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Judicial Review - Urgent Applications [JRPA 6(2)]. Taylor v. Pivotal Integrated HR Solutions
In Taylor v. Pivotal Integrated HR Solutions (Div Ct, 2020) the Divisional Court considers the nature of a JRPA s.6(2) 'urgency' application:[5] Third, Mr Taylor has misconceived the import of s.6(2) of the JRPA. It permits a single judge of the Superior Court to hear a Divisional Court matter ordinarily heard by a panel of three judges of the Divisional Court where a panel hearing may not be available for the case on a timely basis. It is invoked most often outside Toronto where Divisional Court panel hearings are scheduled only two or three weeks each year and cases can arise that cannot await the next regular sittings of the Divisional Court. Inside Toronto, where Divisional Court panels ordinarily sit every regular week of the year (the exceptions being the summer months and two weeks at Christmas), there is seldom a situation where the panel cannot hear an urgent matter whenever the case is ready to be heard. In those rare cases where a panel cannot be assembled to hear a truly urgent matter within the time frame in which the case needs to be heard, the court will arrange for the matter to be heard by a single judge, either under the authority of s.6(2) of the JRPA or by direction of the Associate Chief Justice, usually on the advice of an administrative judge of the Divisional Court. It is on this basis that I “directed staff to advise Mr Taylor that this provision is administered by the Divisional Court office in Toronto.”
[6] None of these provisions have anything to do with expediting a case faster than has been directed by a case management judge. It is not open to Mr Taylor to circumvent a scheduling decision from this court by abandoning his application and starting a new one in Superior Court. To do that would be an abuse of process. It is theoretically open to Mr Taylor to move before a Superior Court judge in this proceeding for an order that the application be heard by a single Superior Court judge because of urgency. That motion should be brought to me or as I may direct, since I am case-managing this matter: if Mr Taylor brought that motion returnable before another judge, and if he properly disclosed prior endorsements in this case, he would find himself directed back to this court for his motion after having wasted time and resources – his own, those of adverse parties, and those of the court. . Sobczyk v. Ontario
In Sobczyk v. Ontario (Div Ct, 2021) the Divisional Court considered the limited role of JRPA s.6(2) 'urgent' single judge hearings in the Divisional Court in this new age of COVID remote ZOOM hearings:[6] It may be recalled that s.6(2) of the JRPA exists as a result of the unique nature and mandate of the Divisional Court as an appellate and review court that does its work both centrally (in Toronto) and locally (in each Region). Prior to COVID-19, panel hearings were available outside Toronto only at periodic regional sittings. As reflected in the endorsement of Grace J., quoted above, the next two sittings in London are in November 2021 and April 2022. Where there are sittings only 2-4 panel weeks per year in a Region, it can be anticipated that a matter may arise that requires attention more urgently than the Regional sittings schedule can accommodate. This is reflected in the differing practice in Toronto and outside Toronto for requests for urgent hearings before a single judge pursuant to s.6(2) of the JRPA: historically, recourse to this provision has been required from time-to-time outside Toronto, but has seldom been required inside Toronto. In addition, s.21(2)(c) of the Courts of Justice Act accords discretion the court’s Executive (usually and currently vested in the Associate Chief Justice) to designate a particular matter to be heard by a single judge of the Divisional Court rather than a panel. It is an extraordinary decision to conclude that a matter ordinarily requiring decision from a panel of three judges of the Divisional Court will be heard by a single judge, and it is preferred that this extraordinary exercise of discretion be exercised consistently with an overall appreciation of the court’s ability to accommodate an urgent panel hearing.
[7] The court now has the use of CaseLines and ZOOM to assist in accommodating an urgent panel hearing. It should be immediately obvious how this technology attenuates the need for recourse to s.6(2) of the JRPA outside Toronto. Regional Superior Court judges overseeing Divisional Court operations in their Regions, and staff and administrative judges of the Divisional Court in Toronto, are available to facilitate urgent panel hearings by ZOOM. It should be expected that this will be a continuing feature of Divisional Court practice post-COVID. Thus, in most cases, it should not be possible to meet the second branch of the test pursuant to s.6(2) of the JRPA.
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