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Judicial Review - Prematurity (4)

. Harold The Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario

In Harold The Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2024) the Divisional Court considered a motion to quash a JR, here which challenged the issuance of a 'notice of proposal' by the 'Financial Services Regulatory Authority' (FSRA) to revoke and refuse to renew a mortgage broker license, to impose administrative penalties - and as well of the FSRA's publication of enforcement policy documents, and more. The applicants also filed for a full de novo hearing before the Financial Services Tribunal in relation to this matter.

Here the court addresses the preliminary Authority's 'notice of proposal' procedures, which it finds as premature from a JR perspective - since there are one full administrative hearing and subsequent appeals still available to it:
[8] Under the applicable statutory scheme, the applicants will be entitled to a full hearing process before the tribunal in respect of the allegations contained in the regulator’s notice of proposal. A very high degree of procedural protection is available to the applicants in light of the serious nature of the relief sought against them. The hearing is a full trial de novo. It is not just an appeal from the notice of proposal. The hearing outcome will be based on the evidence to be admitted, after pre-hearing disclosure, cross-examination of witnesses, and submissions.

[9] The regulator rightly distinguishes two types of claims brought by the applicants. They each result in different outcomes.

[10] First, it is plain and obvious and without any serious doubt that the applicants’ complaints about the conduct of the regulator in issuing the notice of proposal and its contents are premature.

[11] Mr. Solmon asserts that it is clear that the regulator issued a notice of proposal that was deliberately false and that the court needs to be available to police such egregious misconduct.

[12] That is neither the scheme of the relevant statutes nor of the Judicial Review Procedure Act on which the applicants rely. This case is on all fours with Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 (CanLII). In that precedent decision, a judge quashed a tribunal’s decision to appoint an investigator. The decision was made in direct violation of the statutory procedural right of the target of the investigation to be heard prior to the decision being made. In Volochay, even with the breach of a statute, the Court of Appeal held that proceedings must be left to run their course if there is an adequate alternative to the court becoming involved and absent exceptional circumstances.

[13] In this case, the applicants’ reliance on very general duties of a regulator in ss. 3 and 6 of the Financial Services Regulatory Authority of Ontario Act, 2016, SO 2016, c 37, Sch 8, do not really add any more strength to the case than is available from the general legal notion that government bodies should obey the law, behave fairly, and should not lie.

[14] Even assuming for the sake of argument that the applicants can establish that the regulator deliberately issued and publicized falsehoods about the applicants in the notice of proposal, this application still runs right into the hearing before the Financial Services Tribunal provided by the Mortgage Brokerages, Lenders and Administrators Act, 2006, SO 2006, c 29.

[15] In that hearing, the regulator will bear the burden of proving the allegations in its notice of proposal. The applicants will be entitled to defend themselves fully and fairly. At the end of the day, the tribunal will make findings of fact and apply the appropriate law. If it finds that the regulator has been untruthful or violated its duties, it will consider the appropriate outcome. If the applicants are then not content with the outcome, they have further appeal rights to the court and possibly also the ability to seek judicial review for matters that do not fall within appeal rights.

[16] I do not agree with Mr. Solmon that the facts are uncontested or clear. I understand why the applicants allege the regulator said things to which they object. But I would not be able to make findings of fact on the written record before me and I do not believe that a panel of this court will be any better off on an early judicial review. The panel is a review body. It is not a fact-finding body generally.

[17] The place for findings of fact to be made on disputed evidence is before the tribunal.

[18] Moreover, any procedural unfairness caused to the applicants by the delivery of the notice of proposal containing incorrect facts can and will be cured by a full trial process before the tribunal with a high standard of procedural fairness and natural justice enforced.

[19] I note that I do not necessarily agree with the tribunal’s decision in this case that it has no authority to review the conduct of the regulator or to cause it to take steps deemed necessary for fairness of the proceeding before the tribunal. The notice of proposal is not necessarily spent or rendered a dead letter by the delivery of the request for a hearing. The notice of proposal remains the regulator’s statement of allegations that guides the issues before the tribunal.

[20] But even if the applicants ask the tribunal to give some remedy against the regulator and the tribunal declines after a full hearing, the applicants will still have their appeal and review rights before the court. In those hearings, the court will be armed with a full evidentiary record, findings of fact on the contested evidence, and the specialist tribunal’s views and reasoning on the issues that were argued before it by the parties.

[21] Under Volochay, the tribunal proceeding must be left to run its course as it is a very adequate alternative to the relief sought contesting the notice of proposal and the regulator’s conduct in issuing it. There are no exceptional circumstances at play in my view. Mr., Solmon submits that this case is exceptional because the claim is that the regulator included untruthful allegations in the notice of proposal deliberately. That does not take the case outside the principle in Volochay. Moreover, the strategy that, “the best defence is a good offence” is not as unusual or exceptional before the court as Mr. Solmon surmises.

[22] It follows that I quash as premature the portion of the application challenging the validity of the notice of proposal.
. Leandro v. New Tecumseth (Town of)

In Leandro v. New Tecumseth (Town of) (Div Court, 2023) the Divisional Court considers (and allowed) an appeal from a denied R38 application for a declaration that a cannabis operation was allowed under a zoning by-law. These quotes raise an interesting (and I think correct generally) interpretation of the doctrine of 'prematurity' (which can apply to judicial review and appeals in administrative tribunal contexts) does not have application to 'regular' RCP R38 applications:
[38] With respect to prematurity, it is a doctrine that prohibits the appeal or judicial review of decisions made during the course of a proceeding before an administrative tribunal has completed its proceedings. Its purpose is to avoid the fragmentation and costs associated with forays into court before a tribunal has completed its process. Underlying the doctrine is the realization that only at the end of the process can it be known whether there is any necessity to appeal or judicially review an impugned decision: see Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69. In the present case, the application was not an attempt to appeal or judicially review the decisions of either the OLT or the NFPPB. It was a separate application to ask the court to determine an issue that was not before either of those tribunals and that neither could determine. Thus, the doctrine of prematurity has no application.
. Grus v. Renwick and Chief of Police, Ottawa Police Service

In Grus v. Renwick and Chief of Police, Ottawa Police Service (Div Court, 2023) the Divisional Court (single judge) cites case authorities for the principle that judicial review of interlocatory administrative proceedings is premature:
[17] While the section reads “despite any right of appeal”, the relevant caselaw has interpreted the discretion afforded to the courts under s. 2 of the JRPA as follows:
The position traditionally taken by the courts on the prematurity issue finds its foundation in respect for the legislative intent that reposed the decision-making power in the tribunal and deference to that tribunal. It is inconsistent with those principles to permit participants before an administrative tribunal to come running to Divisional Court on judicial review prior to having exhausted all of their remedies and appeal routes within the administrative regime. [Ackerman v. Ontario Provincial Police, 2010 ONSC 910, 11 Admin L.R. (5th) 304, at para. 18.]
[18] Furthermore, in Lourenco v. Hegedus, [2017 ONSC 3872] Corbett J. provided the following view on this same principle, at para. 6:
In rare cases this court will intervene on an application for judicial review in the midst of an administrative process where there are strong reasons to believe that the ongoing process is so deeply flawed that there is a strong likelihood that it will have to be run over again, usually on the basis of bias, reasonable apprehension of bias or want of jurisdiction. This does not mean that judicial review is available before the conclusion of administrative proceedings in any case where an allegation of this kind is made. It must be emphasized that early judicial review is the rare exception, not the rule, and will only be permitted in rare cases where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceedings without interruption until their conclusion. Analogies can be drawn to criminal prosecutions where it is very rare indeed for a proceeding to be interrupted for judicial review or appeal prior to the conclusion of the proceeding.
[19] Finally, in terms of the exceptional circumstances, the Court of Appeal for Ontario confirmed in Volochay v. College of Massage Therapists of Ontario [2012 ONCA 541, 111 O.R. (3d) 561, at para. 70] that exceptional circumstances are still required to justify early intervention.
. 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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Last modified: 18-04-24
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