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Judicial Review - Prematurity (1)

. Barron v. Social Benefits Tribunal

In Barron v. Social Benefits Tribunal (Div Ct, 2021) the Divisional Court held that a judicial review application was premature while appeals remained:
[5] Judicial review is a discretionary remedy. This Court has repeatedly held that an application for judicial review should not be permitted to proceed where there is an adequate alternative remedy; see, for example, Franssen v. Association of Professional Geoscientists of Ontario, 2015 ONSC 651 .
. Cura v. Aviva Insurance Canada

In Cura v. Aviva Insurance Canada (Div Ct, 2021) the Divisional Court engaged in an extended praise of prematurity as a doctrine, both in the appeal and the judicial review (which this one was) context:
[1] Litigants, whether they are before an arbitrator or a trial judge must, absent exceptional circumstances, proceed with their litigation to its ultimate conclusion before anyone aggrieved with an interim ruling or order initiates an appeal or an application for judicial review. There is good reason for this proposition. Numerous decisions are made by arbitrators and trial judges during the course of a hearing. Many of these decisions the parties may not agree with. Litigation in general would come to a grinding halt if an aggrieved litigant sought redress in a higher court every time he or she lost an argument during a trial or arbitration. This application for judicial review should serve as a reminder to heed this basic direction.

...

[30] It is a fundamental principle of our legal system as it relates to both litigation before the LAT and similar tribunals, as well as trials in our court system, that decisions made during the course of a proceeding are not subject to judicial review or an appeal until such time as the process itself is complete. This principle is well understood and reflected in the decision of the Court of Appeal in Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 69, where the Court of Appeal adopted the rationale for this principle set forth by Stratas J.A. in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, as follows:
Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until available, effective remedies are exhausted.

This prevents fragmentation of the administrative process 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 review in court have all of 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.
. Walia v. College of Veterinarians of Ontario

In Walia v. College of Veterinarians of Ontario (Div Ct, 2020) the Divisional Court set out the normal rule on prematurity with judicial reviews:
[38] ... The Divisional Court and other courts have repeatedly held that, absent exceptional circumstances, administrative proceedings should run their full course before an application for judicial review or an appeal is commenced: Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115 (Div. Ct.), at para. 9. ...
. NM v. Dufferin-Peel Catholic District School Board

In NM v. Dufferin-Peel Catholic District School Board (Div Ct, 2020) the Divisional Court considers prematurity in a judicial review context:
[44] It is a well-established principle of administrative law that unless exceptional circumstances exist, a court should not engage in a judicial review of an administrative proceeding until the proceeding has run its course. See: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 68 to 70; Halifax Regional Municipality v. Nova Scotia Human Rights Commission, 2012 SCC 10, [2012] 1 S.C.R. 10 at paras. 35 and 36.

[45] The rationale for that principle was set out by Stratas J.A in C.B. Powell Limited v. Canada (Boarder Services Agency), 2010 FCA 61 at para. 32:
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates large costs and delays associated with premature forays to court and avoids 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 of 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. [Citations omitted.]
. Metro Ontario Real Estate Limited v. Corporation of the City of Orillia

In Metro Ontario Real Estate Limited v. Corporation of the City of Orillia (Div Ct, 2020) the Divisional Court dismissed a judicial review application where the applicant had neglected to use the administrative process (under the Expropriations Act) available. As such, the application did not deal with “the rights, privileges or interests of an individual”, and as well was premature:
[27] Metro clearly had a right to a fair process before the Inquiry Officer, given the Inquiry Officer’s role to find facts and to render an opinion about the proposed expropriation (Bezic Construction Ltd. v. Ontario (Ministry of Transportation), 2006 CanLII 85159 (Ont. Div. Ct.) at para. 6). However, the City had no duty of procedural fairness with respect to the delivery of the Notice of Grounds and the disclosure other than that set out in the Act, with which it complied.

[28] As well, given the nature of the HON [SS: Hearing of Necessity] process, the City made no reviewable decision when it refused to consent to an adjournment of the hearing. It reasonably refused the adjournment, given its conclusion that Metro had proper notice of the issues and an ability to respond and its concerns about the delay that would come with an adjournment.

....

[30] Judicial review is a discretionary remedy. There is a principle of administrative law that an application for judicial review is premature and relief should be denied if the applicant has an adequate alternative remedy to address the issues (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 68, 70 and 73; C.B. Powell Ltd. v. Canada (Agence des services frontaliers), 2010 FCA 61 at paras. 30-33).

....

[40] This Court can grant declaratory relief only with respect to the exercise or proposed exercise of a statutory decision (Judicial Review Procedure Act, R.S.O. 1980, c. J.1, s. 2(1)2). The power to expropriate has yet to be exercised. Expropriation of the interests at issue requires a decision by municipal council, the approving authority, pursuant to s. 8 of the Act.

[41] While this Court can give a declaration with respect to a proposed exercise of a statutory power of decision, courts do not give declarations in the abstract. In the present case, there has been no expropriation and until the expropriation process has run its course, this Court does not know precisely what the ultimate decision will be.
. Bannis v. The Ontario College of Pharmacists

In Bannis v. The Ontario College of Pharmacists (Div Ct, 2020) the Divisional Court found an application for judicial review of an interlocutory order to be premature:
[9] It is well established that judicial review is a discretionary remedy. Normally, courts are reluctant to review interlocutory or interim steps in an administrative proceeding, preferring to wait until the proceeding has run its course in order to avoid fragmentation of the administrative process and delay, as well as to respect the legislative decision to confer decision-making authority on the administrative tribunal. Therefore, judicial review will be refused where the application is premature, unless there are exceptional circumstances: see Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 [“Volochay”] at para. 70.

[10] As stated in Volochay, this principle applies even though s.2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides that an application for judicial review may be brought “despite any right of appeal” to either an administrative tribunal or to the court. The ability to bring an application for judicial review does not compel the court to undertake judicial review. Exceptional circumstances are still required to justify early intervention.

[11] It should also be noted that in Abdul, the issue of prematurity was not argued before the Court as all parties were content that the matter should proceed. That decision does not stand for supporting the bifurcation of proceedings when issues of jurisdiction or abuse of process are raised. Contrary to the position advanced by the Applicant, it is not relevant that this application for judicial review has been brought at an early stage prior to the commencement of the hearing.

[12] Importantly, the Applicant has raised no allegation of a denial of procedural fairness or bias within the disciplinary proceedings that would fundamentally affect the fairness of that proceeding. We agree with the College that the Applicant will have the opportunity to advance all her claims in respect of abuse of process before the Disciplinary Committee and if necessary, she may then advance those on appeal.

[13] Premature applications for judicial review should be discouraged where there is an alternative remedy by way of appeal. It is preferable to allow the administrative proceedings to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion absent some exceptional or extraordinary circumstances: see McIntosh v. College of Physicians and Surgeons of Ontario, 1998 CanLII 19444 (Div. Ct.) at paras. 36-38. As cited with approval in McIntosh, if there is a prospect of real unfairness through denial of natural justice or otherwise, a superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted.
. Canadian Union of Public Employees, Local 5001 v. University Health Network

In Canadian Union of Public Employees, Local 5001 v. University Health Network (Div Ct, 2020) the Divisional Court dismissed an application for judicial review in arbitration proceedings for prematurity:
[26] This Court does not usually interfere in administrative proceedings, including arbitrations, until the proceedings are complete. As held in Toronto Transit Commission v. Amalgamated Transit Union Loc. 113, 2020 ONSC 2642, at para. 5, ordinarily the Divisional Court “will not entertain judicial review of an interlocutory decision on the basis of ‘prematurity’: the court requires the parties to complete the process below, to a final decision on the merits, and then judicial review may be sought on issues pertinent to the final result”. In Toronto Transit Union, at para. 9, the Court also noted that “[l]abour arbitration cases should almost always be decided finally before review is taken in this court…”

[27] In Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at para. 32, the Federal Court of Appeal explained that the rationale for avoiding judicial intervention before administrative proceedings are completed is to avoid the fragmentation and piecemeal approach to administrative proceedings, to eliminate unnecessary costs and delays, and to avoid the waste associated with applications for judicial review in cases where the issue may become moot at the end of the administrative process.

[28] The courts have recognized that there are exceptional circumstances in which an application for judicial review of an interlocutory decision may be appropriate. However, these are very rare. In Ackerman v. Ontario Provincial Police, 2010 ONSC 910, at para. 19, this Court stated that exceptional circumstances may exist where “the tribunal clearly lacked jurisdiction to proceed”, “where the decision, although interlocutory in most respects, determines a particular issue” or “where proceeding with the hearing would result in an unfair hearing or a breach of natural justice”. The Court went on to say that ‘[e]ven in those extreme situations, the remedy is discretionary and will be exercised sparingly”. In C.B. Powell Limited, at para. 33, the Federal Court held that, even concerns about procedural fairness or allegations of bias on their own are not sufficient to give rise to exceptional circumstances, especially where the ongoing administrative process allows for the issues to be raised and an effective remedy to be granted.
. The Society of United Professionals v. New Horizon System Solutions

In The Society of United Professionals v. New Horizon System Solutions (Ont CA, 2020) the Divisional Court considered when a judicial review application was premature while a reconsideration process remained (theoretically) in the tribunal (OLRB) below:
Reconsideration is Not an Adequate Alternative Remedy

[19] New Horizon relies on Volochay v. College of Massage Therapists, 2012 ONCA 541, where the Court of Appeal confirmed that barring exceptional circumstances, courts should not interfere with an administrative proceeding until the proceeding has run its course (at para. 68). In determining whether to refuse to hear an application for judicial review where there is, for example, an internal appeal or review process in the statutory scheme, a court must decide whether the applicant has an adequate alternative remedy.

[20] New Horizon submits that the applicant should have asked the Board to exercise its power to reconsider its decisions pursuant to s. 114(1) of the Act. I disagree, for the reasons of the Divisional Court in United Brotherhood of Carpenters and Joiners of America, Local 249 v. Matrix North American Construction Ltd., 2019 ONSC 5647 at paras. 39-42.

[21] As the Supreme Court of Canada stated in Ellis-Don Ltd. v. Ontario Labour Relations Board, 2001 SCC 4, a failure to seek reconsideration from the Board before proceeding to judicial review is not an absolute prerequisite to judicial review (at para. 57).

[22] As the Divisional Court noted in Matrix, the Board has a discretion whether to grant reconsideration, and it does so only in limited circumstances (at para. 39). Had The Society sought reconsideration of the Board’s decisions on ss. 17 and 70, the Board would likely have rejected the request as an attempt to reargue the case. This is not a situation where The Society raises a procedural fairness issue or a conflict in the jurisprudence that the Board might wish to address in a reconsideration.

[23] Accordingly, I would not give effect to the argument that this application for judicial review is premature.
. Khan v. Ontario (Director of Vehicle Inspection Standards)

In Khan v. Ontario (Director of Vehicle Inspection Standards) (Div Ct, 2004) the court held that judicial review is a remedy of last resort:
[5] The applicants failed to pursue their statutory right to appeal the decision of the Licence Suspension Appeal Board, pursuant to s.96(9) of the Highway Traffic Act. They now seek judicial review of that decision. Judicial review is a discretionary remedy. If the applicants wished to challenge the Board’s decision, they should have filed an appeal in Divisional Court, ordered the transcript and perfected the appeal within the time limit indicated for appeals. As they failed to take any of these steps or to proceed in any fashion in a timely manner, the application for judicial review is dismissed.
. Khoury v. Criminal Injuries Compensation Board

In Khoury v. Criminal Injuries Compensation Board (Div Ct, 2009) the court held similarly that judicial review is a remedy of last resort:
[3] Judicial review is a discretionary remedy. A party should exhaust his or her rights to appeal before seeking judicial review unless there are special circumstances (see Khan v. Ontario (Director of Vehicle Inspection Standards), (2004) CanLII 13078 (Div. Ct.) at paragraph 5).


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