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Judicial Review - Prematurity (4)

. Oz v. Shearer

In Oz v. Shearer (Div Court, 2023) the Divisional Court cites law that a JR of an interlocutory tribunal decision will not be heard on the discretionary grounds that it is premature:
[27] In the absence of a right of appeal, the Tenant must seek leave to appeal the interlocutory decision of the LTB.

[28] Alternatively, he may bring an application for judicial review, but that will also be subject to the jurisprudential restraints relating to judicial review of interlocutory decisions. It is well-established that, in most cases, reviewing courts will decline to engage in a judicial review until the administrative proceeding has been completed. This principle was summarized in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at paras. 31-32, quoted with approval by the Ontario Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 69:
Absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the 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 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.
[29] See the summary of case law set out in National Car Rental Inc. et al. v Municipal Property Assessment Corp. et al., 2023 ONSC 2989, at paras. 29 - 32.
. Deokaran v. Law Society Tribunal and Law Society of Ontario

In Deokaran v. Law Society Tribunal and Law Society of Ontario (Div Court, 2023) the Divisional Court considered prematurity in a JR context (here, interlocutory orders were challenged), including any possible exceptions:
[11] In this case, Ms. Deokaran’s applications were patently premature. This court has repeatedly emphasized the longstanding principle that it will not intervene in administrative proceedings unless there are exceptional circumstances. Further, if there is an adequate alternative remedy, the courts should not intervene before the administrative proceeding has run its course: Volochay v.College of Massage Therapists, 2012 ONCA 541, 111 O.R. (3d) 561, at paras. 68-70; Sudbury and District Health Unit v. Ontario Nurses’ Association, 2023 ONSC 2419, [2023] O.J. No. 2454, at para. 11.

[12] Here, both applications arose from interim decisions in Ms. Deokaran’s ongoing conduct proceedings at the Tribunal. The Tribunal has not yet had a chance to complete its process. The hearing is yet to take place before the Hearing Division of the Tribunal. Once that is complete, Ms. Deokaran would have a right of appeal to the Tribunal’s Appeal Division. She also would have a right of appeal from a final decision of the Appeal Division to this court.

[13] There are no extraordinary circumstances that would justify the fragmentation of proceedings in this case. Raising a human rights or Charter issue does not constitute an extraordinary circumstance: Kustka v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2325, [2023] O.J. No. 1733, at para. 31. Moreover, in the circumstances of this case, it appears Ms. Deokaran did not complete the process Mr. Mercer offered for her to pursue her human rights claim. In his June 5, 2023 endorsement, Mr. Mercer allowed Ms. Deokaran to file evidence in support of her claim that the hearing should not proceed for religious reasons. He stated that the scheduling of the hearing starting November 20 was “subject to adjustment if accommodation is shown to be required.” There is no indication on the record, nor was it suggested in submissions, that Ms. Deokaran ever pursued this opportunity.

[14] There is also no procedural unfairness that constitutes an extraordinary circumstance to justify fragmenting the proceeding. Characterizing an issue as a question of jurisdiction or denial of procedural fairness does not automatically create “exceptional circumstances” warranting early judicial intervention: Volochay at para. 67; Sudbury and District Health Unit, at para. 14.

....

[17] In Gage, the public commissioner had failed to give a police constable notice of a board of inquiry review of his alleged misconduct. This court referred to the “obvious” and “fundamental unfairness” of requiring the police constable to proceed through a hearing in the circumstances. It expressly found the case to constitute “one of those exceptional cases” where the court should exercise its inherent jurisdiction to interfere prior to the completion of the administrative proceedings.

[18] It is evident on the face of these applications that they do not fall within the type of exceptional circumstances found in those cases. There is no manifest procedural unfairness that would justify fragmenting the Tribunal proceedings.
. Windrift Adventures Inc. v. Chief Animal Welfare Inspector

In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considers two JRs [one by a dog-owner and one by the Chief Animal Welfare Inspector (CAWI)] against animal care cost 'Statement of Account' decisions of the ACRB (Animal Care Review Board) under the Provincial Animal Welfare Services Act (PAWS), here regarding a large-scale dog seizure.

In these quotes the court denied a JR prematurity argument [like in Pryde] on grounds that it would contribute to a 'multiplicity' of proceedings:
[26] Windrift failed to exhaust their remedies before the Board as they did not seek reconsideration of the Decision. Parties may request a reconsideration under Rule 18.2 of the Board’s Common Rules of Practice & Procedure.

....

[28] As set out in Chief Animal Welfare Inspector v. Jackson, 2022 ONSC 872 (Div. Ct.), at para. 38, the court has the discretion to decline to hear an application where the applicant has not exhausted alternative remedies. The Court in Jackson referenced, in the same paragraph, the Ontario Court of Appeal’s statement in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, that this “principle respects administrative decision-making and a legislative intent that a party exhaust internal review processes before asking a court to intervene.”

[29] As in Pryde, the facts in this case are different than in Jackson. This is a multiple issue case. The record is voluminous. The CAWI is also seeking judicial review. The CAWI did request a reconsideration. The issues in the CAWI’s judicial review are significantly interwoven with the issues in Windrift’s judicial review. The two judicial reviews cannot be separated. To require Windrift to seek reconsideration would delay the CAWI’s judicial review. Even if the two applications could be separated, to not proceed with both applications at the same time would fragment the proceedings, possibly lead to parallel proceedings, and possibly inconsistent results.

[30] In these circumstances, the court is exercising its discretion to permit Windrift’s application to proceed even though it has not exhausted internal review processes by seeking a reconsideration. Given the interwoven nature of the two applications and the comprehensive record filed, to delay the applications would not be in the interests of the parties or of the administration of justice.

[31] The decision to proceed with Windrift’s application in these circumstances, is very fact specific. It should not be taken to deviate from the general principle that a party should exhaust internal review processes before coming to the court. It should also not be taken by Windrift as permission to continue its practice of not applying for reconsideration before commencing a judicial review application.
. Murray v. Independent Police Review Director (Ontario)

In Murray v. Independent Police Review Director (Ontario) (Div Court, 2023) the Divisional Court dismissed a JR on prematurity on unusual grounds, them being a form of 'statutory mootness' that could - conceivably - been excepted if a resigned police officer was re-employed within five years. The court held that, until the five years was expired - with it's possible re-hiring, the application was premature:
[14] The applicant’s complaint was found to be unsubstantiated by the Chief of the Windsor Police Service. The applicant then asked the OIPRD to conduct a review of that decision pursuant to section 71 of the PSA. That review had to be stopped pursuant to section 90 of the PSA, because the subject officers resigned on August 9, 2022 and October 12, 2022 and the OIPRD therefore lost jurisdiction over the complaints.

[15] Section 90 of the PSA states:
(1) If at any time after a complaint about the conduct of a police officer is made under this Part and before the complaint is finally disposed of the police officer resigns, no further action shall be taken under this Part in respect of the complaint after the date of resignation.

... .

(3) Despite subsection (1), if the police officer who resigned is employed by a police force within five years of the date of resignation, this Part shall apply to the police officer in accordance with the regulations.

(4) In the circumstances described in subsection (3), if the police officer is employed with a police force other than the police force from which he or she resigned, the police officer is deemed, for the purposes of the complaints process under this Part, to be employed with the police force from which he or she resigned, except that an action that shall be taken with respect to the matter by a chief of police under subsection 84 (1) or by a board under subsection 84 (2) or 85 (3) after the complaints process is resumed shall be taken by the chief of police or board, as the case may be, of the police force in which the police officer is employed following the resignation.
[16] If a subject officer resigns before a complaint is finally disposed of, section 90 requires that the complaint process will be stopped at whatever stage it has reached as of the date of the resignation. However, that complaint may be restarted if the subject officer becomes employed as a police officer with any police service in Ontario within five years of his or her resignation. In this case, the five years will not elapse until August and October 2027.

[17] Thus, the process below is effectively in abeyance, but could resume if either of the subject officers becomes employed as a police officer with any police service in Ontario during the five-year period specified in s. 90 of the PSA. Until the process below resumes, or the five-year period runs its course, the process below has not been completed, and recourse to this court is premature: Kahissay v. Insurance, 2023 ONSC 3650 (Div. Ct.) and Awada v. Allstate Insurance Company, 2021 ONSC 8108 (Div. Ct.); see also Ontario (Liquor Control Board) v. Lifford Wine Agencies Ltd. (2005), 2005 CanLII 25179 (ON CA), 76 OR (3d) 401 (CA); Aon Inc. v. Towerhill Developments Inc., [2010] O.J. No. 2698 (Div. Ct.).
. Aviva Insurance Canada v Harland-Bettany

In Aviva Insurance Canada v Harland-Bettany (Div Court, 2023) the Divisional Court considers the prematurity principle, here in a SABS (auto insurance) administrative appeal matter. In the event (which occured) that the court felt it lacked jurisdiction to hear the matter as an appeal, the parties consented to the matter being converted to a JR - however the court exercised it's discretion not to do so, effectively for the same 'prematurity' reasons:
[8] In Penney v. The Co-Operators General Insurance Company, 2022 ONSC 3874 (Div. Ct.), the Divisional Court confirmed the principle that this Court has no jurisdiction to hear an appeal from an interlocutory decision of the LAT. Writing for the Court, Swinton J. states at para. 26 as follows:
Given the language of s.11(1) and (6) of the LAT Act, read in the context of the entire statute and the objective of preventing fragmentation of and delay in administrative proceedings, I conclude that this Court has no jurisdiction to hear an appeal of an interlocutory decision of the LAT. In my view, this conclusion is consistent with the instruction from the Supreme Court of Canada in Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 that the courts should respect the Legislature’s decisions with respect to institutional design (at paras. 24, 36). Here, the Legislature choose not to confer a right to appeal interlocutory decisions of the LAT to the Divisional Court.
[9] The Divisional Court has consistently followed the decision in Penney: Grewal v. Peel Mutual Insurance Company, 2022 ONSC 4082 (Div. Ct.), at paras. 2-4; Allo v. Licence Appeal Tribunal et al., 2022 ONSC 6368 (Div. Ct.), at paras. 8-13; Kahissay v. Intact Insurance Company, 2022 ONSC 6537 (Div. Ct.), at paras. 4-7; Tamayo v. Licence Appeal Tribunal et al., 2023 ONSC 1692 (Div. Ct.), at para. 4.

[10] In Grewal, the Court quotes Law Society of Upper Canada v. Piersanti, 2018 ONSC 640, at para. 16, to explain why an appeal lies only from a final decision of an administrative tribunal:
In regulatory proceedings, fragmentation and/or bifurcation of issues and piecemeal court proceedings are discouraged. Rather the preferred course is to allow matters to run their full course before the tribunal and then consider all the legal issues arising from the proceeding, following its conclusion. In conduct proceedings that involves a finding of professional misconduct or conduct unbecoming.
[11] The Court found the same policy considerations applied to LAT decisions: “It is preferable to avoid the fragmentation and delay in the administrative process that would result if appeals were available before there has been a final determination of the claim”: Grewal, at para. 7.

[12] As the Court states in Delic v. Enrietti-Zoppo, 2022 ONSC 1627 (Div. Ct.), at para. 7:
It is not the form of the order, but its effect that governs. An interlocutory decision can contain final orders. An order is final if it disposes finally of a claim. An order is not final just because it is one of substance. Where the effect of an order is to continue the inquiry, it is not final.

Examining its effect, the LAT’s preliminary issue decision is interlocutory in nature. It does not finally dispose of the substantive issues in the insured’s underlying application before the LAT.
[13] The decision in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (Div. Ct.), was decided before the pronouncement in Penney. In any event, Porter is distinguishable. Unlike the case before us, the only issue to be determined by the LAT in Porter was whether the incident was an “accident” within the meaning of the Schedule. Here, however, the insured’s underlying disputes have not been determined.

[14] In accordance with the reasoning in Penney and the objective of preventing fragmentation of and delay in administrative proceedings, we conclude that at this juncture, the Court lacks jurisdiction to hear this appeal from the LAT’s preliminary issue decision. To hold otherwise would mean that each time a preliminary issue is determined by the LAT an appeal could be brought to this Court. This would defeat the underlying objective of preventing fragmentation and delay, underscored in Piersanti, Penny and Grewal.

[15] This does not mean that Aviva has no right to appeal the preliminary issue decision. The Court will have jurisdiction to hear this issue following the final determination of the underlying matters currently before the LAT. At that time, all appeal rights can be exercised together, thereby avoiding fragmentation, delay and the risk of duplicate or contradictory evidentiary findings. This is the most just and efficient way of proceeding.

Conclusion

[16] Regarding the preliminary issue raised we conclude that this Court does not have jurisdiction to hear this appeal.

[17] The day before the hearing of the proposed appeal, the parties submitted a joint responding factum on jurisdiction. They requested that if there was no jurisdiction that the Court convert the proposed appeal into an application for judicial review.

[17] As set out in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, at paras. 42-43, it is only in rare cases that the Court will exercise the discretionary remedy of judicial review given the legislative scheme for the resolution of disputes over SABs. The legislative intent is to limit access to the courts for these disputes. Further, in this case, Aviva would need to overcome the well-established principle of prematurity that courts should not interfere with ongoing administrative processes absent exceptional circumstances. The Court therefore declines the parties’ request to convert the proposed appeal into an application for judicial review.




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