In BizTech v Accreditation Canada, 2025 ONSC 2689 ("BizTech"), the Ontario Divisional Court has offered rare guidance on the relationship between judicial review and arbitration, including when the latter is appropriate in circumstances where the former may be engaged. Below, we review this case.
Background
BizTech Institute Inc ("BII"), the applicant, was a private, for-profit career college that offered a Diagnostic Medical Sonography Program (the "DMS Program") to the public.
The College of Medical Radiation and Imaging Technologists of Ontario (the "College"), one of the respondents, regulated the practice of the profession of medical radiation and imaging technology in Ontario, which included the requirement that candidates successfully complete a medical radiation and imaging technology program approved by the College or by an entity approved by the College. For a program to be an approved program, it must be accredited by Accreditation Canada, another respondent with whom the College contracted for the carrying out of program evaluations.
For four years, the DMS Program offered by BII was only conditionally accredited by Accreditation Canada due to identified deficiencies. On January 27, 2025, after further evaluation by Accreditation Canada, it accorded the DMS Program a "Not Accredited" status (the "Decision").
The Superintendent of Career Colleges (the "Superintendent"), the last respondent in this proceeding, was responsible for regulating career colleges in Ontario and had previously granted BII's DMS Program a conditional approval. One of the conditions was that BII maintain the DMS Program's accreditation status with Accreditation Canada. On March 31, 2025, after being informed of the Decision, the Superintendent revoked its approval (the "Superintendent's Decision").
BII claimed that this revocation led to dire financial consequences for BII. As a result, BII applied for judicial review of the Decision and the Superintendent's Decision, claiming that the Decision was procedurally unfair and unreasonable.1
In response, the respondents raised three preliminary issues.2 The third issue – which is the focus of this case comment – was as follows: Accreditation Canada brought a motion to stay the judicial review proceedings pursuant to section 7(1) of Ontario's Arbitration Act, relying on an arbitration clause in the contract signed between BII and Accreditation Canada.
As readers are aware, section 7(1) of the Arbitration Act provides as follows:
7 (1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding.
The Divisional Court's Decision
The Court relied on the two-part test from Peace River Hydro Partners v Petrowest Corp3 to determine whether the application should be stayed in favour of arbitration:
- Whether the technical requirements for a mandatory stay of proceedings were met; and
- Whether any of the statutory exceptions under the Arbitration Act
The Court held that Accreditation Canada was able to meet all the technical requirements for a mandatory stay of proceedings in favour of arbitration – particularly given the breadth of the arbitration agreement and the fact that the contract incorporated multiple documents by reference, thus creating a broad scope of arbitrable matters – turning to whether any of the statutory exceptions applied.
The Statutory Exceptions
One argument advanced by BII was that judicial review of statutory decisionmakers could not be supplanted by a privately-negotiated arbitration agreement because otherwise, statutory decisionmakers could delegate away decisions to private parties in order to avoid judicial oversight, and judicial review would become arbitral review.
In response, Accreditation Canada noted that even if the Decision were judicially reviewable, judicial review was discretionary (i.e. at the Court's discretion) and did not displace the provisions of the Arbitration Act.
The Court agreed that judicial review was protected by section 96 of the Constitution Act, and that legislative lawmakers could not remove the courts' ability to conduct judicial review.
However, this constitutional right to seek judicial review did not mean that there was an unqualified right to require the Court to undertake judicial review regardless of the nature of the question before it.
While BII argued that section 6(1) of the Judicial Review Procedure Act ("JRPA") indicated that an application for judicial review "shall" be made to the Divisional Court, the Court found this argument unpersuasive. Specifically, section 6(1) only made the Divisional Court the mandatory proper forum to hear judicial review applications in Ontario – it did not make judicial review itself mandatory (in other words, section 6.1 only mandated the forum in which such review would occur).
Nothing in the Arbitration Act precluded a stay of proceedings from applying to judicial review proceedings.
The Court explained that giving effect, in the right case, to arbitration agreements even where a public body exercising statutory authority was involved, was consistent with: (1) the primacy of arbitration under the Arbitration Act; and (2) the exercise of judicial discretion where there was an appropriate alternative remedy to judicial review.
To assess the appropriateness of the alternative remedy, the Court was to consider: (1) if the remedy was adequate; but also (2) whether judicial review was appropriate.
In this case, the Court referred to the typical factors in the exercise of discretion set out by the Supreme Court in Strickland v Canada (Attorney General), including:4
... the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost.
In this case, many of the factors supported a finding that arbitration was an adequate alternative remedy to judicial review:
- Arbitration was convenient and flexible;
- The arbitration was designed to be conducted expeditiously;
- The remedial capacity of the arbitrator was broad, and included the awarding of costs; and
- BII could nominate three independent, impartial potential arbitrators with the appropriate experience and/or expertise, and Accreditation Canada could select one to be the arbitrator.
Finally, the Court noted that an alternative forum or remedy need not to be identical to what was available on judicial review in order to qualify as an adequate alternative.
Therefore, the Court found that arbitration was an adequate alternative remedy to address BII's grievances.
Commentary
The main takeaway from BizTech is how the availability of judicial review is affected where there is a valid arbitration agreement between the parties (and, of course, depending on the exact terms of the arbitration agreement).
As expressed by the Court, what is fundamentally protected by section 96 of the Constitution Act is access to judicial review, rather than an unqualified right to judicial review.5 Thus, even where judicial review is available, in appropriate circumstances, arbitration may be used as an adequate alternative to judicial review (subject to the Court's discretion). This appears to have been particularly true in this case given that the scope of the arbitration was so broad, and the contract encompassed so many documents, that it is unsurprising that the subject matter of the arbitration could have been construed as substantively appropriate for judicial review as well.
That being said, BII's position on this issue was persuasive in its own right, insofar as judicial review is (as noted by the Court) not only a power but a responsibility of the courts. In that regard, the issue of judicial review being attenuated is a valid concern insofar as referral of such matters to arbitration reduces the court's opportunity to provide guidance. It is a common criticism that arbitration deprives the public of case law guidance that would otherwise be available through litigation, and that arguably applied with equal force in this case.
Similarly, the Court's discussion of assessing the adequacy of the alternative to judicial review (e.g. arbitration) is an interesting one. Given that the subject matter in this case pertained to issues of procedural fairness, it therefore raises the question of whether and to what extent the Court might scrutinize the choice of arbitrator or arbitral rules in order to assess whether arbitration is, in fact, a suitable alternative.
For example: would arbitration be a suitable remedy if the parties select an arbitrator without legal training? Presumably not, although this implied restriction on the qualifications of the arbitrator would then be difficult to reconcile with the fundamental arbitration principle of respecting the parties' choice.
In any event, it is important to note that to at least some extent, the finding in BizTech was tied to the specific factual circumstances of the case. The arbitration agreement was broad because it encompassed issues related to the contract between the parties, and also specified in what specific instances (i.e. disputes regarding a breach of Confidential Information) the parties could submit disputes to a Court. As well, the accreditation process was outlined in a detailed way within the contract.
It remains an open question whether a less-broadly worded arbitration provision (i.e. only dealing with issues arising from the contract, rather than related to the contract), or a less comprehensive contract could lead to a different result.
In addition, the Divisional Court was faced with technical arguments from BII that a different Court might have found more persuasive as a justification for prioritizing judicial review. By clarifying the nature of provisions like section 6(1) of the JRPA, the Court in this instance confirmed a narrow scope for section 6(1), limiting its mandatory nature to the choice of forum to hear judicial review applications rather than categorically mandating judicial review.
This is an sensible distinction insofar as other statutes contain similar language. For example, rule 68.01(1) of Ontario's Rules of Civil Procedure indicates that an application to the Divisional Court or to the Superior Court for judicial review under the JRPA shall be commenced by notice of application.
Finally, BizTech serves as a reminder to a party seeking to rely on an arbitration clause that whether arbitration is an appropriate alternative remedy (as compared to judicial review) is ultimately at the Court's discretion. This discretion is based in part on the factors in Strickland and also whether arbitration is adequate in the circumstances, in comparison to whether judicial review is appropriate.
Even where an arbitration process may not be as transparent as a judicial review process (as was argued by BII), it is not necessary that the processes be identical for the Court to find that the alternative process is adequate in the circumstances.6
Consequently, parties attempting to rely on arbitration clauses within their agreements when an issue arises – as well as parties seeking to rely on judicial review as an exception to an agreed upon arbitration clause – would be well advised to carefully review such clauses within their agreement to understand whether the dispute is within the scope of the arbitration clause.
Footnotes
1. The reason why BII focused on the judicial review of Accreditation Canada's Decision is because BII and the Superintendent agreed that BII's judicial review of the Superintendent's Decision was dependent on the success of the judicial review of Accreditation Canada's Decision: see paragraphs 47-48 and 156.
2. The Divisional Court rejected the other two preliminary arguments: (1) that the Decision was not subject to judicial review as it is a private contractual matter; or (2) even if the decision were subject to judicial review, there were adequate alternative remedies for BII such that the Court should decline to hear the application for judicial review: see paragraphs 8 and 75-86.
3. We have previously written about Peace River here.
4. Strickland v Canada (Attorney General), 2015 SCC 37 at para 42.
5. BizTech v Accreditation Canada, 2025 ONSC 2689 at para 141.
6. Ibid at para 149.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
