The Ontario Superior Court of Justice reasserts that save for rare and exceptional cases, judicial reviews will be rejected as premature when brought in the middle of administrative proceedings

Ontario Superior Court of Justice dismisses judicial review as premature, finding exceptional circumstances did not exist to warrant early intervention of the courts even though the issue of prematurity of the application was not raised by the parties at the hearing.

Administrative law – Decisions reviewed – Arbitration Board – Judicial review application – Premature – Interlocutory decisions – Labour law – Arbitration – Human rights complaint

Sudbury and District Health Unit v. Ontario Nurses’ Assn., [2023] O.J. No. 2454, 2023 ONSC 2419, Ontario Superior Court of Justice, May 31, 2023, N.L. Backhouse, H.J. Williams and T. Nieckarz JJ.

The applicant, Sudbury and District Health Unit (the “Applicant”), applied for judicial review of a grievance arbitration decision.

At the arbitration, the grievor raised two challenges: (1) an individual grievance that she was discriminated against by the Vaccination Policy on the basis of creed; and (2) a policy grievance that the Vaccination Policy is unreasonable. The parties agreed to bifurcate the issues and deal first with whether or not the grievor was prima facie discriminated against on the basis of creed. After a hearing, the Arbitrator rendered a decision determining that the Applicant had engaged in prima facie discrimination when it denied the grievor’s request for an exemption from the Applicant’s COVID-19 Vaccination Policy which required the grievor to be vaccinated (the “Decision”).

The following issues remained outstanding at the arbitration: (1) whether the Applicant could have accommodated the grievor without undue hardship; and (2) if so, what remedy ought to be ordered; or (3) if the Applicant could not have accommodated the grievor, whether the vaccination policy itself was reasonable. Nevertheless, the Applicant sought judicial review of the Arbitrator’s decision, requesting an order quashing and setting aside the Decision and an order that the Applicant did not prima facie discriminate against the grievor.

The court dismissed the application for judicial review as premature. The court reviewed the case law and found that only rarely in exceptional or extraordinary circumstances will the court interfere with a proceeding midstream, none of which applied in this case. The bar is high to convince a court to exercise its discretion to judicially review an interlocutory decision and has only occurred in situations where there is real unfairness through a denial of natural justice and/or where a remedy later would not cure the unfairness. As there was no suggestion in this case that the process is deeply flawed or that a breach of natural justice would occur if the judicial review was not heard, it was not fit for interlocutory judicial review.

The court found that while interlocutory judicial review has been permitted where a decision finally disposes of a substantive right, the Arbitrator’s decision was not dispositive of a substantive right. The Arbitrator merely determined that the grievor met the initial onus of proving prima facie discrimination. It did not find that the grievor was discriminated against since it remained to be determined that the Applicant could not have accommodated the grievor short of undue hardship. Moreover, there was no need for early intervention because the rights at issue could be remedied in the event a future review application found the Decision unreasonable or incorrect.

The court was not persuaded by the Applicant that because the hearing was bifurcated at a natural break between separate phases of the hearing, the typical concerns with respect to fragmentation and delay were not present. Even where the only remaining issue is remedy, courts are loathe to intervene. Here, multiple issues remained to be determined on the merits and the court found there is a real risk of fragmentation and piecemeal litigation if the court proceeded with the application at this time.

The court further found that averting costly and complex litigation that may prove otherwise unnecessary, and consideration of broader implications for similar cases involving COVID-19 vaccination polices or the strength of the case do not raise exceptional circumstances that would lead it to hear a judicial review application on an interlocutory decision.

This case was digested by Renee Gagnon, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Renee Gagnon at [email protected].

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