Can Competitors Challenge Regulatory Outcomes?

An owner of a funeral home leased land beside it to a crematorium. The crematorium began to offer funeral services in competition with the funeral home. The funeral home objected and sued in court. The crematorium applied to the regulator for a licence to offer funeral services (something it did not initially do). The regulator granted the licence with conditions. The funeral home sought judicial review of the regulator’s decision saying that the regulator had not adequately considered the previous illegal practice of the crematorium. The issue before the Court was whether the funeral home had standing to challenge the regulator’s decision in respect of a different organization: Accettone Funeral Home Ltd. v. Ajax Crematorium and Visitation Centre and Bereavement Authority of Ontario, 2021 ONSC 4081 (CanLII), https://canlii.ca/t/jg8cm.

The Court held that a competitor has no “standing” to bring an application for judicial review challenging the regulator’s licensing decision. The Court held that the funeral home did not have a legal “interest” enabling it to challenge the decision. The Court said:

… this application is really about a business seeking to have the licence of a competitor revoked so it can eliminate the competition. Losing a market advantage purely because it now faces a competitor next door does not provide [the funeral home] a basis for seeking declaratory relief.

The Court also said that there was no public interest in the issues in dispute in which the Court should granting standing to allow the funeral home to challenge the decision.

There is no evidence of [the funeral home]’s real and continued interest in the broader issue of regulation of the funeral industry. [the funeral home]’s real interest is with respect to ACVC’s licence. This is a transparent attempt to have the licence of a competitor revoked so it can eliminate the competition…. To allow [the funeral home] who has no direct interest in a matter to challenge the routine issuance of a licence would potentially open the floodgates to frivolous challenges being made by competing businesses any time a licence was granted to a competitor.

The funeral home’s remedy lay in civil court for any breach of contract that might exist.

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