Simon's Megalomaniacal Legal Resources

Judicial Review - Prematurity Exceptions

. Guillaume v Chief Animal Welfare Inspector

In Guillaume v Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered the doctrine of prematurity, here in a JR context and specifically addressing the applicant's raising of Charter arguments:

[19] In Awada, Corbett J. set out the guiding principles for a prematurity analysis, which I adopt. They emphasize that, absent exceptional circumstances, courts should not interfere with ongoing administrative proceedings until after they are completed or until effective remedies are exhausted. This avoids the fragmentation of proceedings. Justice Corbett underscored, at para. 9, the importance of the principle of prematurity in this court, stating that it is followed “scrupulously.” Further, “with active case management being instituted more and more by administrative tribunals, the practical importance of the principle has in no way diminished.”

[20] Raising a constitutional question does not generally constitute exceptional circumstances permitting an applicant to proceed in this court prior to the conclusion of the administrative proceeding: Kustka v. College of Physicians of Ontario, at paras. 31-32. In addition to the concern about fragmentation, this court benefits from having the findings of the tribunal on the constitutional issue.

. Mekdes Kahissay v Intact Insurance

In Mekdes Kahissay v Intact Insurance (Div Court, 2023) the Divisional Court considers JR prematurity and it's exceptions:

[5] As the Court of Appeal stated in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 68:

“…unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.”

[6] This principle respects administrative decision-making and prevents fragmentation, delay and additional costs. It allows the administrative process, often before a tribunal with expertise and experience in the area, to proceed while preserving the right of the court to intervene in exceptional circumstances and, of course, at the end of the process when the court will have the benefit of the tribunal’s findings and reasons which, to quote Stratas J.A. in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] F.C.R. 2332, at para. 32, “may be suffused with expertise, legitimate policy judgments and valuable regulatory experience.”

[7] We are not satisfied that these applications meet the very high bar of exceptional circumstances. As Stratas J.A. stated in CB Powell 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 ....”

[8] In this case the applicants raise a jurisdictional issue as to whether the LAT can issue a stay in these circumstances. However, even jurisdictional issues do not raise exceptional circumstances. As this Court has held in Lourenco v. Hegedus, 2017 ONSC 3872 at para 6, early judicial review "is the exception, not the rule, and will only be permitted in rare cases where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceedings without interruption until their conclusion".

[9] The applicants argue that the effect of the stay orders requires them to either undergo IEs or, possibly, have their proceedings stayed permanently. Even if this is true, comparable consequences arise in other cases. For example, interlocutory appeals are not permitted in cases where a party in a regulatory proceeding, or a trial, is required to address the merits of a proceeding even though they take the position, for example, that the tribunal or judge has wrongly allowed a proceeding to continue when it was unreasonably delayed or is an abuse of process, or in cases where evidence has been admitted which is argued to have been improperly obtained or in breach of the Charter and ought to have been excluded.

[10] Accordingly, these applications do not raise exceptional circumstances justifying a departure from the very strong rule against reviewing interlocutory orders of regulatory tribunals.

. Wahbi v Ontario College of Teachers

In Wahbi v Ontario College of Teachers (Div Court, 2023) the Divisional Court considered when a JR is premature, with particular attention to the 'exceptional circumstances' exception to prematurity:

[16] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 68, the Court of Appeal stated:

…unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.

[17] This principle has been repeatedly recognized and applied by this Court for decades: see, e.g., Latif v. Ontario (Human Rights Comm.), 1992 CanLII 14313 (ON SCDC); Pan v College of Physicians and Surgeons of Ontario, 2021 ONSC 5325 (Div Ct) at para. 19; Rew v Association of Professional Engineers of Ontario (Discipline Committee), 2016 ONSC 4043 (Div Ct) at para. 17.

[18] The principle respects administrative decision-making and prevents fragmentation, delay and additional costs. It allows the administrative process, often before a tribunal with expertise and experience in the area, to proceed while preserving the right of the court to intervene in exceptional circumstances and, of course, at the end of the process when the court will have the benefit of the tribunal’s findings and reasons which, to quote Stratas J.A. in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] F.C.R. 332, at para. 32, “may be suffused with expertise, legitimate policy judgments and valuable regulatory experience.”

[19] This application is premature, for a number of reasons.

[20] The issues raised on the judicial review – res judicata and abuse of process - have also been raised before the Discipline Committee, and motions on these issues were to be heard by the Discipline Committee one week after this motion was heard. If the applicant is successful before the Discipline Committee, the application to this court may be moot. On the other hand, if he is not successful, the applicant will have a right of appeal at the end of the proceeding and these issues can be addressed by the court then, on a full evidentiary record and with the benefit of the reasons of the Discipline Committee: Act, 35(1) and (4).

[21] Issues such as res judicata and abuse of process generally do not constitute exceptional circumstances and, given the present ability to raise these issues before the Discipline Committee, there is no exceptional circumstance that would justify jumping over that process to address the matter before the courts now: Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 CanLII 3360 (ON CA), 19 O.R. (3d) 483 (c.A.); Sherman v. Canada (Canada Customs and Revenue Agency), 2006 FC 715, at paras. 44-45; Hennick v. Toronto Community Housing Corporation, 2006 CanLII 37413 (ON SCDC) at para. 6-7; David v. Law Society of Ontario, 2021 ONSC 4606 at para. 18; Rew at para. 17.

[22] Circumstances raised by the applicant, such as the College relying on what is asserted to be inadmissible opinion evidence or not obtaining all relevant evidence in determining to send the matter to the Discipline Committee, or failing to consider alleged harassment by the complainant of the applicant, are issues that may be raised before the tribunal and do not rise to the level of exceptional circumstances.

[23] In addition, the applicant is challenging a screening decision to send a matter to a hearing. Like the decision of a prosecutor to proceed with charges in a criminal court, courts have repeatedly held that an application for judicial review from a screening or investigatory body that does not finally determine the rights of the applicant is premature: Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807 at para. 25; Haigh v. College of Denturists, 2011 ONSC 2152 at paras. 27-28.

[24] As the application is premature, there are no “apparent grounds for relief”, it is therefore not necessary for me to address whether there would be substantial hardship to the applicant, or to consider other issues such as when the applicant formed the intention to appeal and the length of and reasons for the delay, or prejudice to the respondent.

. 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).

. 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 considered whether, and if so how, the bifurcation of a hearing impacted JR prematurity doctrine:

Bifurcation

[23] The Applicant suggests that because the hearing was bifurcated at a natural break between separate phases of the hearing, it does not raise the same concerns with respect to fragmentation and delay. The case law does not support this argument. While the Federal Court of Appeal has recognized that decisions bifurcated between the merit and remedy phases of a hearing may not raise the same concerns about fragmentation, it explicitly contrasts that with the situation where the hearing is bifurcated on the merits. (Wilson v. Construction and Allied Workers (Labourers’ International Union of North America, Local 607), 2008 CanLII 6522 (ON LRB) at para. 36, reviewed on other grounds 2016 SCC 29.)

[24] Even where the only remaining issue is remedy, the court is often loathe to intervene, finding that the question of remedy should be determined before recourse is made to the Divisional Court. (Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 847 (CanLII); Jones Lang Lasalle Real Estate Services Inc. v Human Rights Tribunal of Ontario and Brian Graff, 2015 ONSC 4005 (CanLII)).

[25] In this case, the decision in question is clearly “in the middle of the hearing on the merits”. There are multiple issues remaining to be determined and there is a real risk of fragmentation and piecemeal litigation if the court proceeds with the application at this time.

. 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 exceptions to the JR prematurity doctrine, here in a labour arbitration that was bifurcated and not yet completed:

Extraordinary or Exceptional Circumstances

[13] A significant body of case law has developed on what constitutes “exceptional or extraordinary” circumstances such that the court will exercise its discretion to hear a judicial review application on an interlocutory decision. Those decisions confirm that such discretion is exercised sparingly and that exceptions are “most rare.” (Wilson v. Construction and Allied Workers (Labourers’ International Union of North America, Local 607), 2008 CanLII 6522 (ON LRB) at para 33, reviewed on other grounds 2016 SCC 29.)

[14] The court, in emphasizing that the bar is high, has noted that “assertions of bias, procedural unfairness, breach of natural justice and lack of jurisdiction do not give rise to an automatic right to judicial review.” (Kadri v. Windsor Regional Hospital, 2019 ONSC 5427 (CanLII) at para 59); See also Volochay at para 63.)

[15] The court has exercised its discretion to judicially review an interlocutory decision in situations where there is real unfairness through a denial of natural justice and/or where a remedy later would not cure the unfairness. For example, in Gage v Ontario (Attorney General), the Court exercised its discretion to hear a judicial review, finding that the underlying decision was so unfair that it represented an exceptional circumstance. In that case, Gage, a police constable, was not notified for ten months about the decision to forward allegations against him to a Board of Inquiry, despite a requirement that he be advised “forthwith.” The court noted that “if there is a prospect of real unfairness through denial of natural justice or otherwise, a superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted…the unfairness in this case is so obvious that it would be inappropriate to put the officer through a trial before a tribunal that lost jurisdiction through a denial of natural justice.( Gage v. Ontario (Attorney General), 1992 CanLII 8517 (ON SCDC) at para. 61).

[16] Similarly, where the College of Physicians and Surgeons failed to give notice of a complaint to the respondent physician and then did not deal with the complaint for more than four and a half years, the court exercised its discretion to hear the judicial review even though the substance of the complaint had not yet been adjudicated. (McIntosh v College of Physicians and Surgeons of Ontario, 998 CanLII 19444 (ON SCDC)).

[17] As the Divisional Court explained in Lourenco v Hegedu:

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. This does not mean that judicial review is available before the conclusion of administrative proceedings in any case where an allegation of this kind is made. It must be emphasized that early judicial review is the rare exception, not the rule, and will only be permitted in rare cases where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceedings without interruption until their conclusion. Analogies can be drawn to criminal prosecutions where it is very rare indeed for a proceeding to be interrupted for judicial review or appeal prior to the conclusion of the proceeding. (Lourenco v. Hegedus, 2017 ONSC 3872 at para. 6.)

[18] There is no suggestion in this case that the process is deeply flawed, or that a breach of natural justice or real unfairness would occur if the judicial review was not heard. Instead, the Applicant sets out a number of submissions the court should consider, none of which amount to exceptional or extraordinary circumstances.

Final Disposition

[19] The Applicant argues that where a decision finally disposes of a substantive right, even if the decision is interlocutory, the judicial review is not premature and the court ought to hear the application. In this case, the Arbitrator’s decision is not dispositive of a substantive right—it determined that the grievor met the initial onus of proving that the Applicant prima facie discriminated against her. It does not find in fact that the grievor was discriminated against since it remains to be determined that the Applicant could not have accommodated the grievor short of undue hardship.

[20] The Applicant relies upon the Court’s decision in Ackerman v Ontario Provincial Police, 2010 ONSC 910 (“Ackerman”) in arguing that the final disposition of a substantive right may be subjected to judicial review. Ackerman relies upon Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon (2005), 2005 FC 1000 (CanLII) (“Kahlon”.) Those decisions clarify that in circumstances where a decision finally disposes of a substantive right and there is no way to remedy the loss of that right in the future, the court may exercise its discretion to hear the judicial review application before the end of the whole proceeding. Kahlon challenged the issuance of a summons for a witness’ immigration file. The court in that case found that the application was not premature because the decision finally disposed of the witness’ rights once her privacy was lost, it could not be regained— and there was no way to cure the breach of her rights in the future.

[21] The court in Ackerman referred to Kahlon as an example of when judicial intervention may be warranted, explaining that “where the decision, although interlocutory in most respects, determines a particular issue (as in Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon (2005), 2005 FC 1000 (CanLII), 35 Admin L.R. (4th) 213 (FC) in which the summons issued would be dispositive of the witnesses’ privacy rights.”(Ackerman v. Ontario Provincial Police, 2010 ONSC 910 at para 19).

[22] This is distinguishable from the facts in this case. The Arbitrator does not finally dispose of any substantive rights. Additionally, there is no need for the court to intervene early because the rights at issue can be remedied in the event a future judicial review application finds that the Decision was unreasonable or incorrect.

....

The Strength of the Case

[34] The court has not typically considered the strength of the case in determining whether to quash an application for prematurity. This is a factor that is considered rarely and only in cases where there are allegations of a breach of natural justice—particularly when allegations of bias are raised. Where the court is being asked to determine whether a particular breach of natural justice rises to an “exceptional” circumstance, the court may consider whether it is “clear and obvious” that the application will be successful. (Unimac-United Management Corp. v St. Clare’s-Monaco Place, 2015 ONSC 4760 (CanLII) at paras. 16 and 17.)

[35] In the present case, there is no question of a breach of natural justice. The Applicant is seeking review of a singular issue raised during a hearing on the merits of the grievance.