Motion granted. The nature of the Métis Nation of Ontario’s responsibilities and relationship with the government, does not transform the private voluntary organization’s membership decisions into public law decisions that are subject to judicial review.

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Métis Nation of Ontario (“MNO”) has moved to quash this application for judicial review on the ground that this Court has no jurisdiction. The underlying application for judicial review sought an order to set aside the decision of a genealogist, that denied the applicant’s appeal from earlier decisions that refused his application for membership in the MNO. The applicant’s mother and sister became registered citizens of the MNO in 2002. In 2003, the Supreme Court of Canada (“SCC”) released its decision in R v Powley, [2003] 4 CNLR 321 (“Powley”). The SCC, although emphasizing that there is no universal definition of “Métis”, provided a framework for determining who is Métis for the purposes of s 35 of the Constitution Act, 1982. Thereafter, a new definition of “Métis” was effectively adopted by the MNO. This application for judicial review does not relate to s 35 rights. When the new definition was implemented by the MNO, however, current citizens such as the applicant’s mother and sister were grandfathered and therefore did not need to meet the new requirements. New applicants, including family members as in this situation, however, must now meet the new requirements.

The test on a motion to quash an application for judicial review asks whether it is plain and obvious or beyond doubt that the judicial review application would fail (Adams v Canada (AG), 2011 ONSC 325 (“Adams”); Certified General Accountants Assn of Canada v Canadian Public Accountability Board (2008), 233 OAC 129 (Div Ct)). In this case, it is beyond the jurisdiction of this Court. As found in prior decisions, the Divisional Court has no jurisdiction under s 2 of the Judicial Review Procedure Act to judicially review any decision outside the public law sphere (Trost v Conservative Party of Canada, 2018 ONSC 2733; Adams; Deeb v Investment Industry Regulatory Organization of Canada, 2012 ONSC 1014). The purpose of judicial review is to ensure the legality of state decision making (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (“Wall”). In Wall, the SCC underscored the importance of distinguishing between “public” in the generic sense and “public” in the public law sense. Broad public impact is insufficient to bring a decision within the public law sphere.

All corporations are creatures of statute. The corporation must be discharging public duties or exercising powers of a public nature before it is subject to judicial review (Knox v Conservative Party of Canada, 2007 ABCA 295). The MNO Act does not confer public duties on the MNO or delegate governmental responsibilities to it. The MNO Act and its history do not transform the decision at issue into a public law decision that is subject to judicial review. The MNO participates specifically on behalf of its citizens, not on the basis that it represents all Métis (“Powley”). Provincial and federal governments may accept an MNO card based on the MNO registry of citizens, but an MNO card is not an exclusive requirement. The MNO calls its members citizens but nothing turns on the use of that nomenclature.