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Appeals - Leave to Appeal - Appealing Tribunal Interlocutory Orders is Premature

There is a well-established general doctrine that appealing tribunal interlocutory orders is premature (ie. you should wait until the entire tribunal case is finally determined before appealing). That being the case, seeking leave to appeal may be doomed from the start.

. Niagara-On-The-Lake v. Tweed Farms Inc.

In Niagara-On-The-Lake v. Tweed Farms Inc. (Div Ct, 2020) the Divisional Court considered a leave to appeal application of an interlocutory order under the Local Planning Appeal Tribunal Act. As it was interlocutory a preliminary issue was whether the appeal, if leave were granted, was premature. The court held that it was premature, as there was a general policy against fragmenting administrative tribunal proceedings:
[14] It is well established that, as a general rule, the Divisional Court will not fragment proceedings before administrative tribunals by hearing appeals from interlocutory decisions in the absence of exceptional or extraordinary circumstances: see Richmond Hill (Town) v. Yonge Bayview Holdings Inc., 2013 ONSC 2252, 11 M.P.L.R. (5th) 74 (Div. Ct.) at para. 16 and Ontario College of Art v. Ontario (Human Rights Commission) (1992), 1993 CanLII 3430 (ON SCDC), 99 D.L.R. (4th) 738 (Div. Ct.) at pp. 740-741.

[15] Moreover, Harvison Young J. (as she then was) confirmed at paras. 17 and 18 of Richmond Hill that:
(a) there is a need to avoid a piecemeal approach to judicial review of administrative action, as fragmentation causes both delay and interruptions in administrative proceedings;

(b) it is preferable to allow matters to run their full course before the tribunal and then, if necessary, consider all legal issues arising from the proceedings at their conclusion;

(c) matters raised at a preliminary stage may no longer be of interest after the conclusion of an administrative tribunal’s proceeding; and

(d) it is generally advisable to consider the issues within the context of a full evidentiary record.

[33] In my view to grant leave to appeal from a procedural order setting the issues for the appeals in these circumstances would represent an unwarranted encroachment on the principle discouraging fragmentation of administrative tribunal proceedings and would only lead to unjustified delay. The fact that a full evidentiary record may not be necessary to address the question of law that is the subject of the proposed appeal is not determinative of the prematurity question. The delay which would be occasioned by the proposed appeal is also an important factor. The risk of delay is particularly acute in respect of appeals relating to a by-law extending an interim control by-law, as in this case, as the extended term of the by-law may very well be expired before an appeal of the procedural order setting the issues will have been finally disposed of, rendering the Tribunal Appeals moot. As noted by O’Driscoll J. in the case of Eastpine Kennedy-Steeles Ltd. v. Markham (Town) (2000), 10 M.P.L.R. (3d) 269 (Div. Ct.) at para. 3, such delay may be exacerbated by possible appeals, with leave, to the Court of Appeal and to the Supreme Court of Canada.


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