In 2020, Yazdan Khorsand applied for a job as a special constable with the Toronto Community Housing Corporation (TCHC) — a position he had previously held before voluntarily leaving for another job. As part of the TCHC application process, Khorsand was required to pass a background investigation conducted by the Toronto Police Service (TPS).
Khorsand was subsequently told the TCHC was unable to move forward with his application because he did not pass the prescreen background check with TPS. Khorsand asked both the TPS and the TCHC for information about why he failed the prescreening process. He also made an access-to-information request to the TPS under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).
The disclosed records included reports relating to nine interactions between Khorsand and the TPS, although none of them revealed any criminal behaviour on his part. Three reports described Khorsand, who was born in Iran, as “brown,” “Middle Eastern” or “Persian.”
Khorsand then brought an application for judicial review, challenging the TPS prescreening decision and its decision not to disclose reasons or information it relied upon in making its decision. He argued those decisions violated the administrative law duty of procedural fairness, but the TPS board and Toronto police chief both argued the prescreening decision was made in the context of Khorsand’s attempt to secure employment with the TCHC and was, therefore, not of a sufficiently public character to be subject to judicial review.
A three-judge panel of the Ontario Divisional Court concluded that judicial review was available, but Ontario Court of Appeal Associate Chief Justice J. Michal Fairburn has overturned that ruling, siding with the TPS in its arguments.
Justice Fairburn wrote that she was not persuaded that the prescreening decision was sufficiently public to render it reviewable, citing three reasons: the prescreening was part and parcel of the TCHC’s hiring process, the decision’s impact on a broad segment of the public does not transform it from a private decision into a public decision and public law remedies were not suitable.
“I see the pre-screening decision as a discretionary employment-related decision, which draws it within the private sphere,” she wrote. “[And] on the record before this court, it cannot be said that the existence of a human rights violation is evident or that it transforms a discretionary employment-related decision into a public decision.”
Justice Fairburn noted the focus of the Divisional Court majority’s reasons was on the disclosure of pre-existing records contained in police databases, even those over which the police service has no control. But she added it was also important to keep in mind that background investigations can extend well beyond information contained in police databases.
“In this very case, Mr. Khorsand signed an authorization that permitted any person or organization in receipt of it to provide disclosure of information about him to the Toronto Police Service, including the conveying of ‘opinions’ that they may have,” she wrote. “This is akin to a more classic job reference check and something that may be recorded in the notes of the person conducting the check.”
If such notes informed the reason for Khorsand’s failure, the Divisional Court majority’s reasons dictate they would have to be disclosed, Justice Fairburn wrote.
“In my view, that would place a chill on receiving honest and objective feedback about a potential TCHC community patrol officer,” she wrote. “This all comes back to the point that an initial background investigation is done for purposes of making a hiring decision, a process that is not susceptible to public law remedies and one that would be rendered vulnerable were it to become susceptible to judicial review.”
As a result of her findings, Justice Fairburn quashed the order of the Divisional Court and dismissed the application for judicial review. She was joined by appeal court Justice Janet Simmons in the ruling, as well as Justice Peter Daley of the Ontario Superior Court, who was sitting on an ad hoc basis (Khorsand v. Toronto Police Services Board, 2024 ONCA 597).
Glen Chochla of Chochla Law, who represented Khorsand, said in an email he is still reviewing the decision and had no comment on it. Counsel for the TPS did not respond to a request for comment.
If you have any information, story ideas or news tips for Law360 Canada, please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.