Regulators have seen this scenario many times. A practitioner is referred to discipline. The practitioner brings an application for judicial review to challenge the referral and requests that the hearing be delayed until the application is determined. The resulting delay is usually years rather than months. In Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807, Justice of the Peace Foulds was referred to a misconduct hearing for allegedly trying to interfere with a criminal proceeding involving the former boyfriend of Mr. Foulds’ then girlfriend. Mr. Foulds filed an application for judicial review.
Rather than awaiting its outcome, the tribunal scheduled the misconduct hearing. Mr. Foulds brought a motion to stay the hearing until the judicial review application was heard. The regulator brought a cross-motion to dismiss the judicial review application as premature. Mr. Foulds disputed the ability of a single motions judge to dismiss the application for prematurity.
The Court held that there is now a line of cases permitting the dismissal by a single motions judge of an application for judicial review on the basis of prematurity in clear cases. The Court held that this was a clear case where all of Mr. Foulds’ concerns could be brought to the tribunal hearing the misconduct case. The Court also noted that Mr. Foulds would have an opportunity to challenge the final decision of the tribunal by way of judicial review. The Court dismissed the application for judicial review.
Many regulators are hesitant to proceed with their hearings in the face of a judicial review application for fear of demonstrating disrespect to the Court. In this case the Court took no offence.