Judicial review does not apply to political parties.

  • November 27, 2018
  • Christopher Wirth and Alana Spira

The Ontario Divisional Court in Trost v Conservative Party of Canada, 2018 ONSC 2733, provided another welcome clarification on what can be subject to judicial review when it held that a political party is not subject to judicial review as it is not a state actor, and in so doing refused to follow an earlier decision of the court which had judicially reviewed a decision of the New Democratic Party.


Bradley Trost was a candidate in the Conservative Party of Canada leadership contest. When Mr. Trost entered the race, he signed a contract in which he agreed to be bound by specific procedural rules, and was given access to membership lists and agreed that his campaign would only use the list for the purposes of the leadership contest. The list was subsequently leaked and the CPC determined that Mr. Trost was responsible for the leak. Mr. Trost sought to judicially review this determination, arguing that the CPC failed to follow its own rules in investigating the misconduct.

This case was initially heard before a single judge of the Divisional Court, Justice Koehnen. Justice Koehnen declined to determine the jurisdictional issue and instead referred the issue to a full panel of the Divisional Court.

Divisional Court decision

Before a full panel of the Divisional Court, Mr. Trost relied mainly on a body of cases stemming from the decision of the Ontario Court of Appeal in Setia v Appleby College, 2013 ONCA 753. In Setia, the Court of Appeal set out a number of factors, originally developed in Air Canada v Toronto Port Authority, 2011 FCA 347, to determine whether a decision is public or private, as follows:

  • the character of the matter for which review is sought
  • the nature of the decision-maker and its responsibilities
  • the extent to which a decision is founded in and shaped by law as opposed to private discretion
  • the body’s relationship to other statutory schemes or other parts of government
  • the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity
  • the suitability of public law remedies
  • the existence of a compulsory power
  • an “exceptional” category of cases where the conduct has attained a serious public dimension

On Mr. Trost’s interpretation of that case, these factors can be used to determine if a matter before a private actor is of sufficient public importance to warrant judicial review.

Mr. Trost also relied heavily on the Divisional Court’s earlier decision in West Toronto United Football Club v Ontario Soccer Association, 2014 ONSC 5881. In that case, the court quashed the decision of the Ontario Soccer Association on judicial review, finding that the Association had a broad impact on the public and was subject to judicial review.

This line of reasoning was also applied by the Divisional Court in Graff v New Democratic Party, 2017 ONSC 3578. In Graff, an individual was rejected as a candidate in a leadership race. The individual sought judicial review of the decision. The court in Graff went through the factors set out in Setia. While the court acknowledged that the relationship between the potential candidate and the party was governed by a private contract, it found that political parties have a broad public impact, are “woven into the network of government” and receive significant public funds, and thus their decisions should be subject to judicial review.

In response, the CPC argued that judicial review is available only if the conduct being challenged involved direct or indirect governmental action. As the CPC is a private voluntary organization it cannot be subject to judicial review.

The CPC relied mainly on Knox v Conservative Party of Canada, 2007 ABCA 295, a decision of the Alberta Court of Appeal. In that case, members of the party sought judicial review of an internal arbitration proceeding. The analysis in Knox noted that “a tribunal must be discharging public duties or exercising power of a public nature in order to be subject to judicial review.”

The CPC also relied on Adams v Canada, 2011 ONSC 325, and Deeb v Investment Industry Regulatory Organization of Canada, 2012 ONSC 1014, both decisions of the Divisional Court, where the courts in both cases found that because the organizations in question were not exercising a statutory power, their decisions could not be judicially reviewed.

The Divisional Court began its decision by noting that s 2(1) of the Judicial Review Procedures Act R.S.O. 1990, c. J.1 allows the it to hear applications for judicial review but does not set out what can be judicially reviewed. The common law is used to determine when a court has jurisdiction to hear a judicial review.

The court indicated that Setia is the leading case on jurisdiction for judicial review. However, the court rejected Mr. Trost’s interpretation of this case. It emphasized that the correct interpretation of Setia requires exercise of a statutory power or government decision in order for the decision to be subject to judicial review.

The interpretation of Setia put forward by the Divisional Court is consistent with the recent Supreme Court of Canada Decision of Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, which was released shortly after this decision, in which the Supreme Court similarly emphasized that the interpretation of Setia and cases flowing therefrom that allow judicial review of a private decision are incorrect.

The court also explicitly commented that it thought Graff was wrongly decided as the relationship was contractual and the party was not exercising a public decision making power.

The court then went through the Setia factors and noted that the two parties had a contract, that this is not a matter that is of broad importance to the public and that the CPC is not a government actor. The court cited Knox for the proposition that while a political party is given public powers under the Canada Elections Act, a political party is essentially a private organization.

The court also noted that the decision is shaped by the rules of a leadership contest and that the CPC is not making a decision under a law or regulation but rather under a private contract. The court also highlighted that “political parties are not controlled or significantly influenced by a public entity.”

Finally, the court commented on the “exceptional category of cases” noting that there is no category that permits judicial review of a private association, even if the “public” is affected.

Consequently, the Divisional Court held that the decision of CPC was not a public one and accordingly, was not subject to judicial review.


  1. Actions of political parties, even though they may impact the public, are not subject to judicial review as political parties are private associations.
  2. After both this decision, and the Supreme Court’s decision in Highwood, it is clear that:
    1. Judicial review is limited in scope to decision by public actors,
    2. Setia should not be used to determine whether a decision by a private actor is “sufficiently public” in character to allow it to be subject to judicial review. On a correct interpretation, Setia should only be used to determine if a decision by a public body is sufficiently public in character to be properly subject to judicial review.
  3.  Courts when performing judicial review need to “stay in their lane” so to speak and not try to judicially review decisions by private actors. There are other remedies for private actors and the court should not try to apply public remedies where they are not applicable.

Christopher Wirth is a partner and Alana Spira an articling student with Keel Cottrelle LLP