Case concerns a man's application for employment as constable
The Ontario Court of Appeal has recently ruled against allowing judicial review of a security screening decision made by the Toronto Police Service (TPS) at the request of the Toronto Community Housing Corporation (TCHC).
This matter concerned a man’s application for employment as a special constable. The case raised questions about the public nature of employment-related decisions by public bodies and whether such decisions were subject to judicial scrutiny.
The respondent in this case had a background in law enforcement and previously worked as a special constable with the TCHC. He applied for a similar position in 2020. As part of the TCHC’s hiring process, the TPS conducted a background check on him. In 2021, he learned that his application would not proceed because he did not pass the pre-screen background check with the TPS.
The respondent requested information from both the TPS and the TCHC to understand the reasons for the rejection. He then filed an access-to-information request under Ontario’s Municipal Freedom of Information and Protection of Privacy Act, 1990. The TPS disclosed records of nine of his interactions with police, none of which indicated any criminal behaviour. He noted that some reports described him as “Brown”, “Middle Eastern”, or “Persian”.
The respondent sought judicial review of the TPS’s pre-screening decision. He argued that it violated the duty of procedural fairness under administrative law.
The TPS Board and the Toronto police chief opposed and alleged that the decision was part of an employment process and thus not subject to judicial review as it did not have a sufficiently public character.
Divisional Court’s decision
The Divisional Court’s decision was split. The majority quashed the pre-screening decision and remitted it back to the TPS Board. The majority ruled that judicial review was available. The majority found the TPS’s decision sufficiently public in nature due to the statutory powers involved and the potential for systemic discrimination in law enforcement.
The majority expressed concern about the unregulated use of police records and the risk of perpetuating systemic discrimination. The majority concluded that the TPS Board breached its duty of fairness by not giving the respondent the reasons for his failed pre-screening or the information used to make the decision.
In contrast, the dissenting judge viewed the pre-screening decision as a private employment-related decision and thus not subject to judicial review. The dissent highlighted the need to protect sensitive law enforcement information and expressed concern about opening the door to similar requests that could burden the TPS and other public bodies.
Appeal court’s decision
In Khorsand v. Toronto Police Services Board, 2024 ONCA 597, the Ontario Court of Appeal sided with the dissent, allowed the appeal, and quashed the Divisional Court’s order.
The court held that the TPS's pre-screening decision was not subject to judicial review because it was part of the TCHC’s hiring process, which was inherently private. The court emphasized that hiring decisions, even when made by public bodies, did not typically engage the public law principles justifying judicial review.
The court also addressed concerns about the potential impact of the decision on broader public interests, particularly systemic discrimination. The court acknowledged the importance of preventing discrimination but decided that this concern could not transform a private employment-related decision into a public one subject to judicial review.
The court noted that allowing public law remedies in this context could compromise the integrity of background investigations, particularly the protection of sensitive law enforcement information.
