Simon's Megalomaniacal Legal Resources

Judicial Review - Prematurity Exceptions (3)

. Doxy.Me Inc. v. Ontario Health et al. [no resultant fragmentation of proceedings]

In Doxy.Me Inc. v. Ontario Health et al. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "Ontario Health’s refusal to verify that its video service complies with required standards. The result of Ontario Health’s decisions is that Doxy’s physician clients are not entitled to receive payment from the Ontario Health Insurance Plan (“OHIP”) for any services rendered through its videoconferencing platform."

Here the court considers a JR prematurity exception issue:

ISSUE #1: IS THIS APPLICATION FOR JUDICIAL REVIEW OF ONTARIO HEALTH’S “DECISION” PREMATURE?

[34] Ontario Health submits that this application for judicial review is premature as Doxy has received notices of remediation but not a final decision. It submits that Doxy’s entitlement to Verified Solution Status is ongoing as Ontario Health has delivered notices of remediation but not a final decision.

[35] Doxy submits that throughout its lengthy review process Ontario Health has consistently refused to grant Verified Solution Status to its videoconference platform largely because they have differing views on what constitutes PHI (personal health information) and the view that Doxy’s platform fails to comply with the Data Residency Requirement.

[36] In SkipTheDishes Restaurant Services Inc. v. Canadian Union of Postal Workers, 2025 ONSC 1399, N. Backhouse J. summarized the principle of prematurity as applied in this court: Absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted She went on to explain the purpose of the principle as follows:

[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. [Emphasis added]

[37] Ontario Health’s letter dated December 8, 2023, states that there are four unresolved issues that remain open for resolution. Doxy has agreed to reconfigure its platform to address the concerns outlined in VVV section 2.1.4. subject to the other three issues, which address the Data Residency Requirement, being resolved to its satisfaction. After having exchanged views over two years, Doxy and Ontario Health are at impasse regarding the legal validity of the Data Residency Requirement. Neither party has capitulated on the issue of the Data Residency Requirement and there is no administrative process that will resolve this issue for the parties.

[38] Unlike SkipTheDishes and the cases referenced therein, there is no statutory process of adjudication and appeal in this case that has to be followed to completion. As a result, this application for judicial review does not result in a fragmentation of administrative proceedings.

[39] I find that this application for judicial review is not premature.

. Holland L.P. v. Labourers International Union of North America et al.

In Holland L.P. v. Labourers International Union of North America et al. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a labour JR, here regarding a dispute between Ontario and federal labour jurisdiction.

Here the court (would have) applied a JR prematurity discretionary exception:

Prematurity

[19] The Respondent argued that this matter was premature, as one of the certification applications was still outstanding, and that this Court generally does not consider the merits of an interlocutory decision until final decisions in all of the related proceedings are rendered: Malekzadeh v. Ontario Labour Relations Board, 2024 ONSC 2559 (Div. Ct.). The Applicant argued that since the certification decisions on five applications are final, this matter was ripe for judicial review and that the outcome of the industrial certification application would not change the underlying factual nexus of this case.

[20] The panel directed that the issue of prematurity should be argued together with the merits of the case. Having heard the arguments, I would reject the Respondent’s position that this application is premature. The certification decisions are the final disposition of five of the six proceedings before the Board. In Malekzadeh, even though the Board had dismissed three out of four applications, the Board was still required to consider the merits of a duty of fair representation case, which would have represented a significant issue between the parties. In Malekzadeh, it would have been necessary for this Court to have waited for the Board’s reasons in the final proceeding before considering the judicial review of all of the decisions. That is not the case here, as the underlying factual nexus of the case is set.

[21] However, even if this matter was premature, I would exercise my discretion to hear the Application. No issues have been raised in respect of the merits of any of those five certification decisions. Indeed, in argument, counsel for the Applicant confirmed that waiting for the sixth decision would add nothing of substance to the record and counsel for the Respondent did not seriously dispute this assertion. The only issues before the Court are the issues raised in the Jurisdiction Decision, and they are ripe for consideration now.

. Dosu v. Human Rights Tribunal of Ontario [resultant 'inefficiency' as a factor against prematurity]

In Dosu v. Human Rights Tribunal of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court allowed a JR, this brought against "a portion of an interim decision of the Human Rights Tribunal of Ontario" which found that the applicant's "complaints ... were out of time".

Here the court applies a resultant 'inefficiency' again the respondent's prematurity argument:

[36] York raises three preliminary issues. York asks that the application be dismissed because it is premature and because the grievance arbitration is an adequate alternative remedy. ....

[37] With respect to the prematurity issue, I am satisfied that not entertaining Ms. Dosu’s application at this time is likely to create unacceptable levels of fragmentation and inefficiency: Whearty v. Waypoint Centre for Mental Health Care, 2024 ONSC 5638 at para. 9. Accordingly, in the circumstances of this case, I would not give effect to the respondents’ argument that the court should decline to determine this case on the basis of prematurity.

[38] Further, it is not clear on the record before the court that the issues in the grievance arbitration are congruent with those before the HRTO. I therefore cannot conclude that Ms. Dosu has an adequate alternative remedy.

. Sunova v. CLAAS of America

In Sunova v. CLAAS of America (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an interlocutory JR, this brought against an Agricultural and Rural Affairs Tribunal decision which "dismissed the applicant’s recusal motion, which was based on an alleged apprehension of bias on the part of the presiding Member of the Tribunal".

The court considers JR prematurity exceptions, here where the applicant sought review of an interlocutory administrative decision:

Prematurity

[11] The respondent argues that this application for judicial review is premature and should be dismissed given that the underlying administrative proceeding has not yet been concluded.

[12] Absent “exceptional circumstances” an application for judicial review will not be heard until the completion of the underlying proceeding: Malekzadeh v. Ontario Labour Relations Board, 2024 ONSC 2559 (Div. Ct.), at para 5. The decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 does not alter this principle.

[13] In Yatar at para. 54, the Supreme Court of Canada reaffirmed the principle that a reviewing court must still determine whether judicial review is appropriate and retains the discretion to refuse a remedy and may decline to consider the merits of the application. Yatar did not remove or abolish the prematurity principle and the exceptional circumstances standard in making such determination.

[14] As the court stated in Kadri v. Windsor Regional Hospital, 2019 ONSC 5427 (Div. Crt), at paras 49-51, citing C.B. Powell Ltd. v. Canada, 2010 FCA 61 at para. 33:

Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted.”

[15] See also: National Car Rental Inc. v. Municipal Property Assessment Corp., 2023 ONSC 2989 at paras. 31-32.

[16] The applicant submitted that the Tribunal made a significant error in ordering disclosure arising from a draft report used in the process of settlement discussions and that not granting the application will open the floodgates for motions by other litigants to request disclosure arising from settlement discussions. This is not the issue before this Court, nor was it raised in the written submissions on the disclosure motion before the Tribunal. The applicant has not sought judicial review of the disclosure decisions. The applicant has brought an application for judicial review of the recusal motion, for a finding that there is bias or a reasonable apprehension of bias. The applicant is asking this Court to determine an issue not properly before the panel.

[17] In considering the issue of the recusal motion, based on the totality of the record in the exercise of our discretion, we are not satisfied that the applicant has demonstrated “exceptional circumstances” which would justify prematurely determining this application for judicial review on bias from an interlocutory administrative decision prior to the completion of the underlying proceeding on the merits. To do so will lead to a fragmented administrative process and possible multiplicity of court proceedings.

[18] In reaching this decision, we wish to make it clear that alleging actual bias or reasonable apprehension of bias relating to a tribunal’s interlocutory decision is not an automatic way to avoid dismissal, as premature, of an application for judicial review of that decision. Whether there is actual bias or reasonable apprehension of bias is more appropriately determined based on the conduct of the administrative proceeding as a whole. Judicial review of an interlocutory decision on the grounds of bias should proceed only in the clearest of cases.

[19] This application for judicial review of the Tribunal’s recusal motion determination is dismissed as premature. This is without prejudice to renew the application once the underlying administrative proceeding currently before the Tribunal is completed.

. Sohail Aslam v. Ontario College of Pharmacists [declining to hold as premature on consent]

In Sohail Aslam v. Ontario College of Pharmacists (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against a denied abuse of process (delay) ruling in a remitted OCP Discipline Committee proceeding.

Here, in the context of a JR of an interlocutory order, the court - with consent of the respondent - declines to dismiss the JR as premature:

Prematurity

[7] With respect to prematurity, the College is not taking the position that, in the particular circumstances of this case, this Court should decline to hear this application. However, it does so only because of the expert evidence as to the increased risk that a second discipline hearing will present to Mr. Aslam’s health. In making this concession, the College is not conceding that the delay in the proceedings caused or contributed to Mr. Aslam’s health struggles.

[8] In view of the College’s appropriate concession, we are not dismissing the application as premature.