When will Courts Review Decisions made by Private Bodies for Procedural Fairness?

Written by: Martin Abramowski, Student-at-Law

Judicial review is a process where courts review decisions made by administrative boards and tribunals. One function of judicial review is to assess whether administrative decisions are made in accordance with procedural fairness. That is, where a decision affects “the rights, privileges or interests of an individual¹, then that administrative body owes a duty of fairness to the individual, and a court can review whether that administrative decision was made in a procedurally fair manner.

However, courts are hesitant to review decisions made by private bodies, such as religious organizations, private universities, cultural organizations, sports associations, and political parties.² Such bodies, and the decisions they make, are not public enough to typically warrant judicial review, even when their decisions are made in an arguably unfair manner.

The Purpose of Judicial Review

The purpose of judicial review is “to ensure the legality of state decision making”, which means that only decision makers who exercise power on behalf of the government are typically subject to review. Furthermore, a public body’s decision must also be of a “sufficiently public character” for a court to review it. For a decision to be public, it is not enough that it have a “broad public impact.” Rather, it must involve “questions about the rule of law and the limits of an administrative decision maker’s exercise of power.”³

Judicial Review of Decisions made by Private Bodies

Despite the foregoing, decisions made by private bodies can be subject to judicial review in very narrow circumstances, and only to determine whether they were procedurally fair. While an individual does not have a free-standing right to procedural fairness with respect to decisions made by private bodies, a court may review such a decision for procedural fairness where it has impacted some legal right of the individual, such as a property, contractual, or statutory right. However, even where a legal right has been affected, a court may decline to review the private body’s decision to the extent that it involves an issue that is not justiciable. Justiciable issues are those which a court deems are appropriate for it to decide on. For example, courts have typically refrained from deciding on issues of “religious dogma.”⁴

If a private body’s decision meets these very narrow circumstances where a review for procedural fairness is appropriate, that review will usually only focus on whether the private body adhered to its own internal procedures for making decisions, and only sometimes consider the fairness of those procedures themselves.⁵ In deciding whether a private body has followed its own internal procedures when making a decision, a court will ask:⁶

1. Did the private body follow its own rules?

2. Was anything done contrary to natural justice?

3. Was the decision made in a bona fide manner?

Conclusion

If you are dissatisfied with a decision made against you by a private body, it is important to consider whether you have a legitimate legal right that has been affected by it. If so, you may be able to apply for judicial review to determine whether that decision was made in a procedurally fair manner. Keep in mind that a court may still decline to review the decision if it deems it to be non-justiciable.

Alternatively, if you have a legal right which was impacted by the decision, you may have grounds for a lawsuit against the private body. However, a successful lawsuit will only award you with monetary damages; a court will not, for example, force the private body to rehear your matter and make a new decision, or substitute its own decision for that of the private bodies, as these are public law remedies that are available through judicial review, and not litigation.

1. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

2. Boucher v. Métis Nation of Alberta Assn., 2009 ABCA 5.

3. Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26.

4 .Ibid; Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22.

5. Ibid.

6. Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165.