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Judicial Review - Prematurity (5). Muslim Association of Canada v. Canada (Attorney General)
In Muslim Association of Canada v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismisses a Charter JR against a pending CRA charity audit, here on grounds of prematurity and adequate alternative remedy:[2] The appellant argues that the application judge erred by improperly applying the prematurity principle to an application for Charter relief, and in finding that the administrative appeal process under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the “ITA”) provided the appellant with an effective alternate means to obtain the relief it seeks.
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(2) The Application Judge did not err in applying the prematurity principle in the circumstances of this case
[19] The appellant argues that the prematurity principle has been developed and applied in the context of judicial review proceedings and has no relevance to an application for relief under s. 24(1) of the Charter. It relies in particular on cases such as R v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at paras. 19 and 36, and Henry v. Canada (Attorney General), 2010 BCSC 610, 211 C.R.R. (2d) 53, at paras. 157-80, aff’d 2014 BCCA 30, 53 B.C.L.R. (5th) 282, leave to appeal refused, [2014] S.C.C.A. No. 134, where Charter relief was granted even though no actual Charter violation of the applicant’s rights had yet occurred.
[20] This argument was raised before the application judge, who distinguished Mills and Henry on the basis that those cases involved challenges to the constitutionality of legislation. The application judge contrasted those cases with the proceeding before him, which the parties agreed involved the application of valid legislation to the facts of a particular case. The application judge further observed that the prematurity principle had little, if anything, to do with the technical form of the action but much to do with concerns about the appropriate use of judicial resources.
[21] We agree with the application judge’s analysis of this issue. Courts necessarily have discretion to refuse to decide a case based on an insufficient factual record. This principle is grounded in the inherent jurisdiction of the court to manage its own process and is not dependent on the manner in which the proceeding is framed.
[22] This is entirely consistent with Mills and Henry since, in both those cases, the court found that there was a sufficient factual record to determine the legal question presented. In contrast, the application judge found the factual record in this proceeding to be preliminary and incomplete. He therefore exercised his discretion to dismiss the application as premature, a determination that is reviewable on a standard of palpable and overriding error.
[23] The appellant has identified no error in that finding, much less one that is palpable and overriding, instead arguing that the application judge should simply not have considered the prematurity principle at all. As we have explained, the application judge correctly found that he had discretion to dismiss the application for prematurity, and made no reviewable error in declining to make legal determinations based on an insufficient factual record.
[24] Accordingly, we dismiss this ground of appeal.
(3) The application judge did not err in requiring the appellant to complete the internal CRA review and appeal process before bringing a court proceeding
[25] The appellant argues that the application judge did not appreciate that the administrative appeal process under the ITA fails to provide it with an effective alternative means to achieve the remedy it seeks. The appellant argues in particular that the Tax Court does not have jurisdiction to grant redress for the Audit Process Concerns in the event that the CRA imposes a financial penalty following completion of the Audit, since the Tax Court’s jurisdiction is limited to confirming, varying, or setting aside a CRA assessment.
[26] In considering this ground of appeal, we regard the following considerations as relevant.
[27] First, the application judge approached the dispute on the basis that the CRA had not yet imposed a financial penalty and may or may not ultimately decide to do so. As such, the basis for any such penalty, and the grounds upon which it might be reviewed or appealed, were unknown. Moreover, while we have not reviewed the Audit decision, we were advised in oral submissions that the CRA is no longer seeking revocation of the appellant’s charitable status (as was recommended in the AFL).
[28] Second, in considering an objection to an assessment or a notice of intent to revoke charitable status, and in vacating, confirming, or varying it, the CRA has an obligation to consider, not only whether the decision respects Charter rights, but the relevant values underlying such rights: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at para. 66.
[29] Third, in an appeal of a CRA assessment, the Tax Court has jurisdiction to grant a remedy pursuant to s. 24(1) of the Charter. This includes the right to vacate the assessment where the evidence obtained by the CRA to support it was collected in a manner that violates Charter rights and no other evidence is available to support it: O’Neill Motors Ltd. v. Canada (1998), 1998 CanLII 9070 (FCA), 162 D.L.R. (4th) 248 (Fed. C.A.), at pp. 251-54.
[30] Fourth, the application judge dismissed the application on grounds of prematurity, not jurisdiction. In other words, the parties do not dispute that the Superior Court has independent jurisdiction to grant relief for Charter breaches that may have been committed by the CRA in the process of conducting an audit, consistent with Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585. It follows that, once a final CRA decision has been made (i.e. after any internal CRA reviews and appeals have been completed), the fact that the appellant may then have a right to appeal a penalty assessment to the Tax Court would not, in itself, bar the Superior Court from exercising its independent jurisdiction to grant Charter relief arising from the Audit Process Concerns. We agree with the appellant that the application judge seemed to conclude otherwise, a finding with which we disagree. . Malekazadeh v. Ontario Labour Relations Board
In Malekazadeh v. Ontario Labour Relations Board (Div Court, 2024) the Divisional Court adjourned a labour JR on the basis of prematurity, here where 3 of 4 applications were final but one was still pending a reconsideration:[2] The City of Toronto and the Canadian Union of Public Employees, Local 79 (the Union) submit that this application should be dismissed as premature. After hearing submissions, we adjourned the application due to prematurity with reasons to follow. These are those reasons.
[3] The applicant commenced four applications at the OLRB, alleging breach of the duty of fair representation under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A,, reprisals resulting a breach of the Occupational Health and Safety Act, , R.S.O. 1990, c. O.1, unfair labour practices, and breaches of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A. The applications all arise from the same employment history.
[4] The applications made to the OLRB were dismissed for failure to show a prima facie case. On three of the four applications, the applicant’s requests for reconsideration were unsuccessful. On the fourth application, regarding the duty of fair representation, the OLRB granted the request for reconsideration. That matter is ongoing at the OLRB.
[5] It is settled law that applications for judicial review of the decisions of administrative tribunals should not be brought until the completion of the tribunal’s proceedings. They are premature. Unless there are exceptional circumstances, the administrative proceedings should be completed first. In this case, one application is ongoing and there may then be a reconsideration arising from that decision.
[6] The applicant submits that there are exceptional circumstances. Among other things, she emphasizes that only a small part of her OLRB proceedings remain outstanding, she has already prepared substantial court materials, and she has waited a long time for her court hearing. She also submits that she continues to prepare materials.
[7] We recognize that three of the four OLRB applications have been finally disposed of. However, one remains and all four arise from a common factual basis. In the circumstances of this case, to proceed now would create the very fragmentation, inefficiency and risk of inconsistent findings that inform the prematurity principle. We therefore conclude that the application is premature, and we do not exercise our discretion to hear it. We have addressed some of the applicant’s concerns through our disposition of the application.
[8] The application for judicial review is adjourned to a date to be set by the Registrar after the final decision on the applicant’s outstanding application before the OLRB. In particular, within 60 days from the decision of the OLRB on the remaining application, or within 60 days from the reconsideration decision (if reconsideration is requested), the applicant shall serve and file an amended notice of application or advise the Court if she does not intend to proceed. If proceeding, the parties shall request a case conference to address scheduling of the needed steps for the application for judicial review and directions for scheduling the hearing. The court materials that have already been delivered on this application may still be used, with any amendments permitted when the new schedule is set.
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