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Judicial Review - Practice

. Malekazadeh v. Ontario Labour Relations Board

In Malekazadeh v. Ontario Labour Relations Board (Div Court, 2024) the Divisional Court adjourned a labour JR on the basis of prematurity, here where 3 of 4 applications were final but one was still pending a reconsideration:
[2] The City of Toronto and the Canadian Union of Public Employees, Local 79 (the Union) submit that this application should be dismissed as premature. After hearing submissions, we adjourned the application due to prematurity with reasons to follow. These are those reasons.

[3] The applicant commenced four applications at the OLRB, alleging breach of the duty of fair representation under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A,, reprisals resulting a breach of the Occupational Health and Safety Act, , R.S.O. 1990, c. O.1, unfair labour practices, and breaches of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A. The applications all arise from the same employment history.

[4] The applications made to the OLRB were dismissed for failure to show a prima facie case. On three of the four applications, the applicant’s requests for reconsideration were unsuccessful. On the fourth application, regarding the duty of fair representation, the OLRB granted the request for reconsideration. That matter is ongoing at the OLRB.

[5] It is settled law that applications for judicial review of the decisions of administrative tribunals should not be brought until the completion of the tribunal’s proceedings. They are premature. Unless there are exceptional circumstances, the administrative proceedings should be completed first. In this case, one application is ongoing and there may then be a reconsideration arising from that decision.

[6] The applicant submits that there are exceptional circumstances. Among other things, she emphasizes that only a small part of her OLRB proceedings remain outstanding, she has already prepared substantial court materials, and she has waited a long time for her court hearing. She also submits that she continues to prepare materials.

[7] We recognize that three of the four OLRB applications have been finally disposed of. However, one remains and all four arise from a common factual basis. In the circumstances of this case, to proceed now would create the very fragmentation, inefficiency and risk of inconsistent findings that inform the prematurity principle. We therefore conclude that the application is premature, and we do not exercise our discretion to hear it. We have addressed some of the applicant’s concerns through our disposition of the application.

[8] The application for judicial review is adjourned to a date to be set by the Registrar after the final decision on the applicant’s outstanding application before the OLRB. In particular, within 60 days from the decision of the OLRB on the remaining application, or within 60 days from the reconsideration decision (if reconsideration is requested), the applicant shall serve and file an amended notice of application or advise the Court if she does not intend to proceed. If proceeding, the parties shall request a case conference to address scheduling of the needed steps for the application for judicial review and directions for scheduling the hearing. The court materials that have already been delivered on this application may still be used, with any amendments permitted when the new schedule is set.
. Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario)

In Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario) (Div Court, 2022) the Divisional Court manifests a concern that I have been developing recently in both appeal and JR court practice. Here the court, hearing a JR, purposely ignored factum-raised Keeprite issues (regarding additional material filed in support of the applicant) because the issues were not argued orally in the JR hearing. If this concern is justified then advocates should make clear that all of the factum-raised arguments that they wish advanced in the case are plainly re-argued in the separate, oral argument:
[35] The Registrar submits that paras. 2-56 and 60-64 of the Taus affidavit, and paras. 6-27 and 35-38 of the TenEycke affidavit should be struck since they provide material evidence that was not before the decision-maker. It is conceded that the remaining paragraphs provide information on procedural fairness which is admissible.

[36] The applicants submit that key documents were omitted from the Record and the affidavits properly adduce those documents and provide a factual basis for the Charter arguments.

[37] As there were few references in the argument to the affidavits and no objections, it is not necessary to make a ruling.
. Yatar v. TD Insurance Meloche Monnex

In Yatar v. TD Insurance Meloche Monnex (Ont CA, 2022) the Court of Appeal set out valuable practice directions regarding when both appeal and judicial review were to be advanced to the Divisional Court together:
(3) Concurrent appeal and judicial review proceedings

[53] Before concluding, I will address one other issue that is raised by the parties and that is the reference by the Divisional Court to what it described as “the systemic difficulties associated with duplicative judicial reviews and appeals.” The Divisional Court identified these difficulties as one of the factors weighing against considering the judicial review application.

[54] I have already said that judicial review is available in these cases. As I have also said, there is a difference between the availability of judicial review and whether such relief will be granted. However, the fact that judicial review is available does raise the practical problem of how that application should be dealt with when there is also a statutory right of appeal. On that issue, I make two comments.

[55] First, 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”: Shearer v. Oz, 2021 ONSC 7844, at para. 5.

[56] Second, once both proceedings are commenced, a motion must be brought for the two proceedings to be heard together with a single appeal book/application record and factum covering both proceedings. It would, of course, be open to the Divisional Court to adopt a Practice Direction that directs that this is the process to be followed, in an effort to avoid such motions. The Practice Direction could also address any issues with differing time periods for filing and like matters. Failing that, the time and expense of such a motion could be greatly reduced if counsel were to agree on the terms of an appropriate order with a further agreement that the motion could then be dealt with in writing.

[57] Simply put, the difficulties that the Divisional Court identified with concurrent proceedings can be minimized through appropriate Practice Directions and/or the co-operation of counsel.
. Macmull v. Ministry of Health

In Macmull v. Ministry of Health (Div Ct, 2021) the Divisional Court considered an issue of interest to self-representing litigants and judicial review practice. It started with a letter from the applicants whereby they "sent a request to the Divisional Court to commence an application for judicial review". The request was substantially deficient in numerous respects in substantive law, the naming of parties and in terms of the court document rules. The court noted:
[6] As stated in the October 4, 2021 Rule 2.1 Notice, through case management of this matter, I gave the applicants two opportunities to correct the defects in their notice of application for judicial review and urged them to consult a lawyer. In a communication to the Court dated September 27, 2021, the applicants refused to do so and instead suggested that they should not be required to do anything further to move forward with this matter.

...

[8] As mentioned above, the applicants responded to the Court’s Rule 2.1 Notice. In their response, rather than addressing the defects identified by the Court, the applicants essentially took the position that they should not be required to comply with the legal requirements for moving this matter forward. In doing so, they suggest that it is the Court’s role to investigate their allegations that Sunnybrook mistreated their father. They also take issue with the Court’s characterization of their failure to comply with prior directions meant to assist them in moving this matter forward.

....

[13] As previously suggested in the Rule 2.1 Notice, while the applicants may have legitimate concerns about the care their father received at the hospital, they must follow the proper legal processes for bringing those concerns forward in a legal proceeding. On an application for judicial review, the scope of the Divisional Court’s powers is limited to reviewing the decision under challenge. The applicants’ proposed application does not purport to challenges the Board’s decisions and it raises issues that go far beyond the scope of this Court’s authority on an application for judicial review.

[14] While I accept the applicants’ general proposition that the Court should make some allowances for the fact that they are self-represented, this does not extend to allowing the applicants to bring forward a proceeding that names the wrong parties and that does not state proper grounds for judicial review. While self-represented litigants can be excused from complying with some of the Court’s formal requirements in appropriate circumstances, they nevertheless have an obligation to inform themselves about court processes and to ensure that their proceedings are tenable at law.

[15] Finally, I appreciate that the proposed application for judicial review arises from the death of the applicants’ father. Their father’s death has no doubt caused significant distress and grief. However, if the applicants wish to bring forward legal proceedings arising from their father’s death, they must nevertheless advance a tenable legal claim. An application for judicial review that does not name the proper respondents and that addresses issues that do not arise from the proceedings before the Board is not such a proceeding.
Ultimately the court dismissed the matter under Rule 2.1 for being frivolous and vexatious.

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Last modified: 06-05-24
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