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Judicial Review - Prematurity II

. Berge v. College of Audiologists and Speech-Language Pathologists of Ontario

In Berge v. College of Audiologists and Speech-Language Pathologists of Ontario (Div Ct, 2022) the Divisional Court held that judicial review in administrative proceedings is premature until they are complete:
[7] We find that the application is premature. It is well established that, absent exceptional circumstances, a court should not interfere in administrative processes until they are complete. The authorities supporting this proposition are based on the sound policy of allowing administrative proceedings to run their full course before a tribunal, and for the courts to consider the legal issues arising from an administrative proceeding, including procedural matters, based on a full record and a reasoned decision of the tribunal. This approach prevents fragmented and piecemeal review of administrative proceedings. See, for example: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at paras. 68-70; Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057 (Div. Ct.) at para. 38; Bannis v. Ontario College of Pharmacists, 2020 ONSC 6115 (Div. Ct.) at para. 9.

[8] In our view, no exceptional circumstances have been demonstrated by the applicant.

[9] Where the issue is the appointment of an investigator it is preferable to allow the administrative proceedings to run their full course: Lala v. College of Physiotherapists of Ontario, 2003 CanLII 37231 (Ont. Div. Ct.) at para. 2.

[10] The College’s investigation is ongoing. The next step will involve the Registrar of the College reporting the results of the investigation to the College’s Inquiries, Complaints and Reports Committee (the “ICRC”), pursuant to s. 79(a) of the Code. Once the ICRC is presented with the Registrar’s report, the ICRC will determine how to dispose of the matter. Under ss. 26(1) of the Code, the ICRC has several options, including referring specified allegations of misconduct to the College’s Discipline Committee, requiring the applicant to appear before the ICRC to be cautioned, taking no action, or taking other action that the ICRC considers appropriate and not inconsistent with the College’s governing legislation.

[11] It is unknown at this stage of the investigation what action, if any, the ICRC will take as a result of the investigation, as the ICRC has not yet been presented with the report of the investigation by the Registrar. If the College refers the matter to the Discipline Committee, the applicant will be entitled to procedural fairness and a full opportunity to respond to any allegations against her pursuant to ss. 38-56 of the Code.

[12] The applicant’s application is premature.
. Matheson v. College of Physicians and Surgeons of Ontario

In Matheson v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court consider an issue of administrative prematurity:
Issue of prematurity

[28] In the normal course, the Divisional Court does not intervene in ongoing administrative proceedings unless there are exceptional circumstances: Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115, at para. 9.

[29] 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 for 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”.
. Herbert v. Canada (Attorney General)

In Herbert v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal held that a judicial review of an interlocutory order in a labour arbitration was premature, despite a useful consideration of exceptions to that rule::
[8] Unfortunately for him, this Court cannot do so because this judicial review proceeding is premature. As this Court held in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332 at para. 31 (CB Powell), "“absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course”", a principle that "“applies to all matters that arise during the administrative process”" (Klos v. Canada (Attorney General), 2021 FCA 238, 2021 CarswellNat 5590 at para. 6).

[9] The principle of judicial non-interference with ongoing administrative processes is important because it "“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”". This principle allows reviewing courts, when a matter comes to them "“at the end of the administrative process”, to “have all of the administrative decision-maker’s findings”", which "“may be suffused with expertise, legitimate policy judgments and valuable regulatory experience”" (CB Powell at para. 32).

[10] The Court, in CB Powell, noted that courts across Canada have enforced that principle "“vigorously”", as evidenced by the "“narrowness of the ‘exceptional circumstances’ exception”", which is "“best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision makers before or during their proceedings”" (CB Powell at para. 33).

[11] Thus, procedural fairness concerns, which are what the applicant is voicing regarding the impugned interlocutory decision, do not meet the high threshold of exceptionality; important legal, jurisdictional or constitutional issues do not either. As well, of particular note for the present matter is the fact that the consent of all parties to early recourse to the courts does not constitute an exceptional circumstance engaging the exception to the principle of non-interference with ongoing administrative processes (CB Powell at paras. 33 and 39-46).

[12] These principles were reiterated with vigor in the recent case of Dugré v. Canada (Attorney General), 2021 FCA 8, [2021] F.C.J. No. 50 (QL/Lexis) (Dugré), where this Court, raising the issue on its own motion, held that the non-availability of interlocutory relief was "“next to absolute”" (Dugré at para. 37). It underscored the fact that the "“very rare”" circumstances that would allow a party to bypass the administrative process "“require that the consequences of an interlocutory decision be so ‘immediate and radical’ that they call into question the rule of law”" (Dugré at para. 35, quoting Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, [2015] 4 F.C.R. 467 at paras. 31-33).

[13] The Court warned against a "“less stringent criterion”" that "“would only encourage premature forays into courts and a resurgence of the ills identified in C.B. Powell”". In particular, it pointed to "“certain recent attempts by the Federal Court to restate the settled test by refining criteria for exceptions”", holding that they were "“ill-advised and should not be viewed as authoritative”" and that they "“only serve[d] to muddy the waters and compromise the rigour of the principle of non-interference”" (Dugré at para. 37) (emphasis added).

[14] One of these attempts was made in Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732, [2019] 4 F.C.R. 217 (Whalen), where the Federal Court held that the "“hardship to the applicant”" was one criterion to be assessed in determining whether an exception to the prohibition on judicial review of interlocutory rulings was warranted in a given case (Whalen at para. 21, quoting Almrei v Canada (Citizenship and Immigration), 2014 FC 1002, 466 F.T.R. 159 at para. 34).

[15] This is precisely the concern raised by the applicant in this case. He urged the Court at the hearing of his application to look into the "“practical realities”" of the present matter: the costs associated with the prospect of having to come back to this Court and having to raise the same issue; his situation of vulnerability arising from his disability and the fact he lost his job; and the quasi-unlimited means of his adversary to defend against his proceedings before the Board.

[16] These considerations are of no assistance to the applicant. As stated in Dugré, restating the exceptionality test so as to include this type of considerations "“would only encourage premature forays into courts”" and "“compromise the rigour of the principle of non-interference”" (Dugré at para. 37).

[17] It cannot be said either that the consequences of the Board’s evidentiary interlocutory decision are so "“immediate and radical”" that they would compromise the rule of law. The application of the principle of non-interference in the case at hand will not deprive the applicant of his rights as he would maintain the ability to challenge the Board’s decision on remedy, including any evidentiary issue that might have come up during the remedy hearing, once the arbitration process has run its course. As stated in CB Powell, if the applicant eventually challenges that decision, the Court would then have the full benefit of all of the Board’s findings suffused, as they may be, "“with expertise, legitimate policy judgments and valuable regulatory experience”", something the Court does not have at this point in time (CB Powell at para. 32).
. Isaac v. Law Society of Ontario

In Isaac v. Law Society of Ontario (Div Ct, 2021) the Divisional Court cites Awad as a recent review of the law of prematurity in judicial reviews:
Prematurity

[10] This court has recently reviewed the law on prematurity: Awad v. Allstate Insurance Company, 2021 ONSC 8108. I do not fault the applicant for not having reviewed Awad – it was just recently released. However, jurisprudence on the principle of prematurity should have been addressed in his submissions. To quote two longstanding authorities in this area (both quoted in Awad):
“[A]bsent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until effective remedies are exhausted” Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, per Stratas J.A.

For some time now, the Divisional Court has… taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion…. Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 CanLII 3430 (ON SCDC), 11 OR (3d) 798 at 800.
[11] Exceptional circumstances can lead this court to entertain an appeal or judicial review of an interlocutory decision of an administrative tribunal. Mr Isaac has not identified any exceptional circumstances in this case.
. Lafond v. Her Majesty the Queen in right of Ontario

In Lafond v. Her Majesty the Queen in right of Ontario (Div Ct, 2021) the Divisional Court set out basic doctrine of prematurity for judicial reviews:
[41] The Board submits that this application is premature because there are no exceptional circumstances warranting a departure from the ordinary principle that this court will not proceed with a judicial review until the matter has run its course before the administrative decision-maker: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR 364, at para. 35.

[42] This 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”: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 68. However, that is not this case, given that the applicant must first be incarcerated and then await a hearing before having access to any remedy.

[43] The court has discretion to hear an application for judicial review of an interim decision where there are exceptional circumstances: Volochay, at paras. 68-70; Halifax (Regional Municipality), at paras. 35-36.
. Dua v. College of Veterinarians of Ontario

In (Div Ct, 2021) the Divisional Court considered the issue of prematurity in a judicial review case:
Should the Judicial Review Application be Dismissed on the Basis of Prematurity?

[17] The College maintains that Dr. Dua’s application should be dismissed on the basis of prematurity. The doctrine of prematurity is discussed by the Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at paras. 68-69:
[68] The application judge recognized the principle that 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:

[69] The rationales for this principle are well known. The principle respects administrative decision-making and the legislature’s intent that internal review processes be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention. Stratas J.A. summarized the rationale for the principle in C.B. Powell at paras. 31-32, and I can do no better than quote his words:
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 judicial process will a reviewing court have all of the administrative decision-maker’s findings; these findings maybe 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.
. Berko v. Ontario College of Pharmacists

In Berko v. Ontario College of Pharmacists (Div Ct, 2021) the Divisional Court considered the doctrine of prematurity in a judicial review case:
[7] The principle of prematurity has been enunciated by this court in Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115 (“Bannis”) at para. 9:
It is well established that judicial review is a discretionary remedy. Normally, courts are reluctant to review interlocutory or interim steps in an administrative proceeding, preferring to wait until the proceeding has run its course in order to avoid fragmentation of the administrative process and delay, as well as to respect the legislative decision to confer decision-making authority on the administrative tribunal. Therefore, judicial review will be refused where the application is premature, unless there are exceptional circumstances: see Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 [“Volochay”] at para. 70.
[8] Relying on an earlier decision of this court in McIntosh v. College of Physicians and Surgeons of Ontario, 1998 CanLII 19444 at paras. 36-38, the court in Bannis went on to emphasize that premature applications for judicial review are generally discouraged since it is preferable to allow the administrative proceedings to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion absent some exceptional or extraordinary circumstances.
. Lentini v. Belleville Police Services Board

In Lentini v. Belleville Police Services Board (Div Ct, 2021) the Divisional Court held that a judicial review application of an interlocutory order was premature where the unfairness alleged did not effect the ongoing primary proceeding:
[4] Judicial review is a discretionary remedy, and courts are reluctant to intervene, through judicial review, in the course of an ongoing administrative proceeding, absent exceptional circumstances (Ackerman v. Ontario Provincial Police, 2010 ONSC 910 (Div. Ct.) at paras. 18-19; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 68). Intervention to review interlocutory decisions or to review decisions when there are adequate alternative remedies for review that have not been exhausted can cause delay and fragmentation in the administrative process.

[5] Here, as in Ackerman, the decision to extend the time for the delivery of a notice of hearing is interlocutory. It does not determine the issues on the merits. If the applicant seeks to argue that he has been prejudiced by delay, he can raise that before the hearing officer.

[6] The applicant argues that he has been denied procedural fairness because the Board’s reasons are inadequate, and therefore there are exceptional circumstances here that justify this application for judicial review. We disagree. This is not a case where the allegations of procedural fairness relate to the fairness of the ongoing disciplinary hearing. Were that the case, a court might exercise its discretion to hear the application because the hearing process is fatally flawed.
. Pan v. College of Physicians and Surgeons of Ontario

In Pan v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court reviewed the law of prematurity in a judicial review context:
[19] In the absence of exceptional circumstances, the Divisional Court will not hear an application for judicial review until the proceedings before an administrative tribunal are completed: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 69; Ontario College of Arts v. Ontario (Human Rights Commission) (1993), 1993 CanLII 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.); and Rew v. Association of Professional Engineers of Ontario (Discipline Committee), 2016 ONSC 4043 (Div. Ct.). In Rew, this Court explained that it “is the strong policy of this court to discourage fragmentation of the administrative process and prevent the piecemeal litigation of tribunal proceedings by the bringing of applications for judicial review before the completion of hearings. Such piecemeal litigation undermines the deference we pay to administrative bodies and is both costly and inefficient.”

[20] The court has also taken a very restrictive approach to the exceptional circumstances that justify judicial interference before the completion of proceedings before an administrative tribunal. As held in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, “[c]oncerns 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”.

[21] In the context of a motion for a stay of administrative proceedings pending the hearing of an application for judicial review, such as here, the Divisional Court has previously found that prematurity can form the basis for a finding that there is no serious issue to be tried; see, for example, Rew, at paras. 19-20; Spence v. University of Toronto, 2017 ONSC 3803 (Div. Ct.), at para. 15; and Talarico v. The Law Society of Upper Canada, 2012 ONSC 2493 (Div. Ct.), at para. 9.
. David v. Law Society of Ontario

In David v. Law Society of Ontario (Div Ct, 2021) the Divisional Court considered prematurity in a judicial review application:
[14] It is well established that, absent exceptional circumstances, the court will not interfere with an administrative process until it has run its course. To do otherwise would unnecessarily fragment the proceedings and cause delay: Landry v. Law Society of Upper Canada, 2011 CanLII 99902 (Div. Ct.), at paras. 15-19. As held in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at para. 33, exceptional circumstances are very narrow and do not even include “[c]oncerns 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 … as long as that process allows the issues to be raised and an effective remedy to be granted”.
. Romandale Farms Limited v. The Corporation of the City of Markham

In Romandale Farms Limited v. The Corporation of the City of Markham (Div Ct, 2021) the Divisional Court considered prematurity in a judicial review application:
[25] The general rule is, absent exceptional circumstances, parties who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process. Put differently, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are complete or until the available, effective remedies are exhausted: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at paras. 30-32. As Stratas J.A. observed in C.B. Powell, at para. 32, the principle of non-judicial interference with administrative processes prevents fragmentation of the process and piecemeal court proceedings. It is only at the end of the administrative process that a reviewing court will have all of the administrative decision-maker’s findings.

...

[34] Because I would dismiss the application for judicial review on the basis that it is premature, I need not address the remaining issues raised by the parties, with one exception. As part of its submission that the alleged decisions are non-justiciable, the City advanced the argument that there was excessive delay in bringing the application. In my view, this argument cannot co-exist, now or in the future, with my finding that the present application for judicial review is premature.
. Bell Technical Solutions v. Unifor, Local 1996-O

In Bell Technical Solutions v. Unifor, Local 1996-O (Div Ct, 2021) the Divisional Court considers, and dismisses, a novel argument on an exception to the prematurity principle that prohibits appeal or judicial review of interlocutory tribunal decisions:
[8] In the administrative law context, the courts, and this court in particular, have consistently applied the doctrine of prematurity, both in appeals and applications for judicial review, and refused to review preliminary decisions of administrative tribunals in order to prevent fragmentation of the administrative process and delay absent exceptional circumstances.

[9] The applicant argues that this application is exceptional because it deals with what it calls “a true issue of jurisdiction involving the jurisdictional line between two independent tribunals that is not dependent upon the evidence.” While judicial support for this approach exists, it has been overtaken by more recent jurisprudence. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 67, the Court of Appeal adopted the view of Stratas J.A. in C.B. Powell Ltd. V. Canada (Border Services Agency), 2010 FCA 61, that the use of the label “jurisdiction” to justify judicial interference with ongoing administrative decision-making processes is no longer appropriate. The Court further stated that even a true question of jurisdiction is not, of itself, an exceptional circumstance justifying judicial review before judicial proceedings are completed.

[10] Counsel for the applicant argued that the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 overtakes Volochay by implication. At para. 63 of Vavilov, the Court stated that the rule of law requires that the correctness standard be applied in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies. This, she says, creates an exception to the usual practice of dismissing premature applications for judicial review. Even assuming that correctness is the standard of review on this issue in this case, a question we do not reach, I do not agree. First, this statement in Vavilov was nothing new. The same was said in Dunsmuir v. New Brunswick, 2008 SCC 9, and several earlier decisions of the Supreme Court of Canada. And second, the argument conflates the need for a consistent understanding of the boundary between administrative decision makers provided by review on the standard of correctness, and the asserted need to fragment administrative proceedings in order to have an early determination of that question. There is no such need.

[11] Further, there is no reason to apply the doctrine of prematurity differently on review of administrative decisions on a correctness standard, typically in statutory appeals from administrative decisions, than on review on a reasonableness standard. The jurisprudence of this court is clear on the issue. For a recent example, see Coughlin v. Ontario Disability Program (Director), 2021 ONSC 1236 at para. 8.

[12] We see no other exceptional circumstance in this case that would justify proceeding with a judicial review application in this matter prior to the completion of the arbitration. On the contrary, the fact that the preliminary award dealt only with one of the three preliminary issues raised by the applicant, and even then did not finally decide all aspects of that issue, highlights the risk of fragmented proceedings if we were to decide the issue raised on this application now, and strongly militates against our doing so.
. Lin v. Canada (Public Safety and Emergency Preparedness)

In Lin v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2021) the Federal Court of Appeal set out law on prematurity in a judicial review context:
[5] The general rule is that judicial review should not be brought until all available and adequate administrative recourses are pursued: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332; Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 84; Dugré v. Canada (Attorney General), 2021 FCA 8; and in the immigration context, see Sidhu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 260, 19 Imm. L.R. (3d) 113, cited with approval in Somodi v. Canada (Citizenship and Immigration), 2009 FCA 288, [2010] 4 F.C.R. 26 at para. 19. Buttressing this is the prohibition in para. 72(2)(a) of the Immigration and Refugee Protection Act that forbids judicial review until all administrative appeals are exhausted.

[6] The general rule will not apply where there are exceptional circumstances. This is a "“very rare”" exception set at a high threshold akin to the threshold for prohibition: C.B. Powell at paras. 33; Dugré at paras. 35-36; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, [2015] 4 F.C.R. 467 at para. 33, rev’d on a different point, 2016 SCC 29, [2016] 1 S.C.R. 770. The threshold makes the bar as close to absolute as possible so that judicial reviews do not disrupt the orderly and efficient course of administrative proceedings: C.B. Powell at para. 32; Dugré at para. 37. As well, it must be remembered that legislators have entrusted the merits of decision-making to administrators, not the courts, and so, absent exceptional circumstances or legislation providing to the contrary, reviewing courts should not interfere until the administrators have completed their tasks: C.B. Powell at para. 32. Here, the appellants do not argue that they meet the high threshold, nor on this record could they do so. The appellants in file A-279-19 point to the importance of the issues they raise and issues of jurisdiction and procedural fairness, but, as C.B. Powell tells us, these alone do not constitute exceptional circumstances.



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