Administrative law – Associations and clubs – Governance – Judicial review application – Availability – Public body – definition – Hearings – Remedies – Hearing de novo – Private law remedies
Maltais v. Port of Dalhousie Inc.,  N.B.J. No. 309, 2011 NBCA 84, New Brunswick Court of Appeal, September 22, 2011, A. Deschenes, J.C.M. Richard and B.R. Bell JJ.A.
The Appellant Port of Dalhousie appealed a decision finding that judicial review was available to contest the removal and expulsion of its Respondent Chairperson from the Port’s Board of Directors. The application judge held that there was no meaningful way for the respondent to appeal the Board’s decision to expel him apart from judicial review and thus quashed the Board’s decision. The application judge’s decision was reversed on appeal, on the basis that the Port’s decision making power was not sufficiently of a public character to be subject to the Court’s powers of judicial review. The Court of Appeal went on to order a new hearing in respect of the Respondent’s claim for private law remedies.
The Port of Dalhousie is incorporated as a non-profit body under the Companies Act, R.S.N.B. 1973, c. C 13. One of the stated purposes of the incorporation is to allow the company to acquire and operate a port and wharf in the town of Dalhousie for the benefit of its residents, employees and businesses. The respondent, the former Chairperson of the Board, was removed as Chair and member of the Board after the Board called a special meeting to “deal with the inappropriate conduct of the Chairman”. The respondent challenged that decision and, although he was initially told accommodation might be made for an internal appeal process, several barriers were set up and eventually no appeal was possible. The respondent sought on judicial review to have the decision of the Board of Directors quashed, effectively reinstating him as the Chair of the Board. The application judge held that the respondent had established a “prima facie case for judicial review” because “he has no other recourse except to seek the assistance of the Court to redress a wrong for which there is no other remedy”. When the matter was heard, the application judge identified the central issue as whether or not the situation fell “within the purview of a judicial review…”, noting that the respondent could not sue for wrongful dismissal because he and the other members of the Board are all working pro bono. The application judge further determined that there was no meaningful way for the respondent to appeal the Board’s decision, so he held that judicial review was available. The Port of Dalhousie appealed the judge’s decision quashing the Board’s decision. The appeal was allowed and the Court of Appeal found that the Port of Dalhousie was not a body that exercised statutory powers in the discharge of any regulatory or other governmental responsibilities. While it may have been incorporated to pursue some public good, it is not a creature of statute any different from any other non profit corporation. The decision making powers of the Port of Dalhousie were not statutory. It was a corporation, like others incorporated under the Companies Act, with its own bylaws. While the functions of the corporation may serve a public interest, they were not regulatory in nature. The main function of the corporation was to conduct the business of managing the Port. Like many other corporations that contract with the government and could be said to pursue some public good, the Port’s activities nevertheless remain private in nature. Furthermore, even if it could be said that the Port exercised some powers and duties of a public nature, not all of its decisions would necessarily be open to judicial review. Internal decisions of a corporation regarding its own Board of Directors cannot be said to fall within the sphere of public powers. The public law remedy of judicial review is inapplicable to internal decisions of a non profit organization. The Court of Appeal then contemplated whether the respondent was entitled to private law remedies. Unfortunately, in removing the Board of Director’s decision into the Court and quashing it, the application judge granted a public law remedy to which the respondent was not entitled. The application judge did not go on to consider the private law remedies that were being sought and adjudication of whether the private law remedies would be appropriate in the circumstances. For this reason, the appeal was allowed and a new hearing in respect to the claim for private law remedies in the Respondent’s notice of application was ordered.
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