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Judicial Review - Prematurity Exceptions (2). Canadian Union of Postal Workers v. Canada Post Corporation [agreed test case]
In Canadian Union of Postal Workers v. Canada Post Corporation (Div Court, 2024) the Divisional Court allowed an employer's motion to quash a federal labour JR, here where the union argued 'exceptional circumstances' to avoid the prematurity doctrine:[6] Courts will decline to hear an application for judicial review of an interlocutory decision until the completion of the underlying administrative proceeding, absent exceptional circumstances. This approach prevents fragmentation of the administrative process and a piecemeal court proceeding. By allowing the underlying proceeding to complete its course, this approach also respects the role of the administrative decision-maker: Sudbury and District Health Unit v. ONA, 2023 ONSC 2419, at para. 11; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, (“Volochay”) at paras. 68-69.
[7] The union submits there are exceptional and unique circumstances that justify allowing the application to proceed in this case. It submits the arbitrator made a final determination of a grievor’s substantive rights in the context of a test case. It also emphasizes that the parties and other grievors and bargaining unit members would be prejudiced by the uncertainty of any delays in determining the issue.
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Are there exceptional circumstances that justify this court exercising its discretion to judicially review the arbitrator’s preliminary award?
[9] The union does not dispute the arbitrator’s award is interlocutory. It is a preliminary award addressing only the question of whether the report placed in the employee’s file was within the time limit required by the collective agreement. The rest of the arbitration proceeding, including whether Canada Post had just cause to terminate the grievor’s employment, remains to be determined.
[10] The union submits exceptional circumstances exist in this case because the arbitrator’s decision was a binding test case with broad implications for other disputes. There are 11 other cases that CUPW says raise virtually identical issues with respect to the ten-day timeline in the relevant article of the collective agreement, article 10.02(b). In its submission, the parties have agreed to, in effect, treat Mr. Wong’s grievance as a test case and adjourn the 11 other similar termination grievances pending the disposition of the preliminary issues. The union also emphasizes that the arbitrator’s decision is “final and binding.” Under a provision of the collective agreement, the arbitrator’s decision binds the parties in all cases involving “identical and/or substantially identical circumstances.” Because of this, the arbitrator’s interpretation of article 10.02(b) will be binding on the 11 test cases.
[11] An agreement to treat the underlying decision as a test case does not on its own justify the court’s early intervention. Toronto Transit Commission v. Amalgamated Transit Union Local 113, 2020 ONSC 2642; (2020), 150 O.R. (3d) 602 was similar in that it involved the employer’s application to judicially review a preliminary issue in a case the parties agreed was one of several test cases. The test cases were also proceeding in the context of numerous grievances arising from terminations following a fraud investigation. Corbett J. on behalf of a panel of this court, found the application to be premature, expressly stating in the first paragraph: “[E]ven in a test case, such as this one, judicial review is generally not available from an arbitrator’s interlocutory decision.” He went on to explain at para. 9:I appreciate that this is a test case, but in my view the fact that the parties have agreed that the arbitrator’s decision in this case shall be applied in the remaining ten test cases is not sufficient to displace the considerations that weigh against judicial review of an interlocutory order. The case should proceed through the administrative process and any judicial review should be brought thereafter on issues that turn out to be of significance to the result. [12] The union distinguishes Toronto Transit Commission because of the nature of the issue sought to be judicially reviewed. It submits article 10.02(b) protects a substantive right related to job security. It describes article 10.02(b) as requiring timely notice to allow the employee to seek union representation and prepare a defence while the evidence is fresh.
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[15] I also do not find the argument that article 10.02(b) deals with a substantive right persuasive. In Toronto Transit Commission, the application was permitted to proceed even though the ruling permitted the admission of documents over which the union claimed settlement privilege, which is an important protection in our legal system. In Sudbury District Health Unit, the issue was whether the employer had engaged in prima facie discrimination based on creed – again, an important right – but the court found a judicial review of that finding to be premature. The Court of Appeal has emphasized that even questions of jurisdiction or breaches of procedural fairness do not entitle a party to early access to the courts: Volochay, 2012 ONCA 541, at paras. 63 and 67.
[16] Additionally, there is a specific downside to early intervention. In Sudbury District Health Unit, at para. 31, the court emphasized the importance of having all the administrative decision-maker’s findings, rather than their findings only on the isolated issue sought to be reviewed, because those findings may be “suffused with expertise, legitimate policy judgments and valuable regulatory expertise.” . Elsimali v. Pinedale Properties
In Elsimali v. Pinedale Properties (Div Court, 2024) the Divisional Court granted a landlord-initiated R2.1 ['frivolous and vexatious'] request to dismiss an RTA s.210 appeal, here where the landlord was successful on an LTB reconsideration (aka 'review') which was the reason for the appeal. As the recon decision was interlocutory, an appeal would require leave - thus the court lacked jurisdiction:[5] The appellants have made submissions in response to the notice under r. 2.1. They submit that the same policy reasons that support no appeals from interlocutory decisions support this appeal in the particular circumstances of this case. This does not assist the appellants. It is often the case that one side or the other submits that an interlocutory appeal would efficiently end the matter. The issue is jurisdiction.
[6] Further, the appellants assume that there will be a problem arising from the interpretation of Hassan. That remains to be seen. The reviewing Member did not purport to definitively interpret that case, quite the contrary. The Member found there “may” be a conflict with that case and that the hearing decision failed to “distinguish or address” that case. It is insufficient to say that there might be a problem with the final LTB decision, before it is rendered.
[7] The appellants also rely on decisions of this Court that permitted some discretion in the context of proposed interlocutory appeals from the Licence Appeal Tribunal, specifically The Personal Insurance Company v. Jia, 2020 ONSC 6361 and Security National Insurance Company v. Kumar, 2018 ONSC 3556. However, those decisions have been expressly not followed in what is now the leading case on the issue, finding no right of appeal from an interlocutory order: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874. There is no right of appeal from an interlocutory order of the LTB: Ainsley v. Proulx, 2023 ONSC 6308. There is no jurisdiction to hear this proposed appeal.
[8] Subrule 2.1.01(1) authorizes the Court to dismiss a proceeding as frivolous or vexatious or otherwise an abuse of the process of the court. However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. This is such a case.
[9] In the alternative, appellants ask that this proceedings be changed into an application for judicial review. This proposal raises the issue of prematurity – the application would be premature and the appellants would have to show exceptional circumstances before the Court would exercise its discretion to hear the application. I am not persuaded to convert this appeal in this r. 2.1 process, in which the respondent has not been given a right to make submissions.
[10] This proceeding is therefore dismissed under r. 2.1 of the Rules of Civil Procedure. . Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer)
In Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer) (Div Court, 2024) the Divisional Court considered JR prematurity and exceptions thereto:[37] The Ontario Court of Appeal set out the test for prematurity in Volochay, at para.68:[U]nless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court. The Federal Court of Appeal has endorsed this approach as well in Dugré v Canada (Attorney General), 2021 FCA 8, at para 37, framing the rule against prematurity, or interlocutory relief, as “next to absolute”. [38] This approach is also consistent with s. 138 of the CJA which specifically provides: “As far as possible, multiplicity of legal proceedings shall be avoided.”
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c. No Exceptional Circumstances
[49] Exceptional circumstances are ones that bring the rule of law into disrepute, which goes beyond breaching procedural fairness or even acting without jurisdiction: Dugré, at para. 35.
[50] The motion judge expressly considered and rejected at para. 21 the applicants’ argument that their allegations about FSRA’s conduct, gave rise to exceptional circumstances: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. [51] The applicants have failed to show that their situation is different from that of any other applicant requesting a hearing before the FST, similar to the situation in Dugré.
[52] Ontario (Attorney General) v. Hanif, 2013 ONSC 6991, 315 O.A.C. 368 (Div, Ct.) relied upon by the applicants is distinguishable. The finding of exceptional circumstances by the court turned on issues specific to the facts of that case. . London District Catholic School Board v. Weilgosh
In London District Catholic School Board v. Weilgosh (Div Court, 2024) the Divisional Court considered a JR by a school board against an HRTO interim decision that it had 'concurrent jurisdiction' to hear an HRC-labour matter which had been filed both before the HRTO and the OLRB. This is a furthering of recent convoluted Horrocks (SCC, 2021) doctrine addressing this same issue, setting out a test for exclusive versus concurrent jurisdiction.
Here the court considers whether a judicial review of an interim order (as here) came under a prematurity exception due to the importance of the issue [it did: "... broad implications for human rights disputes arising between unionized employers and employees throughout the province ..."]:Issue #1: Is the application premature, and if so, should the court hear it?
[14] The Applicant concedes the Decision is interlocutory in nature and that courts generally do not exercise their discretion to hear an application until the administrative proceeding is complete, absent exceptional circumstances.[8] The parties submit that there are exceptional circumstances in this case.
Appropriate for court to exercise its discretion to hear this judicial review application
[15] In Ontario (Community Safety and Correctional Services) v. De Lottinville,[9] this court exercised its discretion to judicially review an interim decision of the HRTO, finding that the HRTO treated the matter as a “test case” dealing with a significant legal issue, constituted a three-person tribunal and joined applications that raised the same issue.
[16] Similar circumstances arise here. The HRTO treated the preliminary issue as exceptional by:(a) joining Weilgosh’s Application with the McNulty Application for the purposes only of the preliminary issue;
(b) assigning case management of the preliminary issue to the HRTO’s Chair; and,
(c) granting intervenor status to four organizations, in addition to the OHRC being added as a party. [17] The Decision has broad implications for human rights disputes arising between unionized employers and employees throughout the province. Delaying this application until the conclusion of the hearing on the merits, which does not depend on any evidence or law relevant to the jurisdictional issue, will result in uncertainty for employers, employees and unions. This is an appropriate case for this court to exercise its discretion to hear this judicial review. . Rowe v. College of Nurses of Ontario and al.
In Rowe v. College of Nurses of Ontario and al. (Div Court, 2023) the Divisional Court stated that administrative interlocutory procedures are not subject to JR under the doctrine of prematurity, and here extends it to decisions by a Registrar of a professional regulatory body:[5] This court has long taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 CanLII 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.), at paragraph 17. The same principle should apply to a decision-maker such as the Registrar. A court has the discretion to hear an application for judicial review while administrative proceedings are still ongoing. For example, judicial intervention may be warranted in situations where the tribunal clearly lacks jurisdiction to proceed, where the decision, although interlocutory in most respects, determines a particular issue, in which a subpoena would be dispositive of the witnesses' privacy rights; or, where proceeding with the hearing would result in an unfair hearing or a breach of natural justice. Even in those extreme situations, the remedy is discretionary and will be exercised sparingly: Ontario College of Art, paragraph 18. No such circumstance obtains here, except perhaps the determination of an issue, but the record is insufficient for us to decide this question. The Applicant should submit documentation to the Registrar to support his request under subsection 23(6) or (7) of the Code. In the event of a refusal, a full record will exist.
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