Page - 219 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

219Governmental Power and COVID-19: The Limits of Judicial Review natural person,”31 it has the inherent authority to enter into contracts, take out newspaper advertisements, and publish guidelines as to how its powers will be exercised. It would be difficult to successfully seek a judicial review of any decision made by the Crown corporation envisaged by Bill C-13 or any contract entered into by the federal or provincial governments in the pursuit of medical supplies or vaccines. Judicial review, which permits the invalidation of governmental decisions, “is reserved for state action.”32 Courts typically weigh several factors in the balance in determining whether a particular decision is subject to judicial review,33 but, in general, decisions to enter into contracts are sin- gularly unlikely to qualify as state action.34 Absent a violation of a statutory provision, allegations of “fraud, bribery, corruption or other kinds of grave misconduct,”35 or some other special marker of public importance, courts will not be able to justify subjecting exercises of dominium to judicial review. There is a recent strand of Commonwealth case law that sug- gests the principles of public law can be injected into contractual arrangements. Where contractual discretionary powers exist, they must be exercised in accordance with public law principles.36 This strand has not yet been woven into the tapestry of Canadian law.37 Even if Canadian courts were to do so, it is not clear that contracts for the supply of vital medical equipment, antiviral drugs, or vaccines would contain any discretionary powers into which courts could inject principles of public law. And, of course, such principles could only be invoked by an unhappy party to a contract with the federal or provincial governments, who would be seeking to advance its com- mercial interests, not the public interest. 31. Pharmaceutical  Manufacturers  Assn  of  Canada  v  British  Columbia  (Attorney  General) (1997), 149 DLR (4th) 613 at para 27, [1998] 1 WWR 702. 32. Highwood  Congregation  of  Jehovah’s  Witnesses  (Judicial  Committee)  v  Wall, 2018 SCC 26 at para 12. 33. See Air  Canada  v  Toronto  Port  Authority  and  Porter  Airlines  Inc, 2011 FCA 347 at para 60 [Air Canada]. 34. See e.g. ibid at para 52 (contract for janitorial services); Ferme ViBer inc v Financière agricole  du  Québec, 2016 SCC 34 at para 46 (government stabilization program); People  for  the  Ethical  Treatment  of  Animals,  Inc  v  City  of  Toronto, 2020 ONSC 2356 at paras 38-49 (contract for advertising on bus shelters). 35. Irving  Shipbuilding  Inc  v  Canada  (Attorney  General), 2009 FCA 116 at para 62. 36. See Braganza  v  BP  Shipping  Ltd, [2015] UKSC 17, [2015] 1 WLR 1661. 37. See Paul Daly, “The Limits of Public Law: JW  v  Canada  (Attorney  General), 2019 SCC 20” (2019) 32:3 Can J of Admin L & Prac 231.