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Judicial Review - Prematurity Exceptions (3). Sunova v. CLAAS of America
In Sunova v. CLAAS of America (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an interlocutory JR, this brought against an Agricultural and Rural Affairs Tribunal decision which "dismissed the applicant’s recusal motion, which was based on an alleged apprehension of bias on the part of the presiding Member of the Tribunal".
The court considers JR prematurity exceptions, here where the applicant sought review of an interlocutory administrative decision:Prematurity
[11] The respondent argues that this application for judicial review is premature and should be dismissed given that the underlying administrative proceeding has not yet been concluded.
[12] Absent “exceptional circumstances” an application for judicial review will not be heard until the completion of the underlying proceeding: Malekzadeh v. Ontario Labour Relations Board, 2024 ONSC 2559 (Div. Ct.), at para 5. The decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 does not alter this principle.
[13] In Yatar at para. 54, the Supreme Court of Canada reaffirmed the principle that a reviewing court must still determine whether judicial review is appropriate and retains the discretion to refuse a remedy and may decline to consider the merits of the application. Yatar did not remove or abolish the prematurity principle and the exceptional circumstances standard in making such determination.
[14] As the court stated in Kadri v. Windsor Regional Hospital, 2019 ONSC 5427 (Div. Crt), at paras 49-51, citing C.B. Powell Ltd. v. Canada, 2010 FCA 61 at para. 33:Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings. 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.” [15] See also: National Car Rental Inc. v. Municipal Property Assessment Corp., 2023 ONSC 2989 at paras. 31-32.
[16] The applicant submitted that the Tribunal made a significant error in ordering disclosure arising from a draft report used in the process of settlement discussions and that not granting the application will open the floodgates for motions by other litigants to request disclosure arising from settlement discussions. This is not the issue before this Court, nor was it raised in the written submissions on the disclosure motion before the Tribunal. The applicant has not sought judicial review of the disclosure decisions. The applicant has brought an application for judicial review of the recusal motion, for a finding that there is bias or a reasonable apprehension of bias. The applicant is asking this Court to determine an issue not properly before the panel.
[17] In considering the issue of the recusal motion, based on the totality of the record in the exercise of our discretion, we are not satisfied that the applicant has demonstrated “exceptional circumstances” which would justify prematurely determining this application for judicial review on bias from an interlocutory administrative decision prior to the completion of the underlying proceeding on the merits. To do so will lead to a fragmented administrative process and possible multiplicity of court proceedings.
[18] In reaching this decision, we wish to make it clear that alleging actual bias or reasonable apprehension of bias relating to a tribunal’s interlocutory decision is not an automatic way to avoid dismissal, as premature, of an application for judicial review of that decision. Whether there is actual bias or reasonable apprehension of bias is more appropriately determined based on the conduct of the administrative proceeding as a whole. Judicial review of an interlocutory decision on the grounds of bias should proceed only in the clearest of cases.
[19] This application for judicial review of the Tribunal’s recusal motion determination is dismissed as premature. This is without prejudice to renew the application once the underlying administrative proceeding currently before the Tribunal is completed. . Sohail Aslam v. Ontario College of Pharmacists [declining to hold as premature on consent]
In Sohail Aslam v. Ontario College of Pharmacists (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against a denied abuse of process (delay) ruling in a remitted OCP Discipline Committee proceeding.
Here, in the context of a JR of an interlocutory order, the court - with consent of the respondent - declines to dismiss the JR as premature:Prematurity
[7] With respect to prematurity, the College is not taking the position that, in the particular circumstances of this case, this Court should decline to hear this application. However, it does so only because of the expert evidence as to the increased risk that a second discipline hearing will present to Mr. Aslam’s health. In making this concession, the College is not conceding that the delay in the proceedings caused or contributed to Mr. Aslam’s health struggles.
[8] In view of the College’s appropriate concession, we are not dismissing the application as premature.
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