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JR - Discretionary (3). 2417563 Ontario Inc. v. The Corporation of the City of Brampton
In 2417563 Ontario Inc. v. The Corporation of the City of Brampton (Div Ct, 2026) the Divisional Court dismissed a JR, this seeking "to quash the by-law and set aside the sale to 258" - these both relating to the sale of a narrow strip of land by the municipality.
Here the court considers the court's JR discretion:The discretion not to hear the judicial review
[27] The respondents urge us not to consider the merits of the application for judicial review. The discretion to do so was described by Rowe J. in Yatar (S.C.C.) at para. 54 (citations omitted):When an applicant brings an application for judicial review, a judge must consider the application: that is, at a minimum, the judge must determine whether judicial review is appropriate. If, in considering the application, the judge determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application. The judge also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable. [28] It is argued that we should decline to consider the merits of this application both because the decision at issue in this case (a decision to sell land to a private third party) is a decision that is insufficiently public in nature to be subjected to judicial review, and because the application is moot.
[29] In Strickland v. Canada, 2015 SCC 37, the Supreme Court emphasized that judicial review is discretionary in nature and, as in Yatar, that part of the discretion afforded to the courts is the discretion not to consider an application on its merits where there is an available alternative remedy. That determination is not made based only on an assessment of the adequacy of the alternative remedy, but on an assessment of all the relevant circumstances. Cromwell J. put the point as follows (at paras. 42 – 43, 45; citations omitted; emphasis added):The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as to justify a discretionary refusal to hear a judicial review application. These considerations include the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost.
The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case ... Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis... As Dickson C.J. put it on behalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant ...” (Canada (Auditor General), [1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49] at p. 96).
[…]
The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules. All relevant factors, considered in the context of the particular case, should be taken into account. [30] In the context of this case, I agree with the respondents that the relevant factors weigh in favour of declining to consider this judicial review on its merits. Even if the alternative remedy made available to the applicants in s. 273 of the Municipal Act is narrower in scope (limited as it is to cases of “illegality”) than an application for judicial review, which I do not need to decide, that fact is outweighed by other considerations. These other factors include the nature of the transaction and the property in question, the applicants’ own delay in this case, the apparent mootness of the application, and the consequences for 258 should the applicants be successful.
....
[45] Assuming that the transaction can be undone, and assuming that the applicants were able to establish some failure by the City in the process of selling the strip, given the time that has passed and the disproportionate consequences of such a result on 258, a private and innocent party in this dispute, I would not be inclined to order any remedy in this case. Doing so is discretionary and relevant factors that will drive the decision about whether to order a remedy include delay, mootness and the consequences of the decision on the parties and others: London v. RSJ Holdings Inc., 2007 SCC 29, at para. 39; Mining Watch Canada v. Canada, 2010 SCC 2, at para. 52. . Corporation of the Township of Emo v. Borderland Pride [no reconsideration]
In Corporation of the Township of Emo v. Borderland Pride (Ont Div Ct, 2026) the Ontario Divisional Court considers an HRTO JR, which itself is challenged initially as premature on the basis that no HRTO reconsideration was sought nor conducted:[8] The applicants commenced this application for judicial review without first seeking reconsideration at the HRTO. A number of issues were raised in the Court’s pre-hearing case management. However, the lack of a reconsideration was not raised at that point. It appears that it was not raised until the exchange of factums for this hearing.
[9] We accept the applicants’ submissions that, in good faith, they did not expect that the issue would be raised at that late point in the proceedings. Nonetheless, it is appropriate that this Court address the issue as a preliminary matter.
[10] While there is a right to seek judicial review, the court must determine whether judicial review is appropriate: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, at paras. 51 and 54. If, in considering the application, the court determines that one of the discretionary bases for refusing a remedy is present, the court may decline to consider the merits of the judicial review application.
[11] Absent exceptional circumstances, reviewing courts will generally decline to engage in a judicial review if the applicant has not exhausted all available, effective remedies within the administrative regime: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-69.
[12] Where internal review processes have not been exhausted, alternative remedies may exist: Yatar, at para. 63. Several factors inform the question of whether an alternative remedy is adequate: Yatar, at para. 64, citing Strickland v. Canada (Attorney General), 2015 SCC 37, at para. 43. We have therefore considered all relevant factors.
[13] In short, the applicants submit that seeking a reconsideration was not mandatory and was pointless. They ask us to assume that a reconsideration would not have been of any assistance on the issues now raised in this application for judicial review. We are not persuaded that it is appropriate to make that assumption.
[14] Rule 26.5 of the HTRO Rules of Procedure provides that, to grant a request for reconsideration, the party must show that at least one of the following applies:a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions. [15] Without limiting the applicants’ grounds, at least these subrules may be relevant here:(i) Rule 26.5 b and c, with respect to the order against the CAO despite the lack of notice that she might be subjected to an order as if she was a party; and,
(ii) Rule 26.5 c and d, on the issue of equating discrimination with bad faith and doing so without a proper analysis having regard for freedom of expression protected under s. 2(b) of the Canadian Charter of Rights and Freedoms. [16] The applicants have pointed to some cases, which predate Yatar and are fact specific. The applicants raised other issues in support of their request that this Court proceed despite the lack of a reconsideration, all of which we have considered.
[17] Beginning with delay, we agree that there was a lengthy delay at the HRTO even considering the overlap with the Covid-19 Pandemic. It would also have been highly preferrable for the issue to be raised early in the case management process in this Court. We have taken delay into account.
[18] Another case-specific submission relates to a garnishment order obtained immediately after the HRTO Decision, seeking to collect the monetary compensation. The applicants obtained an interim stay in this Court to address the garnishment, but they could have done so in the Superior Court.
[19] The applicants then submit that the HRTO does not have any particular expertise in municipal law. However, the issues addressed at the HRTO arise in many different legal contexts. The HRTO is the first step in considering those issues when they arise within a complaint under the Human Rights Code. Here, the issue is immunity under the Municipal Act and the relationship between discrimination under the Code and good faith under the Act. We are not persuaded that the HRTO has no relevant expertise in this case.
[20] The applicants also submit that they wish to proceed with the court hearing, and the other parties either agree or do not object to proceeding without a reconsideration. (The HRTO properly takes no position.) However, it is not for the parties to displace the principles that are set out above. Although we recognize that this case has its own history, the fact of consent, or the lack of an objection, does not remove the general, principled expectation that internal tribunal processes be exhausted before seeking judicial review.
[21] Lastly, the applicants submit that the HRTO (and potentially other tribunals) will be assisted by a binding decision of this Court on the important issue of immunity. This general submission could be made in many challenges to tribunal decisions.
[22] We have considered all of the submissions raised before us in the exercise of our discretion. Although it was open for us to dismiss this application as premature, we have decided to exercise our discretion to impose a stay with terms that would permit an attempted reconsideration while minimizing costs and delay. This outcome reflects the particular history of this case and all the other factors relevant to whether reconsideration is an adequate and effective alternative recourse.
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