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Judicial Review - Prematurity (3)

. Sudbury and District Health Unit v Ontario Nurses’ Association

In Sudbury and District Health Unit v Ontario Nurses’ Association (Div Court, 2023) the Divisional Court considers prematurity in a labour arbitration JR, here where human rights discrimination issues were bifurcated and not yet completed before the arbitrator:
[11] The courts have long been reluctant to entertain judicial review applications unless the decision being reviewed is final and the underlying administrative proceeding is completed. Only in exceptional or extraordinary circumstances will the court interfere with a proceeding midstream. Federal and provincial appellate courts have affirmed this approach, confirming that parties generally only have recourse to the court system once a final decision has been rendered and after all adequate remedial recourses in the administrative process have been exhausted. (C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 (CanLII); Wilson v. Construction and Allied Workers (Labourers’ International Union of North America, Local 607), 2008 CanLII 6522 (ON LRB), reviewed on other grounds 2016 SCC 29; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 12.)

[12] The Ontario Court of Appeal has explained in Volochay that the rationale for limiting judicial review to final decisions is to avoid fragmentation of the administrative process and a piecemeal approach to litigation. Fragmentation causes both disruption and delay to administrative proceedings. At para. 69, the Court quoted Stratas J.A. who summarized the rationales for the principle in C.B.Powell at paras.31-32:
[69] ... Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.] (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 68-69)
. Sudbury and District Health Unit v Ontario Nurses’ Association

In Sudbury and District Health Unit v Ontario Nurses’ Association (Div Court, 2023) the Divisional Court considers the policy bases of 'delay' and 'inefficiency' as justifications for the JR prematurity doctrine, both respecting the overall present proceedings, and as a systemic factor:
Delay

[26] The courts have expressed concern that proceeding with judicial review applications filed on interlocutory decisions will create delays in both the administrative and judicial legal systems. While the Applicant argues that proceedings before the Arbitrator have not been substantially delayed, it has already been almost a year since his first decision was released. If the Applicant is successful, the parties will need to return to the Arbitrator, make new submissions on the issue of prima facie discrimination, and wait for his decision before proceeding to the next phase of the hearing, leading to further delay. In addition, concerns about delay are not restricted to delay in a particular proceeding, but are broader in their impact to administrative proceedings in general. (Air Canada v. Lorenz (T.D.), 1999 CanLII 9373 (FC) at para. 25).

[27] A similar sentiment was voiced by the Divisional Court in Unimac-United Management Corp. v St. Clare’s-Monaco Place, 2015 ONSC 4760:
[14] The third consideration is delay. As in the Lorenz decision, (see paras. 24- 25), the delay consideration extends beyond the parameters of this case. If the matter does not proceed, we are inviting other parties in other cases to seek delay by alleging bias or other breaches of natural justice. In such circumstances, we would thus run the risk of reducing fundamental concerns running to the heart of the administration of justice such as bias to an “off ramp” from a statutorily mandated process when the proceeding is not going well for one of those parties.
[28 The court has been clear about its concern that premature judicial review applications may lead to delay in both the individual case and the system as a whole. The Applicant’s suggestion that there has not been substantial delay is not persuasive.

Need to Avert Costly and Complex Litigation

[29] The Applicant submits that resolution of this application will avert costly and complex litigation that would otherwise prove unnecessary. Resolution of this application does not resolve the outstanding issues before the Arbitrator. In addition, the court has been clear that this is not an exceptional circumstance that would lead it to hear a judicial review application on an interlocutory decision. For example, in Allstate Insurance Company v Billard 2019 ONSC 6265, the applicant argued that costs and time would be saved by hearing the judicial review because the expense and inconvenience of a full-blown hearing could be avoided. In denying the application, the court noted that “the possibility of cost savings by a fragmented hearing or a bifurcated trial is routinely the basis asserted for the strategic decision to ask for a review or appeal of a preliminary decision. That does not qualify as exceptional. Moreover, the potential costs-savings rationale has been routinely rejected by courts on both policy and factual bases.” (Allstate Insurance Company v Billard), 2019 ONSC 6265 at paras. 13 and 14).

[30] Similarly, in Bannis v Ontario College of Pharmacists, 2020 ONSC 6115, the applicant argued that if she was successful on judicial review, the need for the balance of the hearing would be avoided. This argument was rejected as not being an exceptional circumstance and the Court dismissed the application for judicial review on the grounds of prematurity. (Bannis v Ontario College of Pharmacists 2020 ONSC 6115 at para. 7).
. 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 prematurity:
[1] On June 21, 2022 the Assessment Review Board (“ARB”) denied the Applicants’ motion to amend their Statement of Issues after the timelines set out in the ARB’s Rules to delivery their Statement had expired.

[2] The Applicants brought a motion for leave to appeal the ARB’s June 21, 2022 decision (“the decision”) pursuant to the Assessment Act, R.S.O. 1990, c. A.31. They later abandoned the motion because the Divisional Court does not have jurisdiction to hear statutory appeals from interlocutory rulings by tribunals unless expressly authorized by statute. Sections 40(22) and 43.1 of the Assessment Act do not provide for interlocutory appeals; only appeals from a final order on a question of law, with leave.

[3] The Applicants now seek judicial review of the ARB’s dismissal of their motion on the same basis as was set out in the abandoned motion for leave to appeal.

....

[27] This is a misapprehension of the role of judicial review. Judicial review and the use of prerogative writs are extraordinary and discretionary remedies. Although this court has discretion to hear an application for judicial review from any administrative decision, judicial review of an interlocutory decision may only be heard in exceptional circumstances.

[28] In the normal course, an interlocutory tribunal decision is challenged after the tribunal has rendered its final decision in the matter. In the case of the ARB’s decisions under the Assessment Act, this is done by way of statutory appeal on a question of law, with leave of this court.

[29] It is well-established that, in most cases, reviewing courts will decline to engage in a judicial review until the administrative proceeding has been completed. The rationale for this principle was summarized in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at paras. 31-32, quoted with approval by the Court of Appeal for Ontario in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 69:
Absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.
[30] The prematurity principle has been consistently applied by this court on judicial review from interlocutory tribunal decisions and was recently summarized in Gill v. College of Physicians and Surgeons, 2021 ONSC 7549 at para. 31 (Div. Ct.):
This court has repeatedly held that absent exceptional circumstances, applications for judicial review of decisions of administrative bodies should not be brought until the end of the tribunal’s proceedings and after the party seeking review has exhausted all available effective remedies within the administrative scheme. The rationale for this principle is to avoid a piecemeal approach to judicial review, to allow administrative matters to run their full course before the tribunal, and to have all legal issues arising from the proceeding considered together at their conclusion.
[31] Absent exceptional circumstances, a tribunal proceeding will be allowed to run its course. All issues arising from the entire proceeding together are to be addressed on appeal or in a judicial review of the tribunal’s final order. As the Federal Court of Appeal noted in C.B. Powell Limited, at para. 33:
Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This is shown by the narrowness of the “exceptional circumstances” exception.… Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high.… Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted.
[32] As stated in Kadri v. Windsor Regional Hospital, 2019 ONSC 5427 at para. 59 (Div. Ct.), even assertions of bias, procedural unfairness, breach of natural justice and lack of jurisdiction do not give rise to an automatic right to judicial review. The fact that an important legal issue – or even a jurisdictional or constitutional issue – is raised does not create an exceptional circumstance.

[33] Nor or is it an exceptional circumstance that the tribunal hearing will need to be conducted again if the court ultimately overturns the tribunal’s final decision. That possibility always exists in a premature judicial review and is generally outweighed by the benefits of allowing the tribunal proceeding to run its course: see Pafco Insurance Company v. Sahadeo, 2022 ONSC 328 (Div. Ct.).

[34] The Applicants do not allege bias, procedural unfairness, a breach of natural justice or a lack of jurisdiction within their request for judicial review. Instead, they argue with some force, that because they cannot include evidence of extraordinary changes in the state and condition of the properties resulting from the pandemic, that the final decision of the ARB will be wrong.

[35] This is not a basis for judicial review of an interlocutory decision. The ARB has only determined the threshold issue of whether the Assessment Act requires that the current value of a property as set out in paragraph 19.2(1) be reassessed annually, within the context of a motion to extend the Schedule of Events. This is not a determination of the merits.

[36] The Applicants also propose that the June 21, 2022 decision determines on a final basis that pandemic-related government restrictions on taxpayers’ properties at Pearson International Airport does not change the legislative scheme set out in the Assessment Act. They argue that this makes the June 21, 2022 Decision an exceptional circumstance.

[37] I disagree. First, the decision is not a final order. A final order is one that “disposes finally of a claim. An order is not final just because it is one of substance. Where the effect of an order is to continue the inquiry, it is not final”: Delic v. Enrietti-Zoppo, 2022 ONSC 1627, at para. 7 (Div. Ct.).

[38] Second, the Applicants confuse the global exceptional circumstances of the pandemic with the exceptional circumstances necessary for a court to judicially review an interlocutory order. The two are very different, as is the exceptional circumstances test in section 40 and 49 of the Assessment Act. Exceptional circumstances permitting judicial review of an interlocutory decision is a narrow legal test that carries a high threshold.

[39] The issue before the ARB on June 21, 2022 was not whether pandemic restrictions constituted global exceptional circumstances, but whether section 19.2(1) of the Assessment Act should be read as requiring evidence of events subsequent to January 1, 2016 as necessary to the ARB’s determination of the Applicant’s appeal of the MPAC valuation assessment for the 2021 taxation year.

[40] The ARB has not yet adjudicated that issue. Instead, the interim decision before this Court is a denial of a request for an extension of time to add an issue to the appeal already before it. That is not a final determination of the Applicants’ claims. A tribunal’s decision not to allow an issue to be added to a dispute is interlocutory, even if the reason for the decision involves an analysis of the substantive law.

[41] In Grewal v. Peel Mutual Insurance Company, 2022 ONSC 4082 (Div. Ct.), the Licence Appeal Tribunal refused a request to add punitive damages to the issues in dispute based on its determination that it has no jurisdiction to award punitive damages. The applicant filed a statutory appeal to this Court, arguing that the Tribunal’s jurisdictional analysis was in error. A panel of the Divisional Court dismissed the appeal as interlocutory, noting at para. 9 that the appellant would have a remedy at the conclusion of the tribunal proceeding:
This appeal is therefore premature. The parties should complete the proceeding before the Tribunal respecting the appellant’s application, which has been on hold since the decision was made over a year ago. If she decides to appeal the Tribunal’s final decision on the merits, the issue of the availability of punitive damages can be raised as an issue before the panel hearing the appeal.
[42] Neither does the fact that other ARB proceedings have been put on hold pending this application make this application for judicial review exceptional. As stated by the Federal Court of Appeal in C.B. Powell Limited, “the presence of an important legal or constitutional issue” is not an exceptional circumstance that allows the administrative process to be bypassed.

[43] I find that the request for judicial review is premature.
. Sharpe and Sharpe v The Capital Markets Tribunal

In Sharpe and Sharpe v The Capital Markets Tribunal (Div Court, 2023) the Divisional Court considered (and granted) a motion to quash a JR brought against the Ontario Securities Commission from a ruling from the newly-named 'Capital Markets Tribunal', here for prematurity. The case was complicated by several interlocking motions, and the moving party sought to argue against the classical 'efficiency' policy underlying prematurity, here on the basis that resolving this present motion would itself be efficient. The case is useful for considering an administrative 'prematurity exception':
[7] It is well-established that this Court will not hear a premature application for judicial review absent exceptional circumstances. I adopt the following summary discussion of these principles as set out by Swinton J. in Cheng v. Ontario Securities Commission, 2018 ONSC 250, as follows:
[21] …Generally, courts are reluctant to interfere in ongoing proceedings before administrative tribunals for good policy reasons. However, in exceptional circumstances, a court may exercise its discretion to hear an application for judicial review of an interlocutory decision.

[22] Such cases are rare. As Nordheimer J. stated in Azeff v. Ontario Securities Commission 2014 ONSC 5365 (Div. Ct.) at para. 7, the exception should be reserved for cases where the ruling complained of is “so tainted” that the result of the later judicial review would be “preordained” at para. 7... He did so in a case where the applicants alleged a denial of natural justice.

[23] The Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 has emphasized that even a breach of the rules of natural justice or a true question of jurisdiction is not sufficient to warrant automatic access to judicial review (at para. 63). See also Lourenco v. Hegedus, 2017 ONSC 3872 (Div. Ct.) at para. 6:
In rare cases this court will intervene on an application for judicial review in the midst of an administrative process where there are strong reasons to believe that the ongoing process is so deeply flawed that there is a strong likelihood that it will have to be run over again, usually on the basis of bias, reasonable apprehension of bias or want of jurisdiction.
[8] The doctrine of prematurity seeks to avoid fragmentation and delay of administrative proceedings. As set out in Cheng, at para. 30, the applicants must show that this is a rare case where early intervention is warranted because “there is a danger of manifest unfairness in the hearing.” The applicants submit that this is such a case in relation to their upcoming stay motions

....

[17] The applicants accept that this Court is not required to engage in a thorough analysis of the merits of the judicial review application to decide the prematurity issue: Toronto Transit Commission v. Amalgamated Transit Union Loc. 113, 2020 ONSC 2642, at para. 33. ...
. Di Giulio v. Aviva General Insurance Company

In Di Giulio v. Aviva General Insurance Company (Div Court, 2023) the Divisional Court considered a stay pending JR, where the JR is of an interlocutory decision of the LAT (SABS) to hold a written hearing rather than an oral hearing. The motion lost due to the general prematurity doctrine which governs JR of interlocutory tribunal decisions (Volochay):
[6] While the threshold for the first factor – serious issue – is low, it is significant in this case. This is a challenge to an interlocutory order of the LAT. Not surprisingly, the respondent submits that the stay should be denied because the application for judicial review is premature. There is no question that it is premature. The proceedings before the LAT have not yet concluded. There is no LAT decision on the appellant’s statutory accident benefits claim.

[7] “It is a fundamental principle of our legal system as it relates to both litigation before the LAT and similar tribunals, as well as trials in our court system, that decisions made during the course of a proceeding are not subject to judicial review or an appeal until such time as the process itself is complete”: Cura v. Aviva Insurance Canada, 2021 ONSC 2290 (Div. Ct.) at para. 30, citing Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541. In turn, this court will only hear a premature application for judicial review in exceptional circumstances.
. Holland, L.P. v. Labourers’ International Union of North America et al ['exceptional circumstances' exception]

In Holland, L.P. v. Labourers’ International Union of North America et al (Div Court, 2023) the Divisional Court held that a JR was premature, even on a constitutional (and jurisdictional) issue:
[4] At the outset of the hearing, the panel requested submissions from all parties on the question of prematurity. The union supported the Board’s position that the matter was premature. Holland submitted that the application was not premature. It argued that the Board had reached a final decision on the question of jurisdiction. Further, in its submission, the Board’s decision would have significant impact regardless of the outcome of the certification applications, given that Holland historically has managed its employment relations as governed federally. It is concerned that if it is ultimately successful in defeating the certification applications, the jurisdictional decision will remain unchallenged.

[5] After hearing the parties’ submissions, the panel advised that the matter was dismissed on the basis of prematurity, with reasons to follow. These are our reasons.

[6] Absent exceptional circumstances, the Divisional Court will not fragment proceedings before administrative tribunals. This means that unless the circumstances are exceptional, the Court will refuse to consider individual issues, including constitutional issues, until the proceedings are concluded: Ontario College of Art v. Ontario (Human Rights Commission), (1993) 1993 CanLII 3430 (ON SCDC), 11 O.R. (3d) 798, at paras 6-7; Rail Cantech v. Labourers’ International Union of North America, 2013 ONSC 7236, at para. 6.

[7] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 67, the Court of Appeal confirmed that even true questions of jurisdiction do not in themselves amount to “exceptional circumstances.”

[8] In Rail Cantech, this Court quashed an application for judicial review as premature in circumstances almost identical to those before us. As in this case, the union there had brought a certification application, which the Board determined fell within provincial jurisdiction. The employer then sought judicial review of the decision on the constitutional issue. The Court found there were no exceptional circumstances that would warrant a review of the constitutional issue before the Board had finally decided the certification application.

[9] Holland submitted we should reach a different conclusion. It took issue with the statement in Rail Cantech at para. 5 that if the union was not certified on the merits, the application for judicial review “would be rendered meaningless.” In Holland’s submission, the decision in the current case would have significant impact on the management of its labour relations regardless of the outcome of the certification application.

[10] In our view, this matter is on all fours with Rail Cantech. The proceedings before the Board in this case should not be fragmented for several reasons. If the union is successful on the certification applications, the decision of the Board may be judicially reviewed, leading to a second judicial review and the inefficient use of this Court’s resources. Further, the Board’s determination on the constitutional question was specific to the circumstances before it. The Board’s decision carefully reviewed and relied on findings related to, for example: the nature of Holland’s contracts with CN and CP (renewable, fixed-term); that Holland supervises and controls its own employees; that Holland does not work for a single federal undertaking but does a substantial amount of work for CP and CN; and that its relationships with CN and CP are substantially the same as with provincially regulated clients. Given that the Board’s determination related to the specific business relationships and other facts before it, it was not necessarily a constitutional determination applicable to all Holland labour relations matters for all time.
. Kahissay v. Intact Insurance

In Kahissay v. Intact Insurance (Div Court, 2022) the Divisional Court considers when a JR application may be made against a tribunal's interlocutory order:
[2] By my direction, the Registrar issued a notice pursuant to Rule 2.1 that the court is considering dismissing the appeal on the following basis:
It appears that the appeal concerns an interlocutory order of the LAT. As has been found recently in this court, the Divisional Court has no jurisdiction to hear an appeal from an interlocutory order of the LAT: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (“Penney”).
[3] The appellant’s submissions in response to the R.2.1 notice are as follows:
(a) there are two “lines of authority” in the Divisional Court. One, reflected by the decision of Marrocco ACJSCO in Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (“Taylor”), holds that an appeal from an interlocutory decision of the LAT is available in the Divisional Court, and the Divisional Court may intervene in respect to an interlocutory ruling of the LAT in “exceptional circumstances”. The other, reflected in the decision of Swinton J. in Penney, holds that there is no jurisdiction in the Divisional Court to hear an interlocutory appeal from the LAT.

(b) Taylor is correct and Penney is incorrect and, in any event, where there are two competing lines of authority in this court, the issue is not fit for decision by a single judge on a R.2.1 review and it should be placed before a panel of this court.

(c) in the alternative, this case fits within the “exceptional circumstances” category and the appellant should be granted leave to convert this appeal to an application for judicial review.
[4] As is reflected in the reasons of Swinton J. in Penney, this court has long held that it has no jurisdiction to hear an appeal from an interlocutory order of the LAT. There is jurisdiction to intervene in respect to such an interlocutory decision by way of judicial review, but this jurisdiction is exercised sparingly so as not to fragment and delay administrative proceedings.

[5] The “contrary line of authority” has relied upon the “prematurity” principle used in judicial review to restrict recourse to appeals of interlocutory decisions to exceptional cases: Taylor and Micanovic v. Air Canada Ltd., 2022 ONSC 1566, at paras. 30, 32 and 33.

[6] The court in Taylor did not explain the basis of its jurisdiction and did not reference, distinguish or overrule prior jurisdictional decisions to the contrary. The authority it did rely upon was in the context of judicial review, not an appeal. Thus, Taylor can be said to have been decided per incuriam on the issue of jurisdiction. Other decisions taking a similar approach (including my own single-judge decision in The Personal Insurance Co. Ltd. v. Jia, 2020 ONSC 6361) followed the logic of Taylor without addressing the prior contrary authority on the issue of jurisdiction.

[7] Penney stands as a recent statement by a panel of this court on this issue. It is binding on me as a single judge deciding a R.2.1 issue. Further, given the history of this issue in this court, Penney can be taken as the authoritative statement of the Divisional Court on this issue: Taylor and Jia were both wrongly decided on this point – though I note that both Taylor and Jia are correct in the result – both appeals were dismissed for prematurity, though both should have been dismissed for lack of jurisdiction. Where one “line of authority” is correct on a point and another “line of authority” is incorrect and decided (on the point) per incuriam, a panel of this court may resolve the point authoritatively. No purpose would be served by sending the issue to another panel of this court: Penney has settled the issue.
. Dr. Luchkiw v. College of Physicians and Surgeons of Ontario

In Dr. Luchkiw v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered a JR of a disciplinary finding of the 'Inquiries, Complaints and Reports Committee' (ICRC) of the College of Physicians and Surgeons of Ontario (CPSO), here regarding issuing COVID vaccination exemptions and related COVID matters. In this quote the court applies an exception to the administrative prohibition of JR for interlocutory (here, interim) orders:
Is the Application for Judicial Review Premature

[53] Dr. Luchkiw seeks judicial review of the Suspension Order. She has not sought judicial review of the decision to appoint the investigators or of the Restrictions Order.

[54] The Suspension Order is an interim order, which was made at the investigative stage of the disciplinary proceeding. In the normal course, this Court does not intervene in ongoing administrative proceedings on the basis that intervention is premature. However, in the case of an order suspending the member’s certificate of registration, the application for judicial review is not premature. As stated in Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597 (Div Ct):
In this case, the College did not take the position that the application for judicial review is premature. I note that this is consistent with this Court’s jurisprudence in cases such as Dua v. College of Veterinarians of Ontario, 2021 ONSC 6917, where the Court refused to dismiss an application or judicial review on the basis of prematurity in the context of the interim suspension of a veterinarian’s licence. In that case, the Court held that the application was not premature because the applicant would be prevented from practicing for the foreseeable future and, as held at para. 18, “there is no alternate internal remedy available to [the applicant] to appeal or review the order in question”: at para. 29.
[55] I find that judicial review of the Suspension Order is not premature.
. Xanthopoulos v. Canada (Attorney General)

In Xanthopoulos v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered prematurity in the bringing of a judicial review:
[4] At paragraph 16 of his reasons, the Motion Judge noted "“the well-established principle that, absent exceptional circumstances, a party must exhaust all adequate remedial administrative processes before resorting to a judicial remedy.”" In support of this principle, he cited Forner v. Professional Institute of the Public Service of Canada, 2016 FCA 35 at para. 13; and Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61 at paras. 30-31. To these authorities might now be added the recent decision in Dugré v. Canada (Attorney General), 2021 FCA 8 at paras. 34-37. Paragraph 37 of Dugré described this principle as "“next to absolute.”"


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Last modified: 02-06-23
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