Simon's Megalomaniacal Legal Resources

Judicial Review - Adequate Alternative Remedy (AAR) (4)

. Humberplex Developments Inc. v. Ontario (AG)

In Humberplex Developments Inc. v. Ontario (AG) (Div Court, 2024) the Divisional Court dismissed a JR, here of "O.Reg. 382/19, which amended O.Reg. 303/19: Transition for Planning Act Appeals" under the Local Planning Appeal Tribunal Act, 2017 on ultra vires grounds. "The amending regulation reimposed the more restrictive procedural regime that previously applied to appeals of municipal planning decisions heard by the Ontario Land Tribunal (the “Tribunal”). Under the amending regulation, the more restrictive regime was reimposed only on appeals solely by third party appellants."

Here the court finds that a JR would be premature as there was an 'adequate alternative remedy' in the form of a pending related leave to appeal motion for an OLT appeal. The court alluded in this respect to the recently-established Yatar doctrine that countenances dual JR/appeal proceedings:

VII. Prematurity/procedural fairness

[86] The Attorney General and Vaughan also raise the issue of prematurity.

[87] In addition to their judicial review application, the applicants bring a Notice of Motion for Leave to Appeal the Tribunal’s Final Decision to this court. At the applicants’ request, the leave motion is being held in abeyance while the judicial review application is proceeding. If leave is granted, the appeal would be only on a question of law: OLTA, s. 24. The basis for the applicants’ motion for leave includes that the Tribunal erred in law in the conduct of the appeal, such as by failing to afford procedural fairness to the applicants in its rulings.

[88] In the context of case management, the parties were advised that if judicial review and an appeal were both being pursued in the same matter, the Divisional Court’s practice is for the judicial review and the appeal to be heard together. The rationale for that practice is to avoid “the systemic difficulties associated with duplicative judicial reviews and appeals” by addressing all legal issues arising from the underlying matter at the same time: see Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 (“Yatar CA”), at paras. 55-56, rev’d 2024 SCC 8 (“Yatar SCC”). While in Supreme Court reversed the result in Yatar CA on other grounds (as discussed further below), Yatar SCC did not call into question the Divisional Court’s practice relating to management of concurrent judicial reviews and appeals. The practice was described in Yatar CA, at paras. 55-56:

55. First, if a party intends to utilize both their right of appeal and their right to seek judicial review, then those proceedings must be brought together. Put simply, a party cannot first exercise their right of appeal and then, if unsuccessful, bring a judicial review application. “Litigation is not to be conducted by instalment”: Shearer v. Oz, 2021 ONSC 7844, at para. 5.

56. Second, once both proceedings are commenced, a motion must be brought for the two proceedings to be heard together with a single appeal book/application record and factum covering both proceeding.

[89] At the applicants’ request (with the other parties’ concurrence), the judicial review application proceeded first in this case, to allow determination of the threshold issue of the regulation’s vires. In these circumstances, however, the parties were aware that proceeding in this fashion may raise the issue of prematurity.

[90] The Attorney General and Vaughan submit that to the extent the judicial review application raises questions of law relating to the hearing itself as opposed to the vires of the regulation, those aspects of the application should be dismissed as premature. They say that those questions are more appropriately addressed in the applicants’ motion for leave to appeal and (if leave is granted) the appeal, which they say provides an adequate alternative remedy to address those questions: see Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 42.

[91] In the course of the applicants’ submissions relating to the regulation’s vires, the applicants also challenge the procedural fairness of Bill 139 regime under which the planning appeals were conducted, suggesting that lack of procedural fairness before the Tribunal provides an alternative basis for voiding the Final Decision. However, the grounds for the application set out in the applicants’ amended Notice of Application for Judicial Review focus on the vires of the challenged regulation. The Notice of Application describes the differences between the hearing procedures under the Bill 139 regime and the Bill 108 regime but, unlike the Notice of Motion for Leave to Appeal, it does not allege that the Tribunal erred in law in the conduct of the hearing by failing afford procedural fairness to the applicants in its rulings.

[92] Consistent with the applicants’ originating documents in this court, I have concluded that the issue of breach of procedural fairness should be addressed in the context of the applicants’ leave to appeal motion and (if leave is granted) the appeal, which is confined to questions of law and provides an adequate alternative remedy to address that issue.

[93] In reaching that conclusion, I have considered the Supreme Court’s recent decision in Yatar SCC, in which the court, at para 4, found that the Divisional Court and the Court of Appeal erred in concluding that only in “exceptional circumstances” or in “rare cases” would judicial review be available where there is a right of appeal limited to questions of law only. Strickland, at paras. 43-44 (quoted in Yatar SCC, at para. 56), indicates that the exercise of discretion to decline to undertake judicial review based on the existence of an adequate alternative remedy requires the court to determine the appropriateness of judicial review:

The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate…. This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue ...

[94] The conclusion that the motion for leave to appeal and appeal provide an adequate alternative remedy is consistent with the applicable statutory scheme, under which the applicants have the opportunity to address questions of law (including procedural fairness) in the context of an appeal, and have indeed raised the same procedural fairness questions in their leave motion as in their submissions on this application. In these circumstances, Yatar SCC is distinguishable and this court is justified in declining to determine procedural fairness issues in the context of the applicants’ judicial review application.

. Yatar v. TD Insurance Meloche Monnex [Yatar]

In Yatar v. TD Insurance Meloche Monnex (SCC, 2024) the Supreme Court of Canada resolved issues regarding joint JR/appeal procedure, which arose where appeals were limited to 'questions of law' but the appellant still sought to challenge issues of fact or mixed fact and law [which a judicial review (JR) could conceivably have jurisdiction over]. In such cases the issue arose as to the role of the court's JR discretion, and - if applied to hear the JR - what standard of review applied.

Here the court 're-normalizes' the law of JR discretion, for Yatar proceedings [esp. para 56] - citing Strickland:

C. The Exercise of Discretion To Grant Relief on Judicial Review

[51] While there is a right to seek judicial review, it is open to the judge before whom judicial review is sought to decide whether to exercise his or her discretion to grant relief. This Court stated in Strickland, at para. 37, quoting Minister of Energy, Mines and Resources, at p. 90:

Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief . . . . Declarations of right, whether sought in judicial review proceedings or in actions, are similarly a discretionary remedy: “. . . the broadest judicial discretion may be exercised in determining whether a case is one in which declaratory relief ought to be awarded” . . . . [Emphasis added.]

[52] In Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 135, Rothstein J. stated:

The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies: Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, at p. 364. As Harelkin [v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561,] affirmed, at p. 575, courts may exercise their discretion to refuse relief to applicants “if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty”. As in the case of interlocutory injunctions, courts exercising discretion to grant relief on judicial review will take into account the public interest, any disproportionate impact on the parties and the interests of third parties. [Emphasis added.]

[53] In the case at bar, the Court of Appeal stated that “[t]he court’s discretion with respect to judicial review applies both to its decision to undertake review and to grant relief” (para. 44). This wording is unclear; thus, there is need for clarification.

[54] When an applicant brings an application for judicial review, a judge must consider the application: that is, at a minimum, the judge must determine whether judicial review is appropriate. If, in considering the application, the judge determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application (Strickland, at paras. 1, 38 and 40; Matsqui, at para. 31). The judge also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable (Khosa, at para. 135; Strickland, at para. 37, quoting Minister of Energy, Mines and Resources, at p. 90).

[55] The Court of Appeal initially found no reversible error in the Divisional Court’s decision to refuse to hear the judicial review application and agreed with the Divisional Court that: (i) there were alternative remedies, and (ii) the legislative scheme demonstrates “the legislative intent to limit access to the courts regarding these disputes” (para. 43). The Court of Appeal then went on to conduct a judicial review, as had the Divisional Court.

[56] Per Strickland, the exercise of discretion requires the court to determine the appropriateness of judicial review: “The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. . . . This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue . . .” (paras. 43-44).

[57] Respectfully, the Court of Appeal erred in its application of the Strickland factors. As I will explain, there is no proper basis to infer legislative intent to eliminate judicial review for issues (of fact and mixed fact and law) outside the scope of a statutory appeal. Furthermore, there was no adequate alternative remedy for Ms. Yatar on questions of fact and mixed fact and law.

[58] The Court of Appeal erred by holding that the limited right of appeal reflected an intention to restrict recourse to the courts on other questions arising from the administrative decision, and that judicial review should thus be rare. The legislative decision to provide for a right of appeal on questions of law only denotes an intention to subject LAT decisions on questions of law to correctness review. The idea that the LAT should not be subject to judicial review as to questions of facts and mixed facts and law cannot be inferred from this.

[59] The respondent TD Insurance argues that the legislative scheme and its amendments in 2016 reflects a policy choice by the legislature to severely limit the courts’ involvement in accident benefits disputes: “Section 11(6) of the LAT Act restricts appeals to questions of law. . . . For LAT decisions made under nearly twenty other statutes, the legislature has made appeals available on all questions” (R.F., at paras. 62‑63). TD Insurance further submits that “applying a deferential standard of review (reasonableness) to factual and mixed questions arising out of LAT decisions concerning SABS would not be appropriately respectful of the legislature’s institutional design choices” (para. 84).

[60] With respect, I do not agree. The legislature could have decided to encompass all types of errors in the right to appeal, but it did not. Moreover, s. 2(1) of the Judicial Review Procedure Act preserves the right of litigants to seek a judicial review “despite any right of appeal”. Errors of fact or mixed fact and law, thus, are not subject to a correctness standard of review. With that in mind, proceeding with judicial review of questions of fact or mixed fact and law is fully respectful of the legislature’s institutional design choices.

[61] In Vavilov, this Court held that “because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely” (para. 24). Professor Paul Daly argues that “[w]here the judicial review jurisdiction of the courts has been successfully ousted by statute ... the legislature has provided a particular channel for oversight of the legality, rationality and procedural fairness of administrative action” (Understanding Administrative Law in the Common Law World (2021), at p. 188 (emphasis in original)). In other words, there was an appropriate alternative forum or remedy.

[62] The statutory right to appeal and the LAT adjudicator’s reconsideration decision do not constitute adequate alternative remedies. The right to appeal under s. 11(6) of the LAT Act is restricted to errors of law only. Ms. Yatar raises errors of fact or mixed fact and law. Review of these questions is not available under the statutory right of appeal.

[63] The access to internal reconsideration cannot be an adequate alternative remedy, as the reconsideration decision itself is the subject of the review. Alternatives do exist where internal review processes have not been exhausted or where there is a statutory right to appeal that is not restricted, such that questions of law, fact, and mixed fact and law could be considered on appeal. But, that is not so here.

[64] This Court in Strickland, at para. 43, also emphasizes the appropriateness of judicial review in the circumstances, referring to a “balancing exercise”:

The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case: Matsqui, at paras. 36-37, citing [Minister of Energy, Mines and Resources], at p. 96. Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis: Khosa, at para. 36; TeleZone, at para. 56. As Dickson C.J. put it on behalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant . . .” [Minister of Energy, Mines and Resources], at p. 96). [Emphasis added.]

. Yatar v. TD Insurance Meloche Monnex [reconsiderations not an AAR for JR purposes]

In Yatar v. TD Insurance Meloche Monnex (SCC, 2024) the Supreme Court of Canada resolved issues regarding joint JR/appeal procedure, which arose where appeals were limited to 'questions of law' but the appellant still sought to challenge issues of fact or mixed fact and law [which a judicial review (JR) could conceivably have jurisdiction over]. In such cases the issue arose as to the role of the court's JR discretion, and - if applied to hear the JR - what standard of review applied.

Here the court (thankfully) holds that administrative 'reconsiderations' cannot constitute an 'adequate alternative remedy' so as to defeat a JR application on grounds of prematurity:

[62] The statutory right to appeal and the LAT adjudicator’s reconsideration decision do not constitute adequate alternative remedies. The right to appeal under s. 11(6) of the LAT Act is restricted to errors of law only. Ms. Yatar raises errors of fact or mixed fact and law. Review of these questions is not available under the statutory right of appeal.

[63] The access to internal reconsideration cannot be an adequate alternative remedy, as the reconsideration decision itself is the subject of the review. Alternatives do exist where internal review processes have not been exhausted or where there is a statutory right to appeal that is not restricted, such that questions of law, fact, and mixed fact and law could be considered on appeal. But, that is not so here.

. Thales DIS Canada Inc. v. Ontario (Transportation)

In Thales DIS Canada Inc. v. Ontario (Transportation) (Ont CA, 2023) the Court of Appeal considered the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), here in the course of a successful Crown appeal of a JR finding that the bidding requirements were in violation of CETA. In these quotes the court considered the JR 'justiciability' of the case, which was particularly influenced by the availability of an administrative internal review process:

E. THE REVIEWABILITY OF THE REQUESTS FOR BIDS

[119] Ontario argues that the Divisional Court erred in holding that the request for bids was unreasonable. In making this argument, Ontario submits that the issuance of a request for bids is not generally subject to judicial review.

[120] I agree with Ontario that the Divisional Court erred in this case in finding that the request for bids was subject to judicial review on its own apart from the Decision. However, I arrive at this conclusion through a different route than proposed by Ontario.

[121] I deal first with Ontario’s argument, followed by a discussion of how I would address the issue of the reviewability of the request for bids in this case.

(1) There is no general authority that a request for bids should not be subject to judicial review

[122] Ontario relies on the decision in Wauzhushk Onigum Nation v. Minister of Finance (Ontario), 2019 ONSC 3491 (Div. Ct.), to argue that the terms of the request for bids is not subject to judicial review. However, Wauzhushk does not stand for that proposition. In Wauzhushk, the applicant sought to challenge a Cabinet decision directing the Ontario Minister of Finance to seek to increase revenues from land-based gaming. As part of this decision, Cabinet directed the Minister of Finance to shift operations of its gaming sites to private operators through a competitive procurement process. The Divisional Court held that the directive was not justiciable because it was a policy decision of Cabinet. The Divisional Court further held that the manner in which the Ontario Lottery and Gaming Corporation, a Crown corporation, chose to seek bids was not subject to judicial review because it was a commercial matter and not a matter of public law. It was in that context that the Divisional Court stated that “[t]o date, a public tender process has not been subject to public law remedies in Ontario”: at para. 108.

[123] In making this statement, the Divisional Court relied on this court’s decision in Bot Construction Limited v. Ontario (Minister of Transportation), 2009 ONCA 879, 85 C.L.R. (3d) 25. There, the court considered an appeal from a decision of the Divisional Court that had found the rejection of a bid as non-compliant to be unreasonable. This court reversed that conclusion, finding that MTO’s decision in that context was reasonable. However, in the course of the reasons, the court specified that it came to that conclusion “without expressing any view as to the availability of judicial review as a remedy with respect to the tendering process for government procurement contracts”: at para. 19. In other words, there is no definitive authority from this court on the issue of whether a tendering process can or cannot be subject to judicial review.

[124] However, as discussed below, this is not an appropriate case in which to decide the general issue of whether a request for bids can be subject to judicial review. The issue in this case should be decided based on its specific circumstances.

(2) The request for bids is not subject to judicial review because it first went through the Ontario Government’s bid dispute process

[125] In this case, the issue of whether the request for bids is subject to judicial review must be considered in the context of Ontario’s obligations to establish a dispute resolution process under the CETA. Given that the CETA foresees that the participant countries and their sub-governments must establish a review process, the ability to judicially review the request for bids must be considered in the context of that process.

[126] The majority of the Divisional Court reasoned that the request for bids was subject to judicial review because it raised matters of public law. In arriving at this conclusion, the court relied on the decision in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605. The court based its decision on the various factors to which Air Canada referred at para. 60 to conclude that the request for bids had a sufficiently public character to warrant subjecting it to judicial review.

[127] However, in approaching the issue from this perspective, the majority failed to consider the impact of the review process on the issue of whether the Divisional Court should exercise its discretion to review the request for bids on its own, and separate from the review of the Decision.

[128] In this respect, I agree with the concurring judge who stated that, if Ontario established a CETA compliant process for addressing complaints about a request for bids, the request for bids itself should not separately be subject to judicial review:

I disagree with my colleague’s approach because of what it could signal for future cases. If Ontario establishes a CETA-compliant dispute resolution process – as it is obliged to do under CETA – then this court should, in future [cases], respect the process established by Ontario. This would ordinarily foreclose this court from taking original jurisdiction to review an RFB, and instead, this court would leave it to the decisionmaker assigned this task by Ontario in a CETA-compliant process. Or, in other words, faced with an unreasonable decision from a lawful decisionmaker, we would send the issue back.

[129] Indeed, as a general principle, if an administrative process is set up for dealing with an issue, what is typically referred to as an adequate alternative remedy, the parties should first participate in that process before seeking judicial review: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332, at paras. 31-32; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at paras. 68-69. The reviewing court then has the benefit of the administrative decision makers’ reasons and expertise. If the parties have participated in the administrative process, there is no basis for ignoring the administrative decision and separately reviewing the request for bids afresh. That is not the role of the court on an application for judicial review.

[130] Of course, if the original decision maker did not have jurisdiction to review the request for bids, this may be a different issue. However, in this case, with respect, I disagree with the concurring judge’s conclusion that Ontario failed to establish a CETA compliant review process.