By Esther S.J. Oh and Barry W. Kwasniewski

On August 1, 2024, the Court of Appeal for Ontario released its decision in Khorsand v. Toronto Police Services Board. The case addressed whether “a security screening decision” conducted by a police service for a third-party employer – the Toronto Community Housing Corporation (TCHC) – was subject to judicial review. The decision helps clarify when such decisions, especially those affecting employment, fall outside the scope of judicial oversight, and provides important guidance for charities and not-for-profits (NFPs) that rely on police-conducted background checks in hiring.

The case arose from Yazdan Khorsand's 2021 application to work as a special constable with TCHC. As part of the application process, the Toronto Police Service (TPS) conducted a background check. Mr. Khorsand had previously held this position with TCHC, and had successfully completed the required background check and received a special constable appointment from the TPS Board in 2018, conditional on him remaining employed with TCHC. It was unclear whether, at the time of his 2018 appointment, the TPS Board knew that Mr. Khorsand had failed an Ontario Provincial Police (OPP) background check in 2017 while applying for a correctional officer role.

In the latter half of 2018, Mr. Khorsand left his position as a special constable with TCHC to work as a transit safety officer with Metrolinx, which required him to reapply for special constable status. In February 2019, Metrolinx informed Mr. Khorsand that he would not be recommended as a special constable because of “concerns” raised in the OPP security clearance investigation.

Mr. Khorsand then reapplied to the TCHC in 2020 and the TPS conducted a “pre-screen background check,” which involved reviewing the results of his previous background check. Finding no material change in circumstances that occurred after his 2019 failed background check, the TPS informed Mr. Khorsand that he did not pass the pre-screening, effectively ending his application.

Mr. Khorsand sought information about the reasons for his failure, submitting access to information requests to the TPS under the Municipal Freedom of Information and Protection of Privacy Act. The disclosed records revealed several interactions between Mr. Khorsand and the TPS, none of which indicated any criminal behavior. However, three reports described Mr. Khorsand as “Brown”, “Middle Eastern”, or “Persian”, which he interpreted as grounds for potential racial discrimination.

Dissatisfied with the lack of transparency, Mr. Khorsand applied for judicial review, arguing that the TPS’s pre-screening decision violated the administrative law duty of procedural fairness. The Divisional Court delivered a split decision. The majority found the pre-screening decision to be of a sufficiently public character to be judicially reviewable, citing the TPS Board’s statutory power to appoint special constables. They also expressed concern about potential systemic discrimination in law enforcement. The dissenting judge argued that the pre-screening decision was essentially a private employment matter and therefore not subject to judicial review.

The Court of Appeal overturned the Divisional Court’s majority decision. It found the TPS was acting as an agent for TCHC, a third-party employer, and that the decision was private in nature – not reviewable by the courts. The Court also warned that subjecting such screenings to judicial review could risk disclosing sensitive law enforcement material. While acknowledging discrimination concerns, the Court stated such matters are better addressed by the Human Rights Tribunal of Ontario.

The Court of Appeal’s decision highlights the tension between the principles of transparency and accountability in public administration and the need to protect confidential information and respect the autonomy of private employment decisions. The Court of Appeal’s analysis of the “public character” requirement for judicial review provides valuable guidance for understanding the boundaries of judicial oversight.

For charities and NFPs, Khorsand suggests that organizations may have some ability to rely on the outcomes of police-conducted background checks and security screenings – particularly when they are part of a pre-employment screening process – without being held accountable where a hiring decision is made based on the outcome of the background check. While organizations are recommended to proceed with fairness and transparency wherever possible in order to reflect best practice, this decision clarifies that such screening, when conducted by law enforcement at the organization's request, will likely be treated as part of a private employment matter and not likely subject to judicial review.

​Read the April 2025 Charity & NFP Law Update