Crown prerogative could not be used to avoid declaration that contract breached

JUDICIAL REVIEW

Crown prerogative could not be used to avoid declaration that contract breached

Parties entered into agreement that specified that Crown would appoint representative of First Nations to Board of Directors of Ontario Lottery and Gaming Commission (OLG). Appointment was to be made pursuant to procedures of province for making appointments. No appointment was made. Ontario First Nations sought arbitration. Crown and OLG brought motion to strike out claim asserting that as result of continuing operation of Crown prerogative Crown was not required to make appointment. Arbitration Panel found Crown prerogative did not prevent it from adjudicating whether province breached agreement by failing to appoint representative to Board of Directors of OLG. Crown and OLG appealed decision. Claim for declaration was justiciable. Crown prerogative could not be used to avoid declaration that contract was breached. Agreement created legal relationship that was independent of Crown prerogative and subject to declaration that it was breached. Agreement created legitimate expectation of process, not substantive decision. Exercise of prerogative held not promise of procedural fairness in granting of honour or making appointment. Agreement intervened and showed promise of process. Agreement created legitimate expectation that procedures of province respecting appointments would be followed. Agreement did not promise appointment of anyone in particular and did not reflect on rights of any individual. Crown might act in recognition of declaration, but it did not have to.
Ontario First Nations (2008) Limited Partnership v. Ontario (Minister of Aboriginal Affairs) (Dec. 13, 2013, Ont. S.C.J., Lederer J., File No. CV-13-471630, CV-13-471633, CV-13-471638, CV-13-471639) 236 A.C.W.S. (3d) 629.