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Judicial Review - Adequate Alternative Remedy (2). Peel Standard Condominium Corporation No. 779 v. Rahman
In Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021) the Divisional Court held that issues of procedural fairness are issues of 'law' that justify them being heard on an appeal, and also that deny them being advanced in judicial review as there is an 'adequate alternative remedy' in the appeal:[17] In Tipping v. Coseco Insurance Company, 2021 ONSC 5295 (Div. Ct.), Justice Favreau found that judicial review is not available, absent exceptional circumstances, where there is a statutory appeal not pursued by the applicant. Favreau, J. held at para. 36:Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561. Absent exceptional circumstances, the court will dismiss an application for judicial review where an applicant has not exhausted all alternative remedies: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-70. The Divisional Court has repeatedly dismissed applications for judicial review where a party has not pursued a right or appeal or other available remedies: see, for example, Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948; Worden v. Ontario Municipal Board, 2014 ONSC 7247; Hsieh v Ministry of Community and Social Services et al, 2017 ONSC 3094; and Vangjeli v. WJ Properties, 2019 ONSC 5631. [18] In Tipping v. Coseco Insurance Company the court held at para. 41 that: “Procedural fairness and natural justice, including allegations of bias, are questions of law. An appeal from the LAT on those issues is therefore an obvious adequate alternative remedy.” The same applies to an appeal from the CAT. In Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756 (Div Ct), the court dismissed a judicial review application on the grounds that the applicant had failed to pursue a statutory appeal. The court held at para. 35 that an issue of procedural fairness can be raised on appeal, and allegations of procedural unfairness do not constitute an exceptional circumstance. . Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board
In Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board (Div Ct, 2022) the Divisional Court held that the CAWI's application for judicial review from ACRB rulings was premature as adequate alternative remedies existed in the ACRB reconsideration provisions (SLASTO Rules 18):2. The Applicant Has Not Exhausted its Adequate Alternative Remedies
[38] This Court has the discretion to decline to hear an application where the applicant has not exhausted adequate alternative remedies to the judicial review. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 68-71, the Court of Appeal for Ontario noted that this principle respects administrative decision-making and a legislative intent that a party exhaust internal review processes before asking a court to intervene.
[39] The failure by a party to request that a tribunal reconsider its decision, however, is not an absolute bar to judicial review. Whether reconsideration constitutes an adequate alternative remedy is context specific. In Strickland v. Canada (Attorney General), 2015 SCC 37 at para. 42, the Supreme Court of Canada held that considerations regarding the adequacy of an alternative remedy include the nature of the error alleged, the convenience, expeditiousness and cost of the available remedy, the nature and remedial capacity of the other forum that could deal with the issue, the relative expertise of the alternative decision-maker, and economical use of judicial resources (Labourers’ International Union of North America, Local 183 v. The Daniels Group Inc.,2019 ONSC 3164 at paras. 5-12 (Div. Ct.); United Brotherhood of Carpenters (Local 249) v. Matrix North American Construction Ltd., 2019 ONSC 5647 at paras. 39-42 (Div. Ct.)).
[40] Pursuant to Rule 18.2 of its Common Rules of Practice and Procedure, Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), the Board may reconsider its own decision on its own initiative or at the request of a party on the following grounds:a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result. [41] Following a reconsideration, the Board may dismiss the request or confirm, vary or cancel the impugned decision. Alternatively, it may order that all or part of the matter be reheard (Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), Rule 18.4).
[42] In this case, the Applicant has not explained why the Board’s reconsideration process does not constitute an adequate alternative remedy beyond noting that the adjudicator committed the same or similar errors in another proceeding. The Respondent submits that, in the circumstances of this case, the Board’s reconsideration process constitutes an adequate alternative remedy. This Court ought to decline to consider the application on the ground that the Applicant failed to request a reconsideration.
[43] I agree. . Gill v. College of Physicians and Surgeons
In Gill v. College of Physicians and Surgeons (Div Ct, 2021) the Divisional Court considered the principle of prematurity as it applies to a judicial review application:Is the Application for Judicial Review Premature?
[31] This court has repeatedly held that absent exceptional circumstances, applications for judicial review of decisions of administrative bodies should not be brought until the end of the tribunal’s proceedings and after the party seeking review has exhausted all available effective remedies within the administrative scheme: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 CanLII 3430 (ON SCDC), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738 (Div. Ct.). The rationale for this principle is to avoid a piecemeal approach to judicial review, to allow administrative matters to run their full course before the tribunal, and to have all legal issues arising from the proceeding considered together at their conclusion.
[32] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69, the Court of Appeal explained the basis for the approach as follows:This prevents fragmentation of the administrative processes and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all the administrative decision-maker’s findings: these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [33] Early judicial review is a rare exception and will only be permitted where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceeding without interruption until their conclusions: Lourenco v. Hegedus, 2017 ONSC 3872 (Div. Ct.), at para. 6.
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[39] Relatedly, the principle of adequate alternative remedies precludes a party from seeking judicial review until the administrative process has run its course. Absent exceptional circumstances, a party must pursue all effective remedies that are available in that process, and may come to court only when the administrative process has come to an end or affords no effective remedy: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31.
[40] In Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at paras. 42-43, the Supreme Court of Canada held that for an alternative remedy to be adequate, neither the remedy nor the process had to be identical to those available on judicial review. In determining whether there is an adequate alternative remedy, courts will examine factors such as the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; expeditiousness; and the relative expertise of the alternative decision-maker.
[41] In Volochay, the Court of Appeal found that HPARB review of ICRC decisions constitutes an adequate alternative remedy to judicial review. . Peel Standard Condominium Corporation No. 779 v. Rahman
In Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021) the Divisional Court considered the issue of prematurity when there was an 'adequate alternative remedy' available for an issue of procedural fairness:[14] The preliminary issue is whether this court should exercise its discretion to refuse to hear the judicial review given the Condominium Corporation’s failure to pursue the statutory right of appeal. Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c J.1 (“JRPA”) preserves the court's jurisdiction to judicially review decisions of administrative decision makers "despite any right of appeal." Section 2(5) of the JRPA provides that the Court may refuse to grant any relief on an application for judicial review.
[15] Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy. This court recently held in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct) that a limited right of appeal from decisions of an administrative body to the Divisional Court constitutes an adequate alternative remedy to an application for judicial review and, therefore, the Court should exercise its discretion to hear judicial review applications with respect to those aspects of a decision not covered by the statutory appeal right “if at all, in exceptional circumstances.”
[16] The applicant did not provide an explanation as to why they did not appeal the decision, nor did they cite exigent circumstances that would justify premature judicial review. At the hearing, counsel for the applicant submitted that since the matter involves breaches of procedural fairness, including reasonable apprehension of bias, they decided to proceed by way of judicial review. However, it is clear from this court’s jurisprudence that where there is an appeal on a question of law, issues of procedural fairness and jurisdiction do not constitute exceptional circumstances justifying a decision to by-pass a statutory right of appeal since those issues will be considered as questions of law on an appeal.
[17] In Tipping v. Coseco Insurance Company, 2021 ONSC 5295 (Div. Ct.), Justice Favreau found that judicial review is not available, absent exceptional circumstances, where there is a statutory appeal not pursued by the applicant. Favreau, J. held at para. 36:Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561. Absent exceptional circumstances, the court will dismiss an application for judicial review where an applicant has not exhausted all alternative remedies: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-70. The Divisional Court has repeatedly dismissed applications for judicial review where a party has not pursued a right or appeal or other available remedies: see, for example, Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948; Worden v. Ontario Municipal Board, 2014 ONSC 7247; Hsieh v Ministry of Community and Social Services et al, 2017 ONSC 3094; and Vangjeli v. WJ Properties, 2019 ONSC 5631. [18] In Tipping v. Coseco Insurance Company the court held at para. 41 that: “Procedural fairness and natural justice, including allegations of bias, are questions of law. An appeal from the LAT on those issues is therefore an obvious adequate alternative remedy.” The same applies to an appeal from the CAT. In Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756 (Div Ct), the court dismissed a judicial review application on the grounds that the applicant had failed to pursue a statutory appeal. The court held at para. 35 that an issue of procedural fairness can be raised on appeal, and allegations of procedural unfairness do not constitute an exceptional circumstance.
[19] This court must consider the intention of the Legislature in providing a statutory appeal from the CAT. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court stated that the “polar star” of judicial review is legislative intent, reaffirming the importance of giving effect to the Legislature’s institutional design choices about the scope of judicial oversight: paras. 33-34 and 36. I must give weight to the legislative intent to limit this court’s review of CAT decisions to questions of law only, and to allow the CAT to “function with a minimum of judicial interference” on questions of fact and mixed fact and law: Vavilov at para. 24.
[20] I also consider that the core issues raised by the Condominium Corporation could have been raised as questions of law on the statutory appeal. These include issues about whether the CAT had jurisdiction to consider the application, failures of procedural fairness including a reasonable apprehension of bias, and errors of law relating to damages and costs of enforcement.
[21] This case does not present any exceptional circumstances to justify the court’s interference by way of an application for judicial review. As stated in Yatar at para. 39: “A key question is whether the judicial review is appropriately respectful of the statutory framework and the purposes and policies underlying the statutory scheme.” The intent of the legislature is that decisions of the CAT be appealed on questions of law alone. The proper legal avenue is to pursue the statutory appeal. . Tipping v. Coseco Insurance Company
In Tipping v. Coseco Insurance Company (Div Ct, 2021) the Divisional Court dismissed a judicial review application on grounds of prematurity when a suitable statutory appeal lay unused, even though a ground was of mixed fact and law, and the appeal was restricted to questions of law:[36] Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561. Absent exceptional circumstances, the court will dismiss an application for judicial review where an applicant has not exhausted all alternative remedies: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-70. The Divisional Court has repeatedly dismissed applications for judicial review where a party has not pursued a right or appeal or other available remedies: see, for example, Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948; Worden v. Ontario Municipal Board, 2014 ONSC 7247; Hsieh v Ministry of Community and Social Services et al, 2017 ONSC 3094; and Vangjeli v. WJ Properties, 2019 ONSC 5631.
[37] Recently, in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, this Court dealt with a case where a party brought a concurrent application for judicial review and an appeal of a LAT decision. In that context, the court specifically considered the issue of circumstances where it may be appropriate to seek judicial review of a LAT decision where there is a right of appeal. At para. 46, the Court found that the court should only entertain a judicial review of a LAT decision dealing with statutory accident benefits, “if at all, in exceptional circumstances”. In reaching that conclusion, the Court had regard to the legislature’s choice to only allow appeals on questions of law and that the LAT provides for a broad right of reconsideration including on questions of fact. The Court also had regard to the nature of the question at issue in that case, which was a question of mixed fact and law.
[38] This case does not present any exceptional circumstances that would justify the court’s interference on an application for judicial review. The core of the dispute between the parties is whether Mr. Tipping complied with his obligation to participate in an insurer’s examination, which includes the issues of whether the LAT erred in finding that Coseco is entitled to schedule the examinations through a third party and whether the Adjudicator erred in his reconsideration decision in finding that Mr. Tipping failed to comply with his obligation to provide documents for a paper review.
[39] As conceded by Mr. Tipping’s lawyer, the Adjudicator’s findings on these issues are matters of mixed fact and law. The fact that Mr. Tipping may not be able to bring an appeal on these issues does not give rise to exceptional circumstances. As held by the Supreme Court of Canada in Strickland v. Canada (Attorney General), 2015 SCC 37, at para. 42, “neither the process nor the remedy need be identical to those available on judicial review”. As stated in Yatar, at para. 39, the “question is whether judicial review is appropriately respectful of the statutory framework and the purposes and policies underlying the statutory scheme”. In this case, the mere fact that Mr. Tipping may not be able to appeal the LAT’s findings of fact or findings of mixed fact and law is not an exceptional circumstance. Rather, precluding Mr. Tipping from proceeding with his application for judicial review on these issues is respectful of the legislature’s intention to limit the courts’ interference with LAT decisions to questions of law alone.
[40] It is also worth noting that, on an application for judicial review, in accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the court would apply a reasonableness standard of review and would accordingly only interfere with the LAT’s decisions if the chain of reasoning and outcome were not supported by the record and legal constraints. This is a high bar, and it is not at all clear to me that it could be met in this case. The record shows ongoing attempts by Coseco to schedule the insurer’s examination and an ongoing pattern by Mr. Tipping’se lawyers of raising peripheral objections to the examination. Ultimately, Mr. Tipping did not agree to attend the scheduled in-person examination nor did he provide the requested documents. In the circumstances, it is hard to see how the Adjudicator’s decisions are unreasonable.
[41] In addition to the issues of whether the LAT made any errors in deciding that Mr. Tipping did not meet his obligations to comply with the insurer’s request for an examination, Mr. Tipping raises many issues of procedural fairness and natural justice regarding the proceedings before the LAT following the issuance of the Adjudicator’s initial decision. While Mr. Tipping’s lawyer did not pursue these issues vigorously during the hearing of the application for judicial review, they nevertheless figure prominently in his factum. Procedural fairness and natural justice, including allegations of bias, are questions of law. An appeal from the LAT on those issues is therefore an obvious adequate alternative remedy. However, it is worth noting that, again, in my view, these issues appear to have no merit. Rather than following the process provided for in the LAT’s rules of procedure for requesting a reconsideration, Mr. Tipping’s counsel sent several intemperate letters to the LAT, including to the Adjudicator. The LAT had to figure out how to deal with this situation and ultimately decided to treat the June 26, 2019 letter as a request for reconsideration and assigned the reconsideration to the original Adjudicator. This was within the LAT’s administrative discretion and does not appear to amount to any procedural unfairness. Similarly, there is no evidence of any reasonable apprehension of bias; as held by the Adjudicator, strong disagreement with a decision is not sufficient to justify a finding of reasonable apprehension of bias.
[42] If Mr. Tipping were to pursue an appeal of the LAT’s decision on issues of procedural fairness, an additional issue he may face is that the appeal is premature on the basis that the LAT’s order is not a final order. The Divisional Court has repeatedly held that it will not interfere with administrative processes until they reach their conclusion; see, for example, Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (Div. Ct.), at paras. 18-23. In this case, Mr. Tipping can proceed with his application to the LAT if he complies with Coseco’s request that he participate in a neuropsychological examination. In the circumstances, arguably, the LAT proceedings are not completed.
[43] In any event, judicial review is discretionary and, where there is an adequate alternative remedy, the Court will only interfere in exceptional circumstances. Mr. Tipping has not identified any exceptional circumstances that warrant the Court’s interference here. I see none. In this case, the correct legal avenue is an appeal to the Divisional Court on a question of law alone. Having said that, even if Mr. Tipping could obtain an extension of time for the appeal, I would strongly urge him to consider whether it is worth proceeding with an appeal on the questions of law he appears to raise in this matter. Ultimately, as conceded by counsel for Coseco during the argument, it appears that there is an easy path for Mr. Tipping to pursue benefits in this case. As reviewed above, section 37(8) of the Schedule allows Mr. Tipping to comply with the request for an examination, after which, depending on the outcome, he would be entitled to receive benefits or to proceed with his application to the LAT. Even if Mr. Tipping succeeded on an appeal to this Court, it is likely that the most he could achieve is an order by this Court that the LAT hold a fresh hearing on the issue of his compliance with the insurer examination. The outcome of that hearing would be uncertain and may lead to a further procedural morass. This is a far more convoluted and uncertain path than agreeing to comply with a newly scheduled insurer’s examination, whether in person or by way of documents or both.
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