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Judicial Review - Adequate Alternative Remedy (3)

. National Car Rental Inc. et al. v Municipal Property Assessment Corp. et al.

In National Car Rental Inc. et al. v Municipal Property Assessment Corp. et al. (Div Court, 2023) the Divisional Court quashed a JR of an interlocutory tribunal order, and expounds usefully on the issue of adequate alternative remedy and the relevant statutory regime:
2. There is an Adequate Alternative Remedy in the form of a Statutory Appeal from the Final Decision of the ARB

[44] The Applicants do not substantially oppose the availability of an alternative remedy in the form of an appeal of the ARB’s final order; only that it might take too long, and that the issues to be determined are of such importance that they ought to be decided by way of judicial review.

[45] In Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, at paras. 37, 42 and 47, the Court of Appeal confirmed that the Divisional Court should rarely hear applications for judicial review where an adequate alternative remedy exists. As stated at para. 42, there must be “something unusual about the case to warrant resort to the discretionary remedy of judicial review, given the legislative scheme. That legislative scheme includes the right to reconsideration of the Tribunal’s preliminary decision and the statutory right of appeal from decisions of the Tribunal on questions of law.”

[46] The focus of judicial review is whether the administrative process proceeded in a manner that permitted the issues to be raised and an effective remedy to be granted. On this ground, I find no basis for judicial review because the matter can now proceed to a full hearing before the ARB. Should the ARB find there to be a legal basis for events subsequent to January 1, 2016 to be factored into an analysis of the January 1, 2016 valuation date, further steps can be taken.

[47] If this court grants leave to appeal from the ARB’s final decision, any questions of law will then be decided on the correctness standard, in accordance with Canada v. Vavilov, 2019 SCC 65 on the basis of a complete record. By contrast, if this premature application for judicial review were to proceed, the ARB’s decision would be reviewed on the standard of reasonableness, on an incomplete record.

[48] Matters should proceed efficiently to their conclusion, so that the court can hear all legal issues arising out of a proceeding together on the correctness standard. For example, in Toronto Transit Commission v. Amalgamated Transit Union Loc. 113, 2020 ONSC 2642, at paras. 17-18 (Div. Ct.), the Court held that even when hundreds of grievances were put on hold pending 11 test cases, premature judicial review was not justified:
In my view, all of the policy reasons against judicial review of interlocutory decisions apply with full force in the context of this case, as a test case. Running 11 test cases in lieu of litigating hundreds of underlying grievances makes obvious sense. The net effect is to delay adjudication of hundreds of underlying grievances, but potentially to reduce, significantly, the overall costs of conflict resolution. For this to work practically, of course, it is important that the test cases proceed with reasonable dispatch. “Reasonable dispatch” would be compromised by judicial review and subsequent potential appeals of interlocutory rulings.
I find that the Applicants will have an effective remedy by way of an appeal, with leave, from the ARB’s final decision.

3. The Applicant Should Not be Able to Circumvent the Legislative Scheme

[49] The discretion to entertain judicial review must incorporate respect for the legislature’s choice to not permit an appeal of an interlocutory order, and to require leave to appeal from a final decision of the ARB, only on a question of law, with leave.

[50] Judicial review in these circumstances would be inconsistent with, and in my view, risks offending legislative intent, as set out in Vavilov and in Strickland v. Canada (Attorney General), 2015 SCC 37, at para. 44 (citing D. J. Mullan, “The Discretionary Nature of Judicial Review”, in R. J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009 (2010), 420, at p. 447):
While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affected individuals against the imperatives of the process under review. In particular, the courts focus on the question of whether the application for relief is appropriately respectful of the statutory framework within which that application is taken, and the normal processes provided by that framework and the common law for challenging administrative action. Where the application is unnecessarily disruptive of normal processes . . . the courts will generally deny relief. [Emphasis added by the Court.]
[51] In Vavilov, at para. 52, the Supreme Court of Canada advised that where a statute prescribes a circumscribed right of appeal, judicial review is available only for decisions to which the appeal mechanism does not apply. Here, there is an appeal mechanism within a legislative scheme that permits meaningful review.
. Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks)

In Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks) (Div Court, 2022) the Divisional Court notes that applying the adequate alternative remedy doctrine to dismiss a JR is discretionary:
[55] Ontario submits that this Court should dismiss this application because there is an adequate alternative process available to MFN through the WMP amendment process. I do not need to determine this issue given my conclusion that the application should be dismissed based on Ontario’s primary argument, that the duty to consult was not triggered. However, dismissal on the basis of an existing alternative process is discretionary.
. Pryde v. Chief Animal Welfare Inspector

In Pryde v. Chief Animal Welfare Inspector (Div Court, 2022) the Divisional Court considered an 'alternative adequate remedy' (AAR) argument in a JR. Here the argument was that the applicant had not availed themselves of a rule-available reconsideration at the Animal Care Review Board. The court declined to apply to AAR argument against the applicant, in part because it would further a multiplicity of proceedings (SS: that's refreshing):
[13] The Respondent and the Board rely on Chief Animal Welfare Inspector v. Jackson, 2022 ONSC 872 (Div. Ct.), in which this Court declined to hear an application for judicial review because the Applicant failed to request reconsideration. In Jackson, the Board reduced accounts of $1,594.41, $450.00, and $2,025.00 rendered to an owner after three dogs were removed from his care, based on a finding that the owner did not have the means to pay those accounts.

[14] Our facts are different. This not a one-issue case. The record is voluminous. Sending part of the case back for reconsideration would not dispose of the matter but would potentially lead to further proceedings in parallel to the judicial review of the Compliance Decision. This would fragment the proceedings, add cost, and delay a final disposition of all issues necessary to decide the fate of the animals. Dismissing the review of the Enforcement Decision in this case would be an injustice and would perpetuate conflict. The applicants have been clear throughout that they wish to challenge the Enforcement Decision and we would not deprive them of the opportunity to do so because they pursued a sub-optimal approach to challenging the decision – thus, the choice for us, in this case, is whether to require the applicants to return before the Board with a request for reconsideration, or whether to hear the application for judicial review of the Enforcement Decision now, without the Applicants having had recourse to the reconsideration process before the Board.

[15] As the court noted in Jackson, this court has discretion to permit a party to seek judicial review where it has not sought reconsideration. The court considers the nature of the alleged grounds for review, the remedial capacity of the tribunal, the expertise of the tribunal and economical use of judicial resources and any other matter bearing on whether this court should exercise its jurisdiction: see also Strickland v. Canada (Attorney General), 2015 SCC 37 (CanLII), [2015] 2 S.C.R. 713 at para. 42. In the circumstances of this case, including the history of the litigation, the decision of this court to hear the judicial review of both applications together, the impact of further delay on living animals, the costs involved in the ongoing care of those animals, the ability of this court to determine the issues, and the comprehensive record filed, all weigh in favour of hearing both applications on the merits now. Further delay would not be in the interests of the parties, the animals involved, or the administration of justice.
. Sui v. Ontario

In Sui v. Ontario (Div Court, 2022) the Divisional Court addresses a simple instance of the application of the JR principle of 'adequate alternative remedy' (prematurity):
[5] This court will not exercise its discretion to grant judicial review if there is another more appropriate process available for an applicant (see, for example, Michalski v. McMaster University, 2022 ONSC 2625, para. 11). In this instance, clearly there is. The OCJ controls its own process and Mr Sui may seek assistance from that court to access the record in OCJ proceedings, including transcripts. If Mr Sui requires the transcripts for purposes of an appeal from the OCJ, he may also seek assistance from the appellate court, though an appellate court would expect Mr Sui to follow ordinary processes in the OCJ before raising the issue with the appellate court.
. BCE Inc. v. Québecor Média Inc.

In BCE Inc. v. Québecor Média Inc. (Fed CA, 2022) the Federal Court of Appeal considered a federal JR application from a CRTC 'undue preference' ruling, which was largely based on grounds that the matter had been already dealt with by arbitration. The JR application was made after the applicant has been denied leave to appeal the CRTC decision "on a question of law or jurisdiction" [Broadcasting Act, s.31(2)]. An issue was whether a JR could be brought in those circumstances:
A. Is Bell entitled to bring an application for judicial review after having been denied leave to appeal the Decision?

[53] This issue arises because of the combined effects of subsection 31(2) of the Broadcasting Act and sections 18.5 and 28 of the Federal Courts Act, R.S.C. 1985, c. F-7.

[54] Bell applied for leave to appeal the Decision pursuant to subsection 31(2) of the Broadcasting Act, which provides that an appeal from a Commission decision lies to this Court, with leave, upon a question of law or jurisdiction. In its motion for leave, Bell indicated that the Commission erred in law in failing to apply the doctrine of issue estoppel arising from the 2018 FOA in which, Bell argued, the same issue between the same parties was finally determined. Bell also argued that the Decision encourages a multiplicity of proceedings and was an abuse of process by litigation. Bell’s final argument was that the Commission failed to consider whether Québecor’s complaint of undue preference was a collateral attack on the 2018 FOA Decision. Bell’s motion for leave to appeal was dismissed. In keeping with this Court’s usual practice, no reasons were given for the dismissal.

[55] Bell candidly disclosed in its application for leave that it was also bringing an application for judicial review in the event that its motion for leave was dismissed or, if leave was granted, that its subsequent appeal was dismissed. Given that its application for leave to appeal was dismissed, Bell is now pursuing its application for judicial review.

[56] In bringing its application, Bell relies upon paragraph 28(1)(c) of the Federal Courts Act, which provides that this Court has jurisdiction to hear and determine applications for judicial review "“made in respect of … the Canadian Radio-television and Telecommunications Commission”". Bell acknowledges that its right to judicial review is limited by section 18.5 of the Federal Courts Act, reproduced below, which is made applicable to this Court by subsection 28(2) of the same Act:
"18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. (my emphasis)"

"18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi. (Je souligne)"
[57] Bell concedes that it cannot plead that the Commission’s decision is unreasonable on questions of law or jurisdiction. Those questions can be appealed to this Court and so, an application for judicial review on those grounds is precluded by section 18.5 of the Federal Courts Act. While the distinction between questions of law and questions of mixed fact and law is easily stated, it is not as easily applied: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 35.

[58] The issue of the scope of the right to judicial review in these circumstances was addressed by this Court in Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 [Best Buy], a case in which an application for judicial review was brought notwithstanding the right of appeal on questions of law under section 68 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). The Court was unanimous on the disposition of the appeal but split on the question of whether the section 18.5 limitation excluded applications for judicial review on questions of fact. The minority reasons argued that there was no such right because the exclusion of questions of fact from the scope of an appeal signaled that Parliament intended to protect findings of fact from appeal or review. The majority (on this issue) held that a complete bar of judicial review would not be consistent with the rule of law, citing the Supreme Court’s decisions in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Vavilov (see Best Buy at para. 112). As a result, the question of Bell’s ability to bring its application for judicial review, though on limited grounds, has been settled in its favour.
. Minnow Lake Restoration Group Inc. v. Sudbury (City) 30-

In Minnow Lake Restoration Group Inc. v. Sudbury (City) (Div Court, 2022) the Divisional Court considered a combined 'judicial review-municipal quashing' application attacking a municipal resolution endorsing a particular arena/event development. The court, plainly concerned that the numerous statutory and municipal steps that the proponents had to surmount (any of which may have attracted JR or appeals), and likely annoyed by the perceived questionable quality of the applicant's case, dismissed it.

A central issue was the combination of the JR (which normally precedes in Divisional Court) and the Superior Court [MA 273(1)] municipal quashing application (which proceeds in Superior Court), something similar to which was recently considered in the Yatar v TD Insurance (Ont CA, 2022) case by recommending that separate, simultaneous applications be brought (though in Yatar they were both in the Divisional Court, a JR and an appeal). There the JR doctrine of adequate alternative remedy was central:
The nature of the application (the concern)

[30] I begin this review by observing that the nature of the application being made is not clear. The originating document is titled: “Notice of Application for Judicial Review”. It relies on the Judicial Review Procedure Act[23] and the Rules of Civil Procedure. The factum filed on behalf of the Applicant refers to quashing the by-law but, in doing so relies on s. 273 of the Municipal Act, 2001[24]:
273 (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.
[31] The principal submission made in furtherance of quashing the by-law is that the procedure adopted by council was unfair. The allegation of unfairness permeates each of the errors alleged to have been made by the council in the process that led to the adoption of the impugned resolution. While it is difficult to perceive the possibility of a procedure being unfair but the result, nonetheless legal, and thus not susceptible to being quashed pursuant to s. 273 of the Municipal Act, procedural unfairness is a concept generally understood in the context of judicial review. It is possible, in the presence of an available statutory process, for a party to maintain a right to seek judicial review. The difficulty is that a judicial review is heard by the Divisional Court (a panel of three judges) whereas an application brought under s. 273 of the Municipal Act is heard by the Superior Court of Justice (a single judge). This matter proceeded as a judicial review. For the moment, I observe only that judicial review is a discretionary remedy and that this court can and often does exercise that discretion by deciding not to grant judicial review where an alternative remedy remains available. It is important to recognize, as the Court of Appeal has recently observed, that the discretion applies not just to the granting of the relief but also to its decision to undertake a review. I will return to this issue and the decision of the Court of Appeal later in these reasons.


[44] If considering whether the decision made on July 14, 2021 to move forward with the arena/event centre in the Kingsway Entertainment District was made in bad faith, that is, that council in passing the resolution acted unreasonably and arbitrarily, one has to look at the process as a whole and not just the last step, that is the updating of the material and the resulting review. As it is, it remains the case that the Superior Court found the process to be “a careful study of the potential effects of locating it [in the Kingsway Entertainment District], as part of a robust democratic process” and the Ontario Land Tribunal determined the proposed development represented good planning. Moreover, the proposal for the Update Report was the subject of discussion at the meeting of February 9, 2021. The Report and the accompanying memorandum were considered, by a vote of council, to be sufficient to allow the closure of discussion of the proposal. Nonetheless, the issue was subject to debate and the two motions brought forward at the meeting of June 29, 2021 that further work be undertaken. Both of those motions were defeated. Finally, the issue of allowing the project to move forward was voted on and passed by council in the resolution of July 14, 2021. It cannot be said that the decision to move on was arbitrary or that council acted arbitrarily in passing the resolution the Minnow Lake Restoration Group Inc. now seeks to quash. It is worth remembering that in Grosvenor v. East Luther Grand Valley (Township) the finding of bad faith arose from a circumstance that the declaration of the trailway as a highway was done without notice to anyone, with the three readings of the by-law occurring at one sitting at the end of a council meeting and then being passed.[33] There is nothing like that here.


The nature of the application (the explanation)

[51] I return to the concern as to the nature of this application: should it be dealt with as a judicial review and considered by this court or as an application to quash a by-law and the court’s discretion exercised to refuse the application on the basis that such a motion was an available, adequate alternative remedy and, as such, is properly heard by the Superior Court. In the time since this case was argued, but prior to the preparation of these reasons, the Court of Appeal released its decision in Yatar v. TD Insurance Meloche Monnex.[36] The Licence Appeal Tribunal had determined that an application that had been made pursuant to the Statutory Accident Benefits Schedule (commonly “SABS”)[37] was outside the two-year limitation set for its commencement. The appellant asked for a reconsideration of that decision. The decision was confirmed. The Divisional Court had considered both an appeal and an application for judicial review of the decision of the Licence Appeal Tribunal. Pursuant to s. 11(6) of the Licence Appeal Tribunal Act[38] appeals were to the Divisional Court and were limited to questions of law. The Divisional Court concluded that the decision of the Tribunal disclosed no such error and dismissed the appeal. This was not questioned. However, the Divisional Court went on to consider the application for judicial review. It determined that where there was an adequate alternative remedy (in that case, the statutory appeal that had been dismissed) particularly where that remedy limited access to the courts (i.e. only as to a question of law), it was only in “exceptional circumstances” that the court should exercise its discretion to consider a judicial review. There being no exceptional circumstances it dismissed the application. It was this determination that was taken up by the Court of Appeal.

[52] The Court of Appeal was concerned with the use of the phrase “only in exceptional circumstances” as the determinant of when a judicial review should proceed in the presence of an adequate alternative remedy. The Court recognized that in the circumstances the appellant still had the remedy of an application for judicial review available to her. In particular, the Court of Appeal referred to s. 2(1) of the Judicial Review Procedure Act which provides that “‘a court may, despite any right of appeal, by order grant any relief’ by way of judicial review”. The court noted that “the case law also makes it clear that legislatures cannot shield administrative decision making from curial scrutiny entirely”. In the result, the Court of Appeal “agreed with the Divisional Court’s approach, which essentially concluded that judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular circumstances of a given case. What constitutes such a rare case is for the Divisional Court to determine on a case-by-case basis”.[39] It will be immediately evident that the case does not directly apply to the situation in this case. There is no right of appeal that accompanies this application for judicial review. An application made pursuant to s. 273 of the Municipal Act is an “originating process” and pursuant to s. 272 the ability to quash a by-law limited. Nonetheless, the principle is the same. The discretion in this court to consider a judicial review in the face of an adequate, alternative remedy remains, albeit to be exercised in rare circumstances.

[53] In this case, the court has exercised its discretion to hear the judicial review. To explain why, I return to the first paragraph of these reasons. The planning process can be long and complicated; in some cases, to the point where its efficacy becomes open to question. The effort to locate the arena/event centre began in 2010. In time, it was absorbed into the identification of “large projects” to be incorporated into the City of Greater Sudbury’s overall planning and as part of the consideration and planning for the Kingsway Entertainment District. It took until 2017 for the council to resolve if, and where, the arena/event centre should go. This decision was not accepted. Rather it was the subject of both an application to quash on the basis that it was the result of a flawed process, by a biased council and a review of the planning by the Ontario Land Tribunal. It took until, respectively, September 4, 2020 and December 23, 2020 (or to put it differently, in excess of another three years) for these processes to be completed. The Superior Court sustained the actions of the Council and the Tribunal recognized the quality of the planning. Almost immediately, at the meetings of January 21, 2021 and February 9, 2021, the council moved to update the available information, review and, as it has turned out, confirm the decision to locate a new arena/event centre in the Kingsway Entertainment District. Not surprisingly, the councillors who remain concerned with this decision, have continued to bring the downtown option forward to be considered by their colleagues. These motions have all been defeated. Now, by this application, a group opposed to the decision seeks to start again with a review by the courts based upon allegations of a flawed process. It is of note to point out that, in his submissions, counsel for the Applicant, said that the issue being raised was only with what began on January 21, 2021 and February 9, 2021, as if what happened before was of no import. To have exercised the court’s discretion to refuse to hear this application and send the matter back for another application to quash the by-law would have resulted in more delay, perhaps, another three years. As it is, no objection was taken by the City of Greater Sudbury to this application proceeding. The court has found that there was no substance to the allegations being made. To allow this to go on would have accomplished nothing other than further delay. There is a point where delay makes the process not just too long, but meaningless, in that it requires more review. Circumstances can change. Whether, if the Court of Appeal decision in Yatar v. TD Insurance Meloche Monnex had been released before this matter was heard, the Court’s discretion would have been dealt with differently is a matter of speculation but I believe not.

[54] I end by pointing out again that the basis for the application was the allegation that the process was unfair. No other issue of illegality was raised. Accordingly, there would be no basis upon which an application to quash the by-law could now be pursued. For whatever reason, and to whatever result, this application for judicial review, as brought on before the Divisional Court, referred to and relied on s. 273 of the Municipal Act. As noted by the Court of Appeal in Yatar v. TD Insurance Meloche Monnex:
…if a party intends to utilize both their right of appeal and their right to seek judicial review, then those proceedings must be brought together. Put simply, a party cannot first exercise their right of appeal and then, if unsuccessful, bring a judicial review application. “Litigation is not to be conducted by instalment.”[40]
. Michalski v. McMaster University

In Michalski v. McMaster University (Div Ct, 2022) the Divisional Court held that they had discretion to deny a judicial review on the basis that there was an adequate alternative remedy:
[73] Although this Court has jurisdiction to review the impugned decisions, this is not the appropriate forum to rule on the Applicants’ concerns. One of the discretionary grounds for refusing to undertake judicial view is that there is an adequate alternative forum: Strickland, at para. 40. In this case, the alternative is the Human Rights Tribunal of Ontario (HRTO). Several factors support the conclusion that the HRTO is a more appropriate forum for the Applicants’ claims to be adjudicated. These factors include: the nature of the errors alleged by the Applicants (i.e., a misinterpretation of the meaning of “creed” in the Code); the relative expertise of the HRTO in matters of religious freedom and discrimination based on creed; the capacity of the HRTO to render a remedy comparable to that which the Applicants are seeking (having abandoned their requests for declaratory relief); and the economical use of judicial resources. Perhaps the most significant factor is that the HRTO would be able to receive and consider the voluminous expert evidence that had to be excised from the Application Record. The suitability and appropriateness of judicial review in this forum is undermined by the comparatively limited evidentiary record before this Court.


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