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JR - Discretionary (3). 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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