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Judicial Review - Adequate Alternative Remedy (Strickland)

. Strickland v. Canada (Attorney General)

In Strickland v. Canada (Attorney General) (SCC, 2015) the Supreme Court of Canada considered when provincial superior court were better suited to hear judicial review applications regarding challenges to federal regulations, here whether child support guidelines were ultra vires the Divorce Act. One issue canvassed was the factors to be considered when exercising the discretion to consider the application (the Strickland factors) and when alternative relief was more appropriate:
(a) The Discretionary Nature of Judicial Review and Declaratory Relief

[37] 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: see, e.g., D. J. Mullan, “The Discretionary Nature of Judicial Review”, in R. J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009 (2010), 420, at p. 421; Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, at p. 575; D. P. Jones and A. S. de Villars, Principles of Administrative Law (6th ed. 2014), at pp. 686-87; Brown and Evans, at topic 3:1100. 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” (Dickson C.J. in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, at p. 90, citing S. A. de Smith, Judicial Review of Administrative Action (4th ed. 1980), at p. 513).

[38] The discretionary nature of judicial review and declaratory relief is continued by the judicial review provisions of the Act. This is underlined both by the reference in s. 18 to the traditional prerogative writs and other administrative law remedies which have always been considered discretionary and by the use of permissive rather than mandatory language in relation to when relief may be granted. Section 18.1(3) provides that “[o]n an application for judicial review, the Federal Court may” make certain orders in the nature of those traditional remedies. This statutory language “preserves the traditionally discretionary nature of judicial review. As a result, judges of the Federal Court . . . have discretion in determining whether judicial review should be undertaken”: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 31; TeleZone, at para. 56.

[39] The fact that undertaking judicial review is discretionary means that the Federal Court judge’s exercise of that discretion is entitled to deference on appeal. As this Court noted in Matsqui, an appellate court “must defer to the judge’s exercise of . . . discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently”: para. 39, quoting Lord Diplock in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, at p. 1046.

(b) Alternative Relief

[40] One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative. The leading case is Harelkin, in which a student alleged that a university committee made a decision that violated his procedural rights. There was a right of appeal to the university’s senate, but instead of pursuing it, the student applied for judicial review. This Court held that the judge at first instance had erred in entertaining the judicial review application because he failed to exercise his discretion on relevant grounds: he did not consider whether the internal appeal process was an adequate alternative remedy that was capable of curing the denial of natural justice of which the student complained.

[41] The Court has applied similar reasoning in a number of cases to dismiss applications for judicial review. For example, in Matsqui, the Court upheld the decision of the Federal Court to decline to hear Canadian Pacific’s application for judicial review because it could have pursued an appeal procedure established by the Matsqui Band. In Canada (Auditor General), the Court refused judicial review to the Auditor General to challenge a denial of access to information because a political remedy — reporting to the House of Commons any refusals to comply with requests for information — was an adequate alternative remedy.

[42] The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as to justify a discretionary refusal to hear a judicial review application. These considerations include the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31; Mullan, at pp. 430-31; Brown and Evans, at topics 3:2110 and 3:2330; Harelkin, at p. 588. In order for an alternative forum or remedy to be adequate, neither the process nor the remedy need be identical to those available on judicial review. As Brown and Evans put it, “in each context the reviewing court applies the same basic test: is the alternative remedy adequate in all the circumstances to address the applicant’s grievance?”: topic 3:2100 (emphasis added).

[43] 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 Canada (Auditor General), 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 . . .” (Canada (Auditor General), at p. 96).

[44] This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue: see, e.g., Matsqui, at paras. 41-46; Harelkin, at p. 595. David Mullan captured the breadth of the inquiry well:
While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affected individuals against the imperatives of the process under review. In particular, the courts focus on the question of whether the application for relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes provided by that framework and the common law for challenging administrative action. Where the application is unnecessarily disruptive of normal processes . . . the courts will generally deny relief. [Emphasis added; p. 447.]
[45] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules. All relevant factors, considered in the context of the particular case, should be taken into account.

...

[59] As I discussed earlier, the remedy available in an alternative forum need not be the claimant’s preferred remedy or identical to that which the claimant seeks by way of judicial review. As the Court affirmed in Matsqui, at para. 37, and Harelkin, at p. 588, the remedial capacity of the alternative decision-maker is only one factor to consider in assessing adequacy. Thus, assuming (as the parties did before us) that the provincial superior courts cannot grant the remedy of a declaration of invalidity, this factor is relevant but not decisive. As for the contention that denying access to judicial review is contrary to the principle of the rule of law, I have already explained that the appellants do not have a right to require the Federal Court to engage in judicial review. Moreover, there is ample opportunity for the legality of the Guidelines to be challenged in family law litigation to which their operation is directly relevant.
. Savic v. College of Physicians and Surgeons of Ontario

In Savic v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court considered when there was an adequate alternative remedy:
[27] Judicial review is a discretionary remedy. This means that the court has the discretion to refuse the relief, even where the application has merit: Strickland v. Canada (Attorney General), 2015 SCC 37, at para. 37.

[28] It is appropriate for the court to decline to hear an application for judicial review when an applicant has an adequate alternative remedy. In Strickland, at para. 42, the Supreme Court of Canada identified a number of factors the court is to consider in determining whether there is an adequate alternative remedy, including the convenience of the alternative remedy, the nature of the alleged error, the nature of the alternative forum and its remedial capacity, expeditiousness and the economical use of judicial resources.

[29] The courts have also emphasized the need to respect legislative choice over how parties can challenge an administrative decision. Where the legislature has provided for an appeal mechanism, the Divisional Court should decline to entertain an application for judicial review absent exceptional circumstances: Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948 (Div. Ct.), at para. 2; and Vangjeli, at para. 6.

[30] In this case, subsections 70(1) and (2) of the Health Professions and Procedure Code provide a right of appeal from a decision of the Discipline Committee to the Divisional Court on a question of law or fact or both. On an appeal, section 70(3) gives the Divisional Court “all the powers of the panel that dealt with the matter…”

[31] A party who appeals a decision of the Discipline Committee is required to comply with the Rules of Civil Procedure that govern appeals. In accordance with 61.04(1), an appeal must be brought within 30 days of the decision appealed from.

[32] The Divisional Court has recognized that delay in appealing a decision is not an excuse for bypassing an appeal route. Rather, in those circumstances, the appropriate avenue is for the appellant to bring a motion to extend the time for an appeal. As held in Vangjeli, at para. 11, where the Court quashed an application to judicial review a decision of the Landlord and Tenant Board:
Late receipt of the Board’s decision is not a basis to supplant the appeal process with judicial review. The correct course for the applicants, if they wished to challenge the Board’s decisions, was to seek an extension of time in which to bring an appeal. Having failed to pursue their appeal rights, the applicants are foreclosed from pursuing judicial review.
[33] In this case, the appellant had a full right of appeal from the Disciplinary Committee’s decisions to the Divisional Court, but instead chose to bring an application for judicial review.
. Friends of Simcoe Forests Inc. v. Minister of Municipal Affairs and Housing

In Friends of Simcoe Forests Inc. v. Minister of Municipal Affairs and Housing (Div Ct, 2021) the Divisional Court considered a judicial review application where there were still some appeal rights yet to be exercised:
[72] This Court recently issued a decision dealing with the question of whether the Court should entertain an application for judicial review in the face of a limited right of appeal. In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), the applicant sought to both appeal and judicially review a decision of the Licence Appeal Tribunal. Appeals from that tribunal are limited to questions of law. The applicant sought to combine her appeal with an application for judicial review in the event that the Court found that the errors in question were errors of fact or mixed fact and law. The Divisional Court dismissed the appeal on the basis that it did not raise a question of law. With respect to the request for judicial review, the finding of the Court is summarized at para. 4:
Judicial review is a discretionary remedy. Only in exceptional circumstances will this court exercise its discretion to consider a judicial review application where there has been a statutory appeal from a LAT decision about statutory accident benefits. There are no exceptional circumstances here, and this court declines to judicially review the decision.
[73] This reasoning is applicable to the case at bar. While the Applicant did not appeal the LPAT decision it now seeks to have set aside, it had the right to seek leave to do so. The fact that that appeal right was limited to questions of law does not, in itself, make it appropriate for this Court to exercise its discretion to grant judicial review.

[74] However, in this case, unlike Yatar, there are exceptional circumstance that do make it appropriate for us to exercise our discretion to grant a remedy respecting LPAT’s decision. First, LPAT did not deal with or rule on the vires of the impugned provision, although the issue was argued in front of it. It would not have had jurisdiction to make a declaration that the impugned provision was ultra vires the authority of the Minister and thus it was appropriate for the Applicant to bring an application for judicial review to this Court seeking this relief. Second, since the sole reason for the LPAT’s decision was the existence of a regulation that this Court finds to be ultra vires, it is in the interests of justice that this Court set aside the LPAT’s decision to strike the Applicant’s growth plan issues rather than running the risk that the Applicant must bring another application for judicial review should the LPAT fail to expand the scope of its review of OPA 2 to include the Natural Heritage Policy issues raised by the Applicant.
. Chapman v. York Region Children’s Aid Society

In Chapman v. York Region Children’s Aid Society (Div Ct, 2021) the Divisional Court considered a judicial review prematurity issue:
Prematurity

[29] Judicial review is a discretionary remedy. A reviewing court may decline to hear an application for judicial review when the applicant has an adequate alternative remedy to review the decision, unless there are exceptional circumstances that warrant judicial review (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 68). The alternative remedy must be “adequate” – that is, it must be able to provide the applicant with a remedy that cures the alleged defects in the challenged decision (at para. 73).
. Yatar v. TD Insurance Meloche Monnex

In Yatar v. TD Insurance Meloche Monnex (Div Ct, 2021) the Divisional Court considered an unusual auto insurance case where both a statutory appeal and a judicial review were advanced (out of prudence) essentially on the same administrative (LAT) case below, because the appeal was on 'questions of law' only. Both were perfected and put before the Divisional Court. The court dismissed the appeal for lacking a 'question of law', and the JR was also dismissed on discretionary grounds as there was an 'adequate alternative remedy' in the appeal stream (Strickland factors). The case highlights the issue of justiciability, so central after the Vavilov case:
[23] The appeal and application for judicial review raise these issues:

(1) On the statutory appeal, did the LAT err in law in finding that the appellant’s claims are barred because of a limitation period?

(2) If there is no error in law, and the appeal is dismissed, should this court exercise its discretion to hear the judicial review application?

Jurisdiction

[24] The Divisional Court has jurisdiction to hear the statutory appeal on a question of law only under section 11(6) of the LAT Act. Section 280(3) of the Insurance Act and section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 preserve the right of judicial review despite any right of appeal.

THE STATUTORY APPEAL

Standard of Review

[25] The LAT Act, section 11(6) provides that an appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only. Since this is a statutory appeal on a question of law, the standard of review of that question of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. There is no appeal on questions of fact, or questions of mixed fact and law without an extricable question of law: Oliver v. Brant Mutual Insurance Company, 2018 ONSC 3716 (Div. Ct.) at para. 17.

....

[33] Ms. Yatar has also pursued an application for judicial review. If the errors involve questions of fact or mixed fact and law, then she argues that the remedy lies with an application for judicial review. I first consider the issue of prematurity, then turn to the question of adequate alternative remedy in considering whether to exercise my discretion to hear the judicial review application.

....

[36] The LAT statutory appeal on questions of law does not deprive this court of jurisdiction to consider other aspects of a decision in judicial review proceedings: Vavilov at paras. 45, 52. The right to seek judicial review from the decision of the LAT is preserved in two ways. First, section 280(3) of the Insurance Act prevents recourse to the courts about disputes over an insured person’s entitlement to statutory accident benefits, except for appeals from LAT decisions or applications for judicial review. Second, section 2(1) of the Judicial Review Procedure Act provides that despite any right of appeal, the court may grant certain remedies on an application for judicial review. This framework reflects the constitutional guarantee of judicial review, as legislatures cannot entirely shield administrative decision-making from scrutiny by the courts: Vavilov at para. 24.

[37] Even though judicial review has not been altogether precluded, this court must consider the intention of the Legislature in limiting the statutory appeal to questions of law. In Vavilov, 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: Vavilov at paras. 33-34 and 36. Judicial review is a discretionary remedy. I set out below factors that I consider in deciding whether to exercise my discretion to hear a judicial review application from a LAT SABS decision where there is no error of law.

[38] The respondent argues that judicial review should be denied on the grounds that the statutory appeal is an adequate alternative remedy. The courts have identified several factors relevant to determining whether an alternative remedy is adequate and so would justify a decision to decline judicial review, often called the Harelkin/Matsqui factors. The Supreme Court of Canada in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 at para. 42 has summarized these factors to include “the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost.”

[39] The Supreme Court in Strickland has further held that “neither the process nor the remedy need be identical to those available on judicial review”; the issue is whether the remedy is adequate in all the circumstances. Courts are to apply a “type of balance of convenience analysis” assessing both the adequacy of the alternative remedy and the suitability and appropriateness of judicial review. The “question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate”: see paras. 42-44. A key question is whether the judicial review is appropriately respectful of the statutory framework and the purposes and policies underlying the statutory scheme: Strickland at para. 44.

[40] In determining whether to exercise my discretion, I consider several factors.

[41] First, I must give weight to the legislative intent to limit this court’s review of LAT decisions on statutory accident benefits to questions of law only, and to allow LAT to “function with a minimum of judicial interference” on questions of fact and mixed fact and law: Vavilov at para. 24. I also consider the purposes and policies underlying the statutory scheme. This includes the extensive 2016 revisions to the SABS dispute system which were designed to provide a streamlined response, prioritizing access to justice in a quicker and more efficient manner. This is reflected in the elimination of mandatory mediation at FSCO, the tighter timelines for completion of all steps, the elimination of recourse to the courts, the exclusive jurisdiction of LAT, and the 2016 enactment of the appeal clause restricting appeals to questions of law. While judicial review is preserved by virtue of section 280(3) of the Insurance Act and section 2(1) of the Judicial Review Procedure Act, the specific legislative intent for LAT SABS decisions is that they may be appealed as of right, making the statutory appeal an expeditious and convenient route which conserves the parties’ and judicial resources.

[42] Second, I also consider the breadth of LAT’s reconsideration power, which includes errors of fact or law likely to affect the result. The “other forum” to be considered includes both the statutory appeal and the first level reconsideration. That reconsideration is undertaken by a decision-maker with exclusive jurisdiction over SABS decisions. Rule 18.2 of the LAT’s Common Rules provides that:
The Tribunal shall not make an order …unless satisfied that one or more of the following criteria are met: (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.
[43] Rule 18.4 provides that after reconsideration, the LAT may confirm, vary, or cancel the decision or order, or it may order a rehearing. As set out by Marrocco A.C.J.S.C. in Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.), although the LAT Rules do not authorize a “wholesale reweighing of evidence”, the internal standard of review on reconsideration is akin to correctness: paras. 67 and 70. So there has already been one level of review of the LAT decision by a decision-maker with broad remedial powers.

[44] Third, I consider the nature of the alleged errors in the present application. The errors complained of are questions of fact or mixed fact and law involving the assessment of evidence. Whether on a statutory appeal or on a judicial review, the reviewing court will be highly deferential to the administrative decision maker on these issues. Findings of fact are not immune from judicial oversight – but the court will intervene in a statutory appeal limited to questions of law only if the treatment of the evidence is so seriously in error as to constitute an error of law, as discussed above. On an unrestricted statutory appeal, the court will apply a deferential standard of “palpable and overriding error” to factual findings. On judicial review, the standard of reasonableness on issues of fact-finding and assessment of evidence requires a similarly high standard of deference as set out in Vavilov at para. 125:
It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
Whether on a statutory appeal limited to questions of law, or on judicial review, the court will be similarly deferential in respect of the type of errors alleged here.

[45] Fourth, I consider the systemic difficulties associated with duplicative judicial reviews and appeals. The concurrent pursuit of two remedies has triggered two sets of procedures and the filing of voluminous materials. Ms. Yatar filed both a judicial review record and a separate appeal record, due to different requirements under the Rules of Civil Procedure R.R.O. 1990, Reg. 194. The parties each filed two factums, addressing different issues and different standards of review. The LAT has a right to participate on the judicial review, but not on the appeal unless leave is granted. The time periods set out in the Rules of Civil Procedure for filing materials vary between appeals and applications for judicial review. The duplication of materials is a heavy burden on the parties and the court in terms of time, cost and efficiency. These concerns only increase when an application for judicial review is scheduled after an unsuccessful statutory appeal in order to avoid allegations of prematurity.

[46] Taking all the above factors into consideration, I conclude that judicial review of a LAT SABS decision is only available, if at all, in exceptional circumstances. There are no exceptional circumstances here that would lead me to exercise my discretion to judicially review the questions of fact and mixed fact and law raised by the applicant in her judicial review application.
. Ball v. McAulay

In Ball v. McAulay (Ont CA, 2020) the Court of Appeal considered a complex judicial review issue. A university initiated it's own disciplinary proceedings against student teaching assistants despite the issues occuring within a collective agreement context, which had exclusive jurisdiction and for which procedure were available. The students did not raise the jurisdiction issue within the university proceedings, rather they filed for judicial review (JR) in the Divisional Court instead, while the university processes were not yet exhausted (when two stages were completed).

I have problems with the case. Normally to my mind the JR application gives rise immediately to a response of prematurity, as JR is a discretionary remedy of last resort. However the court below and the Court of Appeal went on to find that they had jurisdiction under the 'Strickland factors' drawn from Strickland v. Canada (Attorney-General), 2015 SCC 37, which weighed the respective procedural merits of the alternative procedures ('adequate alternative remedy').

I'll have to consider it more but here are the relevant passages that hopefully spell out the reasoning:
III. Issue Three: Should judicial review have been denied because an appeal to the Appeal PANEL was an adequate alternative remedy?

[116] The Divisional Court found that there were exceptional circumstances justifying its decision to decide the jurisdictional issue despite the respondents’ failure to pursue an appeal to the Appeal Panel. First, York’s change in position about whether it was too late to appeal to the Appeal Panel cast doubt on the adequacy of this remedy: at para. 67. Second, there was no risk of fragmentation because the Tribunal and the Appeal Panel had already finally determined the merits of the complaints and imposed sanctions: at para. 68. Third, there was no utility in requiring the respondents to appeal to the Appeal Panel before continuing with the judicial review because there was only one outcome: The Legislature had conferred jurisdiction on a labour arbitrator to adjudicate discipline disputes: at para. 69. Fourth, there was evidence of hardship – for example, one of the applicants risked deportation if suspended: at para. 70.

[117] The appellant argues that the Divisional Court erred in not applying the Strickland factors for assessing whether an appeal from the Tribunal to the Appeal Panel was an adequate alternative remedy to judicial review: Strickland v. Canada (Attorney-General), 2015 SCC 37, [2015] 2 S.C.R. 713. In Strickland, the court considered when a court should exercise its discretion to decline judicial review on the basis that there was an adequate alternative remedy. The court set out a non-exhaustive list of factors to make this determination, at para. 42:
The convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost. [Citations omitted.]
[118] As the Supreme Court instructed in Strickland, it is not enough for the court to consider only whether there is an adequate alternative; it should also consider the suitability and appropriateness of judicial review in the circumstances: at para. 43. This balancing exercise requires the court to account for the purposes and policy considerations underpinning the legislative scheme at issue: at para. 44. The Divisional Court decided, in its discretion, that it was not appropriate to remit the matter back to the Appeal Panel.

[119] I would reject the appellant’s argument that the Divisional Court erred by not considering the Strickland factors. While the court did not cite Strickland, it did refer to the leading case on the adequate alternative doctrine – Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561: at para. 63; Strickland, at para. 40. In my view, the factors the Divisional Court considered adequately map onto the Strickland factors.

[120] First, the court noted that it was not clear the appeal process was an adequate alternative remedy because it was uncertain whether the Appeal Panel would grant a time extension: at para. 67. This concern maps onto the Strickland factors: convenience of the alternative remedy and whether adequate and effective recourse was available in the forum in which litigation was already taking place.

[121] Second, the Tribunal and the Appeal Panel had determined the merits and sanctions appeals, and so there was no risk of fragmenting the proceedings: at para. 68. Because all the evidence was in, it was more expeditious to proceed with judicial review than to send the matter back to the Appeal Panel and risk another round of judicial review.

[122] Third, the court pointed to the clear legislative wording that required an arbitrator to adjudicate this type of dispute: at para. 69. It seems obvious that the interpretation of the legislation is a legal question that neither the Tribunal nor the Appeal Panel was better qualified to undertake than the Divisional Court.

[123] Fourth, the court pointed to hardship, prejudice, costs or delay as being factors that may constitute exceptional circumstances for the judicial review application to proceed: at para. 70. These considerations map onto the Strickland factors: expeditiousness, economical use of judicial resources, and cost.

[124] The Divisional Court decided, in its discretion, that it was not appropriate to remit the matter back to the Appeal Panel. As such, this court should defer unless a legal error was made, or a palpable and overriding error of fact. I see neither.


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