) ) VENNGO INC. Applicant – v. –, 2013 ONSC 1036

CITATION : Venngo Inc. v. Ontario Media Development Corp. and Attorney General of Ontario , 2013 ONSC 1036 DIVISIONAL COURT FILE NO.: 412/12 DATE: 20130214 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., MOLLOY AND HARVISON YOUNG JJ. BETWEEN: ) ) VENNGO INC. Applicant – and – ONTARIO MEDIA DEVELOPMENT CORPORATION AND THE ATTORNEY GENERAL OF ONTARIO Respondents )) )) )) )) ))) Curtis R.

Stewart and David Muha , for the Applicant Lise Favreau and Eric Wagner , for the Respondents ) ) ) HEARD at Toronto: February 14, 2013 HARVISON YOUNG J. (orally) [ 1 ] The standard of review applicable to the question of whether this falls within the regulation is that of reasonableness. This is a question that concerns OMDC’s

interpretation of its home legislation and is exactly the type of issue that falls within OMDC’s specialized expertise. The question of whether the primary purpose of a website is to “educate, inform or entertain” lies at the core of the OMDC’s function. [ 2 ] OMDC based its decision on its view that the primary purpose was marketing and promotion. It came to this decision based on a long series of discussions with the applicant during which it clearly and carefully considered the nature of the product. [ 3 ] All or virtually all websites in existence supply information or knowledge.

If “inform” was given such a broad meaning in this context, the requirement that the primary purpose of an interactive digital media product be to “educate, inform or entertain the user” would be without purpose as virtually every website would qualify. [ 4 ] OMDC’s decision on the ineligibility of the applicant’s product was reasonable and we see no basis for interfering. [ 5 ] Its refusal to grant the certificate particularly in the context of the preceding discussions with the applicant over many months was transparent, justified and intelligible and fell within the range of possible outcomes. (see Dunsmuir v.

New Brunswick , 2008 SCC 9 at para. 47 and the Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] S.C.C. 61). [ 6 ] The applicant also argues that in refusing to provide it with the 2004 opinion, OMDC breached its duty of procedural fairness owed to it. Without seeing the opinion, Venngo suggests it could not properly respond to the OMDC’s position. [ 7 ] The applicant did not press this argument during oral submissions. It fails for a few reasons. First, and as the respondent submitted, this was an administrative decision and not a judicial or quasi- judicial decision.

Given the history of communication between the party and the discussion about the primary purpose of the product which pervades all the communication from February, 2011 until the letter of ineligibility was issued on June 7, 2012, this was the central issue discussed. Throughout the correspondence, OMDC

repeatedly expressed its concern that the Perks platform’s primary purpose was to market and promote products. Second, the decisionreferred to was not in any way related to Venngo’s specific application and indeed was written well before Venngo came into existence. [8] In any event, it is clear from the authorities that in this context, where the decision was administrative, the full panoply ofjudicial and quasi-judicial entitlements was not triggered. (See: Baker v. Canada (Minister of Citizenship and Immigration, (SCC), [1999] 2 S.C.R. 817 and International Woodworkers of America, Local 2-69 v.

Consolidated-Bathurst PackagingLtd. (SCC), [1990] 1 S.C.R. 282). What was required was that the basis for the denial and some indication of how theOMDC arrived at that basis be articulated to Venngo. This was clearly achieved through both the final decision letter and thecorrespondence between the parties leading up to that letter. [9] For the foregoing reasons, the application is dismissed. THEN R.S.J. [10] For oral reasons by Harvison Young J., the application is dismissed. The respondent submits that costs in the amount of$10,000 is reasonable in the circumstances.

The applicant agrees and accordingly costs in the amount of $10,000, all inclusive areawarded to the respondent. HARVISON YOUNG J. THEN R.S.J. MOLLOY J. Date of Reasons for Judgment: February 14, 2013 Date of Release: March 1, 2013 CITATION: Venngo Inc. v. Ontario Media Development Corp. and Attorney General of Ontario , 2013 ONSC 1036 DIVISIONAL COURT FILE NO.: 412/12 DATE: 20130214 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURTTHEN R.S.J., MOLLOY AND HARVISON YOUNG JJ. BETWEEN:

VENNGO INC. Applicant – and – ONTARIO MEDIA DEVELOPMENT CORPORATION AND THE ATTORNEY GENERAL OF ONTARIO Respondents ORAL REASONS FOR JUDGMENT HARVISON YOUNG J. Date of Reasons for Judgment: February 14, 2013 Date of Release: March 1, 2013