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Judicial Review - Prematurity Exceptions (2). SkipTheDishes Restaurant Services Inc. v. Canadian Union of Postal Workers
In SkipTheDishes Restaurant Services Inc. v. Canadian Union of Postal Workers (Ont Divisional Ct, 2025) the Divisional Court dismissed a labour JR, here on grounds of prematurity as the impugned decision was interlocutory (which normally bars JR in an administrative context), and did not meet the 'exceptional circumstances' exception to that rule:D. ANALYSIS ON PREMATURITY
[29] Vice Chair Morrison’s decision is an interlocutory one. Proceedings in the certification application are scheduled before the Board and remain ongoing. The Board has booked multiple hearing days to consider whether the couriers are employees/dependent contractors or independent contractors. Even apart from the independent/dependent contractor determination, Vice Chair Morrison expressly left it as a live issue whether Skip will be allowed to make submissions on whether any individual courier is properly in the voter constituency so that their ballot will be counted in the application.[1] Put differently, it remains to be decided whether Skip will be permitted to add to or challenge the voters’ list.
[30] When it comes to the judicial review of an interlocutory decision of an administrative tribunal, the law is clear: absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69 citing C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] F.C.R. 332, at para. 31; College of Physicians and Surgeons of Ontario v. Kilian, 2024 ONCA 52, at paras. 28-29.
[31] Skip submits that this case is exceptional. It relies upon factors identified by the caselaw that guide the exercise of discretion in hearing a judicial review of an interlocutory decision:1. The hardship to the applicant if the administrative proceedings continue without the Court’s intervention;
2. The waste that will result if the applicant has to wait until the end of the administrative proceedings to bring an application for judicial review;
3. Delay in the administrative proceedings if the Court decides to hear the application for judicial review now;
4. Whether fragmenting the process and the issues will create additional litigation; and
5. The strength of the application for judicial review. See Whearty v. Waypoint Centre for Mental Health Care, 2024 ONSC 5638 (Div. Ct.), at para. 9, citing Toronto Transit Commission v. Amalgamated Transit Union Loc 113, 2020 ONSC 2642 (Div. Ct.), 150 O.R. (3d) 602, at para. 11.
[32] The doctrine of prematurity, as it has developed in the law of judicial review prevents the fragmentation of administrative proceedings, reduces costs and delays, and ensures that judicial review is used as a last resort and only after the administrative decision-making process has been exhausted. Further, allowing the underlying proceeding to complete its course, respects the role of the administrative decision-maker: Canadian Union of Postal Workers v. Canada Post Corporation, 2024 ONSC 5924 (Div. Ct.), at para. 6; Sudbury and District Health Unit v. ONA, 2023 ONSC 2419 (Div. Ct.), at para 11; C.B. Powell Limited, at paras. 30-33; Volochay, at paras. 68-69; Malekzadeh v. Ontario Labour Relations Board, 2024 ONSC 2559 (Div. Ct.), at para. 7. . Equity Builders Ltd. et al. v. Landlord and Tenant Board et al. [LTB recon as AAR versus JR discretion]
In Equity Builders Ltd. et al. v. Landlord and Tenant Board et al. (Ont Divisional Ct, 2025) the Divisional Court (mostly) dismissed a multiple-proceeding combination of both LL-initiated JRs and RTA s.210 appeals, here respecting multiple units in a Sarnia apartment building. After a fire "the Chief Building Official for the City of Sarnia issued an order to the Landlord directing that the premises be vacated", followed by a second order several days later restricting access to a lesser number of units. The LL subsequently refused re-entry to tenants not covered by the later less restrictive order, eventually resulting in RTA orders of illegal lock-out for numerous units - and that "the Landlords had substantially interfered with the reasonable enjoyment by the Tenants of their units; and found that the Landlords obstructed, coerced, threatened or interfered with the Tenants".
Here the court considers a JR prematurity issue were the advanced adequate alternative remedy is an administrative LTB reconsideration, and it's interaction with the court's JR discretion [JRPA s.2(1,5)]:Should this Court Hear the Application for Judicial Review
[60] The Tenants submit that this court should decline to hear the application for judicial review because the Tenants failed to request a reconsideration of the Board’s orders. Under Rule 26.1 of the Board’s Rules of Procedure:Any party may request review of any order which makes a final determination of the party’s rights. For these purposes an interim order may contain a final determination of rights. A person who is directly affected by a final order may also request a review of an order. [61] Rule 26.8 (e) of the Board’s Rules stipulates that a request for review must provide sufficient information to support a preliminary finding of an alleged serious error or an explanation of why the requestor was not reasonably able to participate in the hearing.
[62] The Board’s guideline contemplates that “serious errors” justifying a review of a decision include “unreasonable finding[s] of fact on a material issue” and “unreasonable exercise[s] of discretion which [result] in an order outside the usual range of remedies or results and where there are no reasons explaining the result”.
[63] According to the Tenants, the Board’s discretion to review is broad, and in this case, reconsideration would have been an adequate alternative remedy that should have been exhausted before applying for judicial review.
[64] In Yatar, the Supreme Court of Canada emphasized that determining the appropriateness of judicial review is ultimately a “balancing exercise” that goes beyond simply assessing the adequacy of the alternative remedy. As put by the Court, at para. 64:This Court in Strickland, at para. 43, also emphasizes the appropriateness of judicial review in the circumstances, referring to a “balancing exercise”:The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case. Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis…(citations omitted, emphasis in original). [65] The Tenants are not suggesting that this court should not hear the Landlords’ appeal because of a failure to apply for a review of the Board’s orders. Further, their factum correctly points out that the grounds with respect to both the appeal and the application for judicial review are closely connected and intertwined. Therefore, from a judicial economy perspective, hearing the applications for judicial review at the same time as the appeals will not entail a significant use of additional judicial resources.
[66] In United Brotherhood of Carpenters (Local 249) v. Matrix North Construction Ltd., 2019 ONSC 5647, the Divisional Court found that it may be appropriate to require reconsideration before judicial review when “there are conflicting decisions by the Board on a matter of policy, and the Court determines that the Board should be given an opportunity to clarify the issue”: at para. 41. No such issue is raised in this proceeding. Another instance that might justify requiring judicial review might be where there is an allegation of procedural fairness, and the Court determines that the Board should have an opportunity to provide a remedy for the problem. However, the Tenants have conceded that the procedural fairness issues raised in this case are errors of law and, therefore, this court will be addressing them in the context of the appeal.
[67] To use the language adopted in Yatar, supra, the balance of convenience favours hearing the issues raised in the applications for judicial review at the same time as the issues raised in the appeal. . Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario v. Toronto District School Board [reconsideration not always required to avoid prematurity]
In Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario v. Toronto District School Board (Div Court, 2024) the Ontario Divisional Court dismissed a labour JR, this from an unfair labour practice complaint decision whereby the Board initially "exercised its discretion under s. 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the “Act”) to dismiss the Complaint without convening a hearing on the merits".
The court considered whether an OLRB JR is premature in the absence of reconsideration request:[63] Section 114(1) of the Act [SS: 'Jurisdiction'] confers on the Board the discretionary power to reconsider its decisions “at any time, if it considers it advisable to do so”. To encourage finality, the Board’s threshold for reconsideration is a high one: Anonymous Applicant v. CAW-Canada, Local 40, 2012 CanLII 30623 (Ont. L.R.B.).
[64] While this Court clearly has the discretion to dismiss an application for judicial review because the applicant has not sought reconsideration, the Supreme Court of Canada has held that reconsideration is not an absolute prerequisite to judicial review Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 57.
[65] In United Brotherhood of Carpenters (Local 249) v. Matrix North Construction Ltd., 2019 ONSC 5647, [2019] O.L.R.B. Rep. 691, the Divisional Court refused to dismiss an application for judicial review as premature because the applicant had not sought reconsideration. In doing so the Court noted that reconsideration is a discretionary rather than a mandatory part of the Board’s processes and that historically the Board has only granted reconsideration requests in very limited circumstances. The Divisional Court found at para. 41:There may be cases in which it is appropriate to require reconsideration before an application for judicial review is brought; for example, where there are conflicting decisions by the Board on a matter of policy, and the Court determines that the Board should be given an opportunity to clarify the issue. Similarly, reconsideration may be an adequate alternative remedy where the Board made an error in a step in the administrative decision-making process. However, given the limited scope for review, there is no basis for finding that parties before the Board should generally request a review by the Board before seeking judicial review. [citations omitted.] [66] As put by the ETBA in its reply factum, its “application alleges that the Board failed to give proper effect to the province-wide bargaining regime under the Act. This is not a ‘policy issue’ as defined in the case law.” I agree. Further, there are no conflicting decisions involving an issue that the Board ought to have a chance to reconcile. Finally, ETBA is not alleging that the Board made a procedural error in its process.
[67] In The Society of United Professionals v. New Horizon System Solutions, 2020 ONSC 3153 at para. 22, the Divisional Court found that the Board is likely to reject a request for reconsideration that it regards “as an attempt to reargue the case.” In its reply factum, the ETBA acknowledges that it “is essentially making the same representations to this Court that it made before the Board but is contending that the Board’s conclusions about those representations were unreasonable.”
[68] I find that in this case reconsideration would not be an adequate alternative remedy and, therefore, the application should not be dismissed as premature. . 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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