Many regulators rely upon external accreditation bodies to approve educational programs for registration purposes. Those accreditation bodies are often not-for-profit entities that are independent of the regulators themselves. A decision by an accreditation body to refuse or remove the accreditation of an educational program can have significant implications for the educational programs and their students. Are those accreditation decisions subject to judicial review?
The Divisional Court of Ontario addressed that issue in BizTech v Accreditation Canada, 2025 ONSC 2689 (CanLII). The registration regulation of the College of Medical Radiation and Imaging Technologists of Ontario requires applicants to have successfully completed an approved educational program (or equivalent). Under the broad wording of the regulation, the College’s Council passed a policy approving programs accredited by Accreditation Canada. The Court did not express concern about this approval mechanism.
Accreditation Canada withdrew its accreditation of BizTech’s Diagnostic Medical Sonography Program. Effectively, graduates of that program could no longer meet the educational requirement. BizTech sought judicial review of that decision. Accreditation Canada argued that it was a private entity which was not subject to judicial review. The Court dismissed that argument, noting that Accreditation Canada exercised statutory authority as a delegate of the College. The Court distinguished Fawcett v Canadian Chiropractic Examining Board, 2010 ONSC 4903 (Div Ct), which dealt with an independent examination agency, on the basis that “although the regulator relied on these examinations, the respondent did not exercise any delegated statutory authority.” The Court also found that the decision of Accreditation Canada in determining whether the education program would adequately protect the public was of a sufficient public character so as to be appropriately subject to judicial review.
However, that did not end the matter. An agreement between BizTech and Accreditation Canada required them to submit disputes to arbitration rather than to resort to the courts. The Court held that the provision was enforceable, providing a timely and expert method of addressing BizTech’s concerns. Even if the arbitration clause was not enforceable, the Court would have exercised its discretion to stay the application as arbitration was an effective alternative option to judicial review. The Court indicated that the stay of the court proceedings could be lifted if the arbitration process proved ineffective.
This decision indicates that delegating important public interest decisions to third parties may subject those third parties to judicial review.
