|
Judicial Review - Adequate Alternative Remedy (AAR) (5). Whearty v. Waypoint Centre for Mental Health Care [new test]
In Whearty v. Waypoint Centre for Mental Health Care (Div Court, 2024) the Divisional Court dismissed a motion the quash (styled as "a motion to strike") a JR, here from an HRTO order that ordered counsel for a party to remove themselves due to the appearance of conflict.
Here the court considers dismissing the JR for prematurity, setting out a 'test' for this:[6] For the following reasons, I am not satisfied it is plain and obvious Mr. Whearty’s judicial review application will be dismissed as premature.
[7] The parties agree that interim decisions from an administrative tribunal are not ordinarily amenable to judicial review and fragmentation of proceedings should be avoided: College of Veterinarians of Ontario v. Mitelman, 2015 ONSC 484 (Div. Ct.), at para. 5. They also agree that this Court will only decide a judicial review of an interim decision on its merits in exceptional circumstances: CB Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, at paras. 31-32.
[8] The Tribunal argues there are no exceptional circumstances so it is plain and obvious Mr. Whearty’s judicial review application cannot succeed. I disagree. I find there is a reasonable basis on which Mr. Whearty can argue that his case is exceptional and that this Court should decide his judicial review on its merits.
[9] When deciding whether this matter is premature, the court will consider five factors:a. The hardship to Mr. Whearty if the Tribunal hearing proceeds without the ability to challenge the removal of his counsel;
b. The waste that will result if Mr. Whearty is required wait until the end of the Tribunal hearing to bring his judicial review application;
c. The delay in the Tribunal proceeding if Mr. Whearty is allowed to pursue his judicial review application now;
d. Whether fragmenting the process and the issues will create additional litigation; and
e. The strength of the Mr. Whearty’s judicial review application: Toronto Transit Commission v. Amalgamated Transit Union Loc. 113, 2020 ONSC 2642 (Div. Ct.), at para. 11. ....
[14] I am not saying Mr. Whearty is certain to win his judicial review application. The Member’s decision will be entitled to deference on review and may well be found to be reasonable. What I am saying is that it is not inevitable that Mr. Whearty’s judicial review application will be dismissed as premature because (a) it has merit and (b) he may be able to establish there are exceptional circumstances.
[15] There are at least three grounds which, taken together, could convince the panel there are exceptional circumstances to justify departing from the general rule against fragmenting judicial review applications. First, there is a valid argument that requiring Mr. Whearty to proceed to a hearing without his counsel of choice would result in real unfairness: Mitelman, at para. 7. I appreciate that the Member did not disqualify Ms. Kronis’s firm from acting for Mr. Whearty. She only disqualified Ms. Kronis. That does not, however, address the harm of being denied counsel of choice and being forced to retain new counsel for the hearing.
[16] Second, the Member’s decision could have implications beyond this case. In her reasons, the Member wrote, “I note that this decision will be relevant to whether Ms. Kronis should continue to act as counsel in her other cases with the Tribunal.” The Member urged Ms. Kronis to “review her role in any case that was open while she was [the Associate Chair], and/or in which the adjudicator was someone in whose recruitment she was involved.” If other Tribunal Members follow the interim decision in this case, it could create similar issues in other cases before the Tribunal and give rise to multiple judicial review applications. Resolving this issue now in the context of Mr. Whearty’s case could save significant court resources in other cases.
[17] Third, this judicial review application raises a discrete issue that is completely unrelated to the merits of Mr. Whearty’s application before the Tribunal.
[18] Balancing all the factors, I am not satisfied that it is “plain and obvious” Mr. Whearty’s judicial review application will be dismissed as premature. It will, of course, be for the panel to finally decide whether this application is premature or whether there are exceptional circumstances that justify deciding it on its merits even though it relates to an interim decision of the Board.
[19] The motion to strike is, therefore, dismissed. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from the earlier denial of a JR of "a report by the Conflict of Interest Ethics Commissioner".
Here the court considers JR prematurity 'adequate alternative remedy' (AAR) (aka 'prematurity'), in the larger federal Conflict of Interest Act and 'JR justiciability' context:B. Does the Conflict of Interest Act provide, as a matter of statutory interpretation, adequate alternative remedies to judicial review?
[79] Like any statutory provision, section 66 of the COIA must be interpreted through accepted principles of statutory interpretation, including an assessment of the whole legislative scheme in its proper context. When viewed in its totality, it is very clear that the COIA reflects Parliament’s intention to give both Parliament and the Court distinct supervisory roles in monitoring potential conflict of interests involving public office holders. In that context, it makes perfect sense to insulate from review by the Court the determinations made by the Commissioner within his jurisdiction.
[80] As previously mentioned (see above, paras. 13-16), the Commissioner is an independent Officer of Parliament, and the position he occupies is firmly within the legislative branch of government. He is tasked with the administration of the COIA for public office holders, and of the conflict of interest code for members of Parliament. Section 86 of the PCA makes it clear that he acts under the direction of the House of Commons when enforcing the code to its members.
[81] It is in this context that section 66 must be interpreted. Even if its wording is similar to that of subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365 (the "“FPSLREB Act”") at issue in PSAC, the legislative intent behind this section is very different. It is very clear from subsections 44(7), 44(8), 45(3) and 45(4) of the COIA, which require the Commissioner to provide his reports to the Prime Minister, that it is for the Prime Minister to decide how to give effect to the Commissioner’s determination, and for the House of Commons to hold the government to account. The sanction is meant to be political, not judicial. This conclusion is reinforced by the fact that the report of the Commissioner is to be made available to the public, and that its conclusions are not determinative of the measures to be taken (s. 47 of COIA).
[82] This is not to say that the Court has no role to play in supervising the Commissioner and the use that the incumbent makes of its powers. While the Court is precluded from granting judicial remedies for alleged errors of fact and law within the Commissioner’s jurisdiction, it can still be called upon when the Commissioner does not act within the confines of its jurisdiction, fails to observe a principle of natural justice or procedural fairness, acts or fails to act by reason of fraud or perjured evidence. This is perfectly consistent with the dual supervisory roles assigned to the Court and to Parliament, in a context that is highly political by nature and that has historically been the exclusive preserve of parliamentarians.
[83] It is also interesting to note that the Commissioner is required to submit annual reports on the administration of the COIA to the Standing Committee on Access to Information; the Committee may then determine whether anything flowing from the Commissioner’s activities requires additional consideration. In December 2012, the House of Commons tasked the Committee to conduct a statutory review of the COIA. In its report dated February 2014 (Respondent’s record at Tab 5), the Committee recommended amending section 66 to allow judicial review on errors of law. Yet, no significant changes were made following the report.
[84] Courts should be loath to perceive judicial remedies as the only effective recourse in every instance where an aggrieved party raises an alleged illegality. The decision of the Supreme Court in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, 61 D.L.R. (4th) 604 provides a useful (and, in my view, compelling) example of a situation where courts were denied the possibility to intervene in a dispute because Parliament had provided an adequate alternative remedy.
[85] In fulfilling his mandate and performing an audit, the Auditor General had requested certain documentation from the Department of Energy, Mines and Resources and from senior officials of Petro-Canada. These requests were denied, and the Governor in Council declined to exercise its powers to assist the Auditor General by ordering Petro-Canada to provide the information. The Auditor General sought to obtain the information through the judicial process. The Supreme Court found, unanimously, that the Auditor General had no recourse to the courts in the event of the refusal by Parliament, responsible Ministers, and the Governor in Council to make available to him all of the documentation he may seek in the discharge of his responsibilities.
[86] The Court started with the premise that it is open to Parliament to signal its view as to the role the courts should play in interpreting, applying and enforcing its statutes, and that such a signal should be respected in the same way as when courts give effect to privative clauses that oust judicial review (at 91-92). Interpreting the Act as a whole, the Court determined that the reporting mechanism in subsection 7(1) of the Auditor General Act, R.S.C. 1985, c. A-17 (the "“Auditor General Act”") was the only remedy available to the Auditor General for claimed denials of entitlements to certain information from the government. Pursuant to that provision, the Auditor General had an obligation to report annually to the House of Commons on whether, in carrying on the work of his office, he received all the information he required. According to the Supreme Court, on a proper and holistic interpretation of the Act, this was the only remedy available to the Attorney General "“not only because the text is conducive to such an interpretation but also because, in the circumstances, a political remedy of this nature is an adequate alternative remedy”" (at 103).
[87] The Court expanded on the notion that a political remedy is not to be dismissed as ineffectual in the following paragraph (at 104):The adequacy of the s. 7(1)(b) remedy must not be underestimated. A report by the Auditor General to the House of Commons that the government of the day has refused to provide the information brings the matter to public attention. It is open to the Opposition in Parliament to make the issue part of the public debate. The Auditor General’s complaint that the government has not been willing to provide all the information requested may, as a result, affect the public’s assessment of the government’s performance. Thus, the s. 7(1)(b) remedy has an important role to play in strengthening Parliament’s control over the executive with respect to financial matters. [88] In my view, the same can be said of the reporting mechanism found in the COIA. The statutory intention to have the courts defer to parliamentary remedies is, if anything, even clearer in the COIA than it was in the Auditor General case. While the Auditor General Act did not expressly exclude judicial remedies and the question of whether Parliament intended the court to defer to political remedies had to be inferred from the statute as a whole, section 66 of the COIA makes it even clearer that courts should not be drawn in disputes raising purely legal or factual issues within the jurisdiction of the Ethics Commissioner.
[89] Courts should always be sensitive to their proper role in a constitutional democracy like ours, where separation of powers goes hand in hand with the rule of law. Respect for the other branches of government must always be front and center when courts endeavour to play their role as judicial arbiters. As Justice McLachlin (as she then was) stated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, 100 D.L.R. (4th) 212 at 389:Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.
See also: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 33; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 at para. 30, rev’d on a different point, 2016 SCC 29. [90] This theme, albeit not in the context of determining whether section 66 of the COIA precludes judicial review raising prohibited grounds, has been picked up by this Court and in the Federal Court in previous cases involving Democracy Watch. In Democracy Watch v. Canada (Attorney General), 2018 FCA 195, a panel of this Court found that Parliament has a supervisory role to play alongside the Court (at paras. 20-22). In Democracy Watch v. Canada (Attorney General), 2018 FC 1290, the Federal Court similarly found that the combined effect of sections 47 and 66 of the COIA demonstrate the limited role of the Court within an otherwise comprehensive regime of duties and remedies (at para. 116). The Court also held that these sections show that Parliament had reserved for itself what measures are to be taken as a result of the Commissioner’s findings.
[91] Provincial courts have similarly adopted an attitude of restraint and respect to the legislature in matters of internal conduct, even in the absence of privative clauses (see, for example, McIver v. Alberta (Ethics Commissioner), 2018 ABQB 240 at paras. 70-77; Democracy Watch v. British Columbia (Conflict of Interest Commissioner), 2017 BCSC 123 at paras. 35-37). In this last decision, the Supreme Court of British Columbia accepted the distinction between the Conflict of Interest Commissioner, an officer of the Legislature, and other administrative tribunals, and found that it was for the legislative assembly, not for the Commissioner, to exercise discipline authority over its members.
[92] Therefore, I am of the view, based on these considerations, that Best Buy and PSAC do not apply to this application for judicial review and ought to be distinguished. These cases arose in the context of decisions made by quasi-judicial or administrative tribunals, and not of findings by an Officer of Parliament. Moreover, the COIA provide for a dual parliamentary and judicial oversight, with an elaborate procedure to regulate ethical conduct through political consequences. In the context of such a scheme, where accountability is intended to lie primarily with the legislative branch, courts should clearly exercise judicial restraint and adhere to the limits prescribed by section 66 of the COIA in their judicial review function.
|
