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Judicial Review - Prematurity Exceptons (2). 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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