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Administrative Law - Refusal to Process (aka 'Gate-keeping'). Teper v. IPC
In Teper v. IPC (Div Court, 2024) the Divisional Court dismissed a self-presenting JR on R2.1 ['frivolous and vexatious'] grounds, here on 'prematurity' in a 'gate-keeping' context. The simple facts were:[2] Mr. Teper seeks to judicially review a letter of the Information and Privacy Commissioner of Ontario (IPC) dated January 3, 2024. In the letter, the IPC advised Mr. Teper that an appeal he had filed with the IPC (under file number MA24-00002) would be placed on hold due to an administrative practice that an individual may only have two appeals actively proceeding at any one time. The court reasoned as follows:[9] Rule 2.1.01 allows the court to stay or dismiss a proceeding where it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. The application of r. 2.1 is “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, [2015] O.J. No. 5692, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598, [2023] O.J. No. 3997, at para. 6.
[10] The rule “must be interpreted robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Scaduto, at para. 8; Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8.
[11] In this case, Mr. Teper’s application is patently premature. The letter issued by the IPC is an administrative direction to control the processing of the proposed appeal. It is not a final decision. This court has repeatedly emphasized the longstanding principle that it will not intervene in administrative proceedings unless there are exceptional circumstances. Fragmentation causes delay and disruptions in administrative proceedings. It is preferable to allow administrative proceedings to run their full course and then consider legal issues arising from the proceeding at their conclusion: Isaac v. Law Society of Ontario, 2021 ONSC 10 (CanLII), 2021 ONSC, at para. 10.
[12] I do not agree with Mr. Teper’s submission that the letter was not interlocutory because the Notice of Appeal was not issued. The letter formed part of the IPC’s administrative management of the appeal. It was directed at a particular appeal, regardless of whether the Notice of Appeal was issued. To the extent it represents a more general administrative practice, such a practice would not be the exercise of a statutory power subject to judicial review.
[13] I do not accept that there are exceptional circumstances that would justify interfering in the IPC’s process in this case. The reason Mr. Teper is facing the delay in his appeal is because he has filed multiple appeals. The IPC, like all administrative tribunals, has limited resources. The IPC has told Mr. Teper he can choose which of his appeals to activate next. If there are issues he considers more time-sensitive in this appeal, it remains open to him to prioritize it. If the delay in processing this appeal becomes undue in a manner that causes prejudice, it will remain open to Mr. Teper to raise that allegation when the appeal is heard. Doing so would allow the IPC to assess the allegation of procedural unfairness in the context of the case including the degree of any prejudice to Mr. Teper. In any event, raising an allegation of procedural unfairness does not on its own constitute an exceptional circumstance that would justify fragmenting an administrative proceeding. The circumstances here do not mandate early intervention by this court.
[14] In dismissing this application under r. 2.1.01, Mr. Teper is not foreclosed from recourse to the court. If by the conclusion of the IPC appeal he believes the process was procedurally unfair, it will remain open to him to seek judicial review. . Teper v. IPC
In Teper v. IPC (Div Court, 2024) the Divisional Court noted a novel form of gate-keeping (refusal to process):[2] Mr. Teper seeks to judicially review a letter of the Information and Privacy Commissioner of Ontario (IPC) dated January 3, 2024. In the letter, the IPC advised Mr. Teper that an appeal he had filed with the IPC (under file number MA24-00002) would be placed on hold due to an administrative practice that an individual may only have two appeals actively proceeding at any one time. . Ahmed v CICB
A blatant example of gate-keeping abuse is found in the case of Ahmed v Ontario (CICB) (Div Ct, 2008). In this case the court allowed a judicial review application seeking mandamus (a mandatory order against government) against the CICB after it refused to issue an applicant the forms necessary to initiate an application. As the basis for its refusal, the CICB stated that: "(i)n the absence of charges, it is assumed that the [alleged assailant police] officers were acting in accordance with the commission of their duties." The court held that this position clearly contravened s.16(1) of the CVCA, which specifically provided that prosecution and/or conviction of a criminal offence was not a prerequisite to an application being granted, and further that the SPPA s.25.1-made rules, which in some cases allowed the refusal of application forms, did not extend to pre-judging the evidence.
That we have administrative tribunals in Ontario being administered by people so oblivious to the rudiments of a legal regime that they would act as the CICB did in Ahmed, should be of profound concern to us all. This degree of arrogance is of 'magna carta' magnitude.
. Gardener v. Abell Pest Control Inc.
In Gardener v. Abell Pest Control Inc. (Div Court, 2023) the Divisional Court considered (and allowed) a JR of an HRTO decision dismissing an application as late. From my experience and study these underlying procedural facts are an all-to common and unfair reaction from the Ontario human rights system to applicants:[2] There is no dispute that Ms. Gardener attended at the Tribunal Office to submit her application at approximately 4 PM on August 29, 2019, the last day for filing her complaint under s. 34 of the Human Rights Code. She had with her an electronic copy of the application form on a USB device. With the assistance of a Tribunal staff member she was able to print a copy of her application but, due to computer issues, it took time to print, until 5:20 PM. However, the staff member then refused to accept or date-stamp the printed form as it was after 5 PM.
[3] After speaking to the Tribunal by telephone in attempts to resolve the issue, on September 5, 2019 the Tribunal accepted Ms. Gardener’s application after she attended the Tribunal Office on that date. Ms. Gardener stated that she was unable to attend earlier due to a family emergency.
[4] In our view, the Tribunal’s decision that the filing was out of time is unreasonable. The Tribunal did not put any weight on Ms. Gardener’s actions attempting to file the application on August 29, 2019. Instead, the Tribunal considered whether Ms. Gardener had good faith reasons for delaying until the last day and examined her explanation for the seven days that followed until September 5, 2019, which led it to conclude that the time for filing should not be extended. These issues would have been irrelevant if the application had been accepted for filing by the Tribunal staff, or the Tribunal had simply exercised its discretion to extend the time given the clear intention, and efforts, to file the application on time, but the Tribunal gave those facts no consideration beyond stating them.
[5] In our view, this application was filed on time, and in the alternative the Tribunal could, and should, have simply exercised its discretion under its own Rules of Procedure, consistent with other Tribunal decisions, to extend the time past 5 PM to permit the application to be filed within the statutory limitation period: see, e.g. Brown v. Bellissimo Pizzaria and Restorante, 2014 HRTO 1403, at paras. 13-14; Jones v. Book, 2018 HRTO 1560, at paras. 28-31. Instead, the Tribunal ignored Ms. Gardener’s efforts on August 29, 2019 and unreasonably found that it was out of time, and despite Ms. Gardener’s evidence of her personal circumstances over the preceding year, and of what she had done between August 29 and September 5, 2019, that Ms. Gardener had not made a “good faith” effort to file the application in time.
[6] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 6, the Supreme Court of Canada stated at para. 135:Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law. [7] Those words are apt here. The Tribunal’s reasons, including its reconsideration, did not reflect the heightened responsibility on it to appropriately address the circumstances – a printing misadventure that caused the application to be ready to be filed at 20 minutes after 5 PM - or the consequence of its decision which denied Ms. Gardener the ability to pursue her human rights complaint.
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