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JR - Prematurity (6). Ashar v. Ontario Labour Relations Board
In Ashar v. Ontario Labour Relations Board (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a labour OLRB JR, this on a R2.1 'frivolous and vexatious' motion where the underlying grounds alleged "unlawful reprisal under the Occupational Health and Safety Act".
The court applies the doctrine of JR 'prematurity', here in a R2.1 frivolous and vexatious dismissal:[10] I accept that Mr. Ashar has not brought his application in bad faith. However, his application is patently premature. The decision he seeks to have reviewed is an interim decision of the Board. The Board dismissed Mr. Ashar’s request that he be granted default judgment. In its May 26, 2025 directions, it had said that a “Consultation hearing” would be scheduled to deal with the remaining allegations that had not been dismissed. The Board therefore will proceed to deal with the allegations it has permitted Mr. Ashar to pursue. If Mr. Ashar ultimately is dissatisfied with the decision of the Board at the conclusion of its proceedings, he can seek to judicially review the Board’s final decision, which can include the procedural steps leading to that decision.
[11] Absent exceptional circumstances, courts should not interfere in ongoing administrative proceedings until after they are completed or until effective remedies are exhausted. This is a principle “scrupulously” followed in this court to avoid the fragmentation of proceedings: Awada, at paras. 7-9.
[12] Mr. Ashar believes the court should intervene because the Board should not have allowed the responding party to continue to participate in his application since it did not respond to Board directions. But the Board found the responding party had already submitted a response to the application, so there was no basis for default judgment. In any event, the Board’s decision to allow an application to proceed to a decision on the merits in the face of a request for default judgment does not on its own constitute exceptional circumstances.
[13] Mr. Ashar has raised a concern about access to judicial oversight. As I have said, that will be available to him at the completion of the Board process. The court will not intervene at this stage of the Board’s proceeding. The application is doomed to fail and therefore is dismissed pursuant to r. 2.1.01. . Cai Song v. Ontario Labour Relations Board
In Cai Song v. Ontario Labour Relations Board (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a labour JR, here brought against the OLRB's dismissal of the applicant's unlawful reprisal and unfair labour practice applications.
Here the court applies the doctrine of 'prematurity' where the applicant did not avail themselves of available OLRB reconsideration proceedings:[13] If the applicant felt that he was denied an opportunity to make submissions on defamation and harassment, he could have sought reconsideration under s.114(1) of the LRA which gives the Board the power to reconsider any decision it has made. These issues fall squarely within Information Bulletin 19 where the Board has stated it will grant a request for reconsideration in a variety of circumstances including “Where representations are sought to be made which the party seeking consideration had no previous opportunity to make”. Therefore, the applicant’s application for judicial review on this issue is premature. . Caledon Residences Inc. v. Ontario Land Tribunal
In Caledon Residences Inc. v. Ontario Land Tribunal (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here brought against "the decision of the Ontario Land Tribunal".
The central issue here was whether the JR applicant should instead have sought a statutory appeal (which required leave), and that the JR was therefore premature:[3] For the reasons set out below, the application is dismissed. Section 24(1) of OLTA indicates a clear legislative intention to subject the Tribunal’s decisions on questions of law to a requirement that leave be sought. ....
[4] Judicial review in these circumstances would undermine the Legislature’s choice to subject questions of law to a leave motion. The statutory appeal mechanism is a meaningful and adequate means to challenge decisions on questions of law that are incorrect or were taken in a way that was procedurally unfair: Humberplex Developments Inc. v. Ontario (AG), 2024 ONSC 2335 (Div Ct.).
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Issue 1. Is Judicial Review appropriate or suitable in this case?
[18] Sunshine Group submits that this court should decline to hear CRI’s application for judicial review because the statutory appeal mechanism, which is restricted to questions of law, requires potential appellants to seek leave to appeal. Section 24 (1) of the Ontario Land Tribunal Act, 2021, c 4, Sch 6 (“OLTA”) provides:24 (1) Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law. [19] The applicant submitted that it did not bring a motion for leave to appeal because it did not think it met the leave criterion requiring that the question be of sufficient general or public importance to merit the attention of the court. The deadline has passed to seek leave to appeal under subrule 61.03 (1)(b) of the Rules of Civil Procedure, RRO 1990, Reg 194. A motion for an extension of time remains available to CRI under rules 2.03 and 3.02. Sunshine Group submits that while it believes that the “general or public importance” criteria is met, the test for leave is not met with respect to the merits of the appeal and there is no reason to doubt the correctness of the decision.
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Analysis
[20] In Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 at para.54, the Supreme Court of Canada emphasized that reviewing courts are required to begin their inquiry by determining whether to exercise their discretion to judicially review a decision. CRI’s application for judicial review is based solely on whether there was a breach of procedural fairness. Since procedural fairness is a legal standard, the assessment of whether an administrative decision-maker complied with this duty is a question of law: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at paras. 30; Patton v. Aviva Insurance Co. of Canada, 2025 ONSC 4234 at para. 35 (Div. Ct.); Shapiro v. Swingler, 2021 ONSC 6191, at paras. 16 and 25 (Div. Ct.); 2541005 Ontario Ltd. v. Oro-Medonte (Township), 2023 ONSC 5569 at para. 35 (Div. Ct.).
[21] Section 24(1) of OLTA indicates a clear legislative intention to subject the Tribunal’s decisions on questions of law to a requirement that leave be sought. Allowing judicial review in these circumstances would undermine the Legislature’s choice to subject questions of law to a leave motion. In Humberplex Developments Inc. v. Ontario (AG), 2024 ONSC 2335 (Div Ct.) the court held that questions of procedural fairness raised in an application for judicial review were more appropriately addressed in the motion for leave to appeal and appeal and that they provide an adequate alternative remedy that is consistent with the applicable statutory scheme, under which applicants can address questions of law (including procedural fairness) in the context of an appeal. The statutory appeal mechanism is a meaningful and adequate means to challenge decisions on questions of law that are incorrect or were taken in a way that was procedurally unfair.
[22] Accordingly, I would decline to exercise my discretion to hear CRI’s application for judicial review.
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