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Judicial Review - 'Exhaustion': A Prematurity-AAR Merger?
COMMENT
This - I think, is law in progress. The court have labelled several doctrine differently [ie. "the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews.": Pleasant View Protection Corp. v. Niagara Escarpment Comm. (Ont Div Ct, 2025), para 31.], although they have been recognized as essentially the same. I prefer the title: 'exhaustion'.
. Pleasant View Protection Corp. v. Niagara Escarpment Comm.
In Pleasant View Protection Corp. v. Niagara Escarpment Comm. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR involving an NEC application, here brought more specifically against "the NEC decision to refer the application to the OLT" [the NEC (under the Niagara Escarpment Planning and Development Act) regime has an unusual administrative structuring with extensive preliminary application requirements].
Here the court concludes that the administrative order under JR was interlocutory, and thus the doctrine of exhaustion (prematurity) applied:Prematurity
[13] The NEC has not decided the merits of the proposed amendment. Rather, the merits will be decided by the OLT. The NEC has not decided that the proposed amendment is, or is not, an “urban use”. It has stated a provisional, interlocutory view on this point, but the merits of whether the proposed amendment would be an “urban use” will be for the OLT to decide. Indeed, nothing has been decided other than to refer the issues to the OLT for decision. The Applicant has expressly acknowledged these points (Applicant’s Factum, paras. 56 and 63).
[14] Judicial review is a discretionary remedy. Absent exceptional circumstances, this court will not interfere with interim determinations, such as the NEC’s decision to refer the merits to the OLT and will await a final determination of issues at the completion of the administrative process: Killian v. College of Physicians and Surgeons, 2022 ONSC 5931 (Div. Ct.); Berge v. College of Audiologists and Speech Pathologists of Ontario, 2022 ONSC 1220 (Div. Ct.). As stated by the Federal Court of Appeal in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 FCR 332 (cited with approval by the Ontario Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541):
[31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
[32] 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: see, e.g., Consolidated Maybrun, above, at paragraph 38; Greater Moncton International Airport Authority v. Public Service Alliance of Canada, 2008 FCA 68, at paragraph 1; Ontario College of Art v. Ontario (Human Rights Commission), 1993 CanLII 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.). 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: see, e.g., Consolidated Maybrun, above, at paragraph 43; Delmas v. Vancouver Stock Exchange, 1994 CanLII 3350 (BC SC), 119 D.L.R. (4th) 136 (B.C.S.C.), affd, 1995 CanLII 1305 (BC CA), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians of Ontario, 1991 CanLII 7126 (ON SC), 5 O.R. (3d) 439 (Gen. Div.). 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: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 48.
[15] Even in cases where an administrative decisionmaker decides a preliminary question on a final basis (such as jurisdiction), this court will not ordinarily entertain an early application on the basis of prematurity. Here, the preliminary point has not been decided on a final basis. It is very difficult to see how it is even arguable that a decision has been made that requires intervention from this court: the issue raised by the Applicant is live before the OLT and has not been disposed of on a final basis. See Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, Gill v. College of Physicians and Surgeons, 2021 ONSC 7549 (Div. Ct.); National Car Rental Inc. v. Municipal Property Assessment Corp., 2023 ONSC 2989 (Div. Ct.); Kadri v. Windsor Regional Hospital, 2019 ONSC 5427 (Div. Ct.); Sudbury and District Health Nurses v. Ontario Nurses Association, 2023 ONSC 4219; Mansuri v. Dominion of Canada General Insurance Co., 2023 ONSC 5764 (Div. Ct.); Ontario Health Insurance Plan (General Manager) v. Rao, 2017 ONSC 5548 (Div. Ct.).
[16] In my view, this application is clearly and obviously premature and ought not be entertained by this court. . Buffalocalf v. Nekaneet First Nation
In Buffalocalf v. Nekaneet First Nation (Fed CA, 2024) the Federal Court of Appeal considered the effective merger of the doctrines of prematurity and adequate alternative remedy (and more):2) The administrative process has not been exhausted
[40] Even if, for the sake of the argument, I was prepared to accept that the Federal Court did have jurisdiction to entertain the application, there is another compelling reason why it should have declined to do so. It is well established that judicial review is a discretionary remedy. When the administrative process has put in place remedial recourses, these should normally be exhausted before courts can step in. This is a cardinal rule of Canadian administrative law, and nowhere has it been more eloquently spelled out than in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61 (C.B. Powell), where this Court stated (at para. 31):Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [41] See also the cases cited at paragraph 30 of C.B. Powell, as well as: Strickland v. Canada (Attorney General), 2015 SCC 37 at paras. 40, 42; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10 at paras. 35-37 (Halifax); Dugré v. Canada (Attorney General), 2021 FCA 8 at para. 37; Viaguard Accu-Metrics Laboratory v. Standards Council of Canada, 2023 FCA 63 at paras. 4-5.
[42] As noted in the case law, there are practical and theoretical reasons for judicial restraint. One of the rationales for this rule is that a premature intervention by a reviewing court could deprive it of a full record, and of an administrative decision-maker’s factual and evidentiary findings. Such findings are often suffused with expertise, policy judgments and regulatory experience: C.B. Powell, at para. 32. Indeed, early judicial intervention may lead to the imposition by a court of what amounts to the "“correct”" interpretation of a legal question that an administrative tribunal could have reasonably interpreted differently: Halifax, at para. 36. Such caution is all the more critical in an aboriginal context, and especially when dealing with governance and electoral disputes, where courts are at a disadvantage compared to decision-makers steeped in or familiar with the culture and traditions of the Band within which a dispute arose.
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