exercising “a power central to the administrative mandate given to it by Parliament” and “do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.” As the Court, in Wall, explained at para. 15:
Further, while the private law remedies of declaration or injunction may be sought in an application for judicial review, this does not make the reverse true. Public law remedies such as certiorari may not be granted in litigation relating to contractual or property rights between private parties: Knox, at para. 17. Certiorari is only available where the decision-making power at issue has a sufficiently public character: D.J.M. Brown and J.M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 1:2252. [Emphasis added.]
[32] In Air Canada v. Toronto Port Authority,[^7] Air Canada had sought judicial review of the Toronto Port of Authority’s issuance of two bulletins – the first announcing a process through which the Toronto Port Authority intended to award slots at the City Airport, and the second announcing an RFP process to allocate slots and otherwise grant access to commercial carriers seeking access. The central question was whether the decision to issue the bulletins, and the conduct described in the bulletins, was judicially reviewable.
[33] To assist in determining whether the matter engaged the court’s public law jurisdiction, the Court identified a non-exhaustive list of factors to apply, at para. 60, including:
(a) the character of the matter for which review is sought;
(b) the nature of the decision maker and its responsibilities;
(c) the extent to which a decision is founded in and shaped by law as opposed to private discretion;
(d) the body’s relationship to other statutory schemes or other parts of government;
(e) the extent to which a decision maker is directed, controlled or significantly influenced by a public entity;
(f) the suitability of public law remedies;
(g) the existence of compulsory power; and
(h) an “exceptional” category of cases where the conduct has attained a serious public dimension. 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.
[34] The Court explained further:
In determining the public-private issue, all of the circumstances must be weighed: Cairns v. Farm Credit Corp., 1991 13600 (FC), [1992] 2 F.C. 115 (T.D.); Jackson v. Canada (Attorney General) (1997), 7 Admin. L.R. (3d) 138 (F.C.T.D.). There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether 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. [Emphasis added.]
Other Relevant Jurisprudence
[35] The Courts have routinely applied the factors from Air Canada to public tender decisions to find that decisions to award contracts are not judicially reviewable.
[36] In Ainsworth Electric Co.,[^8] the Board of Governors of Exhibition Place decided to appoint an in-house electrical contractor from whom all exhibitors would have to purchase electrician services. The Board sought proposals from contractors who wanted to be awarded the contract for the in-house electrical work. The applicant submitted a proposal but was unsuccessful. Since the applicant had previously been contracted by exhibitors to provide electrician services at Exhibition Place, it lost a very substantial amount of business. It launched an application for judicial review. In response, the Board moved to quash that application on the basis of jurisdiction.
[37] The Divisional Court found that it did not have jurisdiction to order certiorari. The Court explained:
In this case, the Board, in carrying out its mandate to operate, manage and maintain Exhibition Place, came to the conclusion that there would be only one electrical contractor on its premises, and that it should be someone other than Ainsworth. That was a commercial decision. If that decision amounted to an actionable wrong against Ainsworth, it is a matter for the courts in the ordinary way. But I am unable to find anything in the Judicial Review Procedure Act, or in any of the cases cited by counsel, to suggest that commercial transactions are subject to judicial review. Indeed, the decisions to which I have made reference lead me to the view that the courts have no authority, in the exercise of their prerogative jurisdiction, to review a commercial business decision.
[38] In Wauzhushk Omigum Nation,[^9] the applicant sought to judicially review decisions of the Ontario Lottery and Gaming Corporation (“OLG”). These decisions were made pursuant to the Ontario Cabinet’s Directive on Modernization, which was issued through a Cabinet Minute and which directed the Ontario Minister of Finance to work with OLG to increase net profits to Ontario by optimizing land-based gaming.[^10] Cabinet instructed OLG to shift operations of its gaming sites to private operators through a competitive procurement process.[^11] The Divisional Court found that the manner in which OLG, a Crown corporation, chose to seek bids was not subject to judicial review because it was a commercial matter and not a matter of public law.[^12] The Court specifically noted at para. 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.
[39] In Wise Elephant,[^13] Wise Elephant Family Health Team was an interdisciplinary team of health care professionals providing community-based health services in Brampton. It sought to judicially review the decision of the Ontario Minister of Health and Long-Term Care terminating its funding agreement. Wise Elephant argued that Ontario’s decision to terminate the agreement was made in bad faith and for an improper purpose: to cover up fraud by Wise Elephant’s former Board of Directors, and to avoid scrutiny of Ontario’s negligence in failing to stop the fraud.[^14]
[40] Again, the Court dismissed the judicial review application on the basis that the decision to terminate the funding agreement was not a public one.[^15]
[41] In Khorsand,[^16] the Ontario Court of Appeal dealt with a 2021 security screening decision made by the Toronto Police Service (“TPS”) at the request of the Toronto Community Housing Corporation (“TCHC”) in connection with an application for employment as a special constable with the TCHC.
[42] As part of the TCHC application process, Mr. Khorsand was required to pass a background investigation to be conducted by the TPS. Mr. Khorsand was advised that the TCHC was unable to move forward with his application because he “did not pass the pre-screen background check with TPS.”
[43] Mr. Khorsand asked both the TPS and the TCHC for information about why he failed the pre-screening process. He also made an access to information request to the TPS pursuant to the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 (“MFIPPA”). The disclosed records included reports relating to nine interactions between Mr. Khorsand and the TPS. None of the reports revealed any criminal behaviour on the part of Mr. Khorsand. Three reports described Mr. Khorsand as “Brown”, “Middle Eastern”, or “Persian”.
[44] Mr. Khorsand challenged the TPS pre-screening decision and its decision not to disclose reasons or information relied upon in making that decision. Mr. Khorsand alleged those decisions violated the administrative law duty of procedural fairness.
[45] In assessing the suitability of public law remedies, the majority of the Divisional Court pointed to a concern about systemic discrimination. Specifically, the majority noted that absolute discretion may be abused in a way that affects the public at large and a public law remedy through judicial review may be the only available recourse. The Divisional Court concluded the decision was subject to judicial review.
[46] In reversing the decision of the Divisional Court, the Ontario Court of Appeal held that the pre-screening decision was part and parcel of a discretionary employment decision which drew it into the private sphere and accordingly the decision was not judicially reviewable.[^17]
Application to the Facts of this Case
[47] The Applicant submits that the nature of the decision in this case has a sufficiently “public character” to engage the court’s jurisdiction to review the decision. For example, the contracts are in connection with the police service executing their mandate to preserve order and safety on the roads and highways of Durham Region. Charges for towing services, as with many other aspects of towing company operator services, are subject to numerous statutory and regulatory requirements under the Towing and Storage Safety and Enforcement Act (“TSSEA”). Additionally, many of the terms of a DRPS towing contract are focused more on the needs of DRPS in the execution of a policing functions than they are on commercial considerations relating to the retaining of a towing service.
[48] The Applicant points out that courts in Ontario have consistently affirmed that an order in nature of a certiorari to quash a decision is not contingent on the exercise of a statutory power. The courts have also expressly left open the question of whether a government procurement process or contract of a “sufficiently public character” is amenable to judicial review.
[49] The Applicant maintains that the facts here raise serious issues of corruption within the RFP process involving a senior officer in the Durham Regional Police Service exerting influence over the selection process and improper bias to advance a personal financial interest over the public interest, none of which have been properly answered by the DRPS.
[50] I agree with the Applicant that the public law remedies giving relief in the nature of the prerogative writs are not dependent on the presence of a statutory power of decision.[^18]
[51] I also accept that cases involving clear corruption could elevate a public procurement process into the “exceptional” category so as to engage this Court’s jurisdiction to review the conduct at issue. As Stratas JJ.A. explained in Air Canada:
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. [Emphasis added.][^19]
[52] That said, not every case which has public aspects will engage the Court’s public law jurisdiction. Nor will every allegation of impropriety transform a commercial matter into a public concern.
[53] In determining whether the court’s jurisdiction is engaged, the assessment looks at the essential character of the matter for which the review is sought. Is it a private, commercial matter, or is it of broader import to members of the public? As explained in Air Canada, “administrative law principles should not be applied to the resolution of what is, essentially, a matter of private commercial law”.[^20]
[54] Government contracts routinely involve the payment of public funds towards public initiatives and services. These services will also routinely have a significant impact on public welfare in some way. That does not mean these types of decisions will engage the Court’s public law jurisdiction. As the Court explained in Khorsand, at para. 76:
This passage makes clear that it is wrong to apply the Air Canada factors to transform the decision of a private actor – such as a church, sports club, or other voluntary association – into a public decision. In my view, the passage also cautions against characterizing a decision of a public body as public in function simply because a broad segment of the public may be interested in or impacted by it. For instance, a government decision to enter into a contract to purchase property may be of significant interest to, and have an impact on, a broad segment of a community; however, that would not transform the contractual decision into a public one. In other words, it is important to distinguish between “public” in the generic sense and “public” in the sense that the legality of state decision making is at play. [Emphasis added.]
[55] In applying the Air Canada factors here, I am satisfied that the Decision is a commercial one and does not engage this Court’s public law jurisdiction.
[56] The matter for which review is sought is the decision to award a private contract to a for‑profit company. The 2024 Contract with DRPS is a contract to provide towing services for a fee. Jim’s Towing, like the other companies, submitted a proposal with the objective of making money.
[57] The decision-making body here is not an administrative body such as a court or tribunal.
[58] There are no specific statutes or legislative instruments that direct how the Fleet Services Unit (or the DRPSB) is to contract with towing companies or that outline criteria for how the RFP process should unfold. The Decision was discretionary and made in accordance with the terms of the 2023 RFP. Decisions founded upon something other than legislation, such as contract law or business considerations, are generally outside the ambit of judicial review.[^21]
[59] Jim’s Towing is seeking not only certiorari setting aside the Decision, but also mandamus that the 2024 Contract be awarded to it. As such, Jim’s Towing is seeking to compel the termination of the contract with B&G Towing and Alpine Towing, and to compel the Fleet Services Unit to engage a company that it does not wish to engage. The Fleet Services Unit has no obligation to enter into any service contracts for towing, and certainly not with any particular company.[^22]
[60] Neither the Fleet Services Unit nor the DRPSB have compulsory power over Jim’s Towing. Jim’s Towing is free to contract for its towing services anywhere at any time. Its disqualification does not impact its ability to carry on business elsewhere.
[61] Jim’s Towing has alleged a denial of procedural fairness, suggesting that Mr. DeMerchant’s decision was tainted by alleged bias on the part of DC Hood. The evidence filed on the motion, however, makes clear that DC Hood had no part or influence in Mr. DeMerchant’s decision in awarding the contracts. The only involvement DC Hood had was in assessing the tow truck drivers’/operators’ compliance with the TSSEA requirements.
[62] In any event, a denial of procedural fairness would not grant this Court judicial review jurisdiction if, based on Wall and the Air Canada factors, no jurisdiction existed. As addressed in Khorsand, the Applicant cannot transform a private matter into a public one by alleging a breach of procedural fairness.
[63] Speculations on the possibility of impropriety in a screening process/background checks is not a proper basis for this Court to review what is obviously a commercial decision. Moreover, the evident concerns with subjecting a screening process of this nature to judicial scrutiny was directly addressed by the Ontario Court of Appeal in Khorsand, at paras. 103-106:
The majority ordered disclosure, subject only to an undefined process to protect sensitive law enforcement information. This potentially puts the TPS in a bind. If the basis of the TPS’s decision is found in records that were withheld from disclosure based on exemptions unrelated to the protection of sensitive law enforcement information, the TPS may be forced to disclose records not disclosable pursuant to MFIPPA.
I also share the dissent’s view that even requiring the TPS to state that it refuses to disclose records because of investigative concerns could be problematic. Not only could such a requirement inadvertently compromise sensitive law enforcement information, but it is also inconsistent with s. 8(3) of MFIPPA, which states that “[a] head may refuse to confirm or deny the existence of a record” covered by the law enforcement exemption.
If a person who is not hired to work with the TCHC as a community patrol officer can now have access to information that far exceeds what they could obtain under MFIPPA, the potential conflict with MFIPPA is obvious.
And, completely separately, affording a public law remedy here could chill the ability to conduct a proper background investigation.
[64] Having regard to the above, the motion to quash the application for judicial review for want of jurisdiction is granted. The application is quashed.
[65] I will receive costs submissions from the DRPS within three (3) weeks of the release of this decision. Jim’s Towing has two (2) weeks thereafter to respond.
Justice C.F. de Sa
Released: May 23, 2025
CITATION: 376965 Ontario Limited v. Regional Municipality of Durham Police Service Board, 2025 ONSC 3084
OSHAWA COURT FILE NO.: DC-24-00001552-00JR
DATE: 20250523
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
376965 ONTARIO LIMITED o/a JIM’S TOWING and BOB’S TOWING
Applicant
– and –
THE REGIONAL MUNICIPALITY OF DURHAM POLICE SERVICES BOARD and 884262 ONTARIO INC. o/a B&G TOWING & RECOVERY
Respondents
REASONS FOR DECISION
Justice C.F. de Sa
Released: May 23, 2025
[^1]: The Applicant, Jim’s Towing, had been awarded contracts with DRPS for Oshawa and Clarington beginning May 1, 2022, for a one-year term, with a provision for annual renewals by DRPS to as late as December 31, 2026, had DRPS exercised all of its options for renewal under the agreement.
[^2]: TeleZone Inc v. Attorney General (Canada), 2008 ONCA 892, at para. 92, aff’d 2010 SCC 62.
[^3]: Association of Professors of the University of Ottawa v. University of Ottawa, 2017 ONSC 125, at paras. 20-24; Certified General Accountants Association of Canada v. Canadian Public Accountability Board, 2008 1536 (ON SCDC), at paras. 39-40; The Conservative Party of Canada v. Trost, 2018 ONSC 2230, at paras. 6-7.
[^4]: TeleZone Inc v. Attorney General (Canada), 2008 ONCA 892, at para. 92, aff’d 2010 SCC 62; Rules of Civil Procedure, RRO 1990, Reg 194, Rule 21.01(3)(a).
[^5]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[^6]: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 13.
[^7]: Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605.
[^8]: Re Ainsworth Electric Co. Ltd. and Board of Governors of Exhibition Place et al. (1987), 1987 4317 (ON SC), 58 O.R. (2d) 432.
[^9]: Wauzhushk Onigum Nation v. Minister of Finance (Ontario), 2019 ONSC 3491.
[^10]: Wauzhushk Onigum Nation, at para. 2.
[^11]: Wauzhushk Onigum Nation, at para. 2.
[^12]: Wauzhushk Onigum Nation, at paras. 105-111.
[^13]: Wise Elephant Family Health Team v. Ontario (Minister of Health), 2021 ONSC 3350.
[^14]: Wise Elephant, at para. 3.
[^15]: Wise Elephant, at para. 5.
[^16]: Khorsand v. Toronto Police Services Board, 2024 ONCA 597.
[^17]: Khorsand, at paras. 80-84.
[^18]: See Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, at para. 32.
[^19]: Air Canada, at para. 60.
[^20]: Air Canada, at para. 60.
[^21]: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116; Devil’s Gap Cottager (1982) Ltd. v. Rat Portage Band No. 38B, 2008 FC 812, [2009] 2 F.C.R. 276, at paras. 45-46.