Exceptional Circumstances

Courts are extremely hesitant to consider a judicial review application while an administrative process is ongoing. Such applications will generally be dismissed or stayed as premature to allow the existing proceedings to be completed. In addition to not delaying administrative justice, awaiting the outcome below enables the Court to have a full evidentiary record and to understand the thinking of the administrative body. In addition, the application will sometimes become moot as the original concern may no longer matter by the time the administrative process is complete.

However, Courts will hear a judicial review in “exceptional circumstances”. The criteria for what constitute exceptional circumstances are rarely defined. The decision of Lamarche v British Columbia (Securities Commission), 2024 BCSC 1137 (CanLII), provides some assistance. There an individual facing proceedings for unregistered trading brought a civil action for a declaration that a summons to a third party (Shaw communications) was unconstitutional and violated his privacy rights, in part because they might result in disclosure of solicitor and client communications.

The Court held that the civil action (just like an application for judicial review) could be premature as the underlying administrative proceedings were ongoing. The fact that constitutional issues were raised was not, by itself, exceptional. Otherwise, the prematurity principle could be circumvented simply by including a constitutional argument in pleadings. The Court discussed the criteria for whether exceptional circumstances are present.

  1. Statutory Context. The more specialized the tribunal and the greater its scope to deal with legal issues within its own process, the more likely a challenge will be seen premature.
  2. Strength of the Case. The Court noted that the applicant had a strong case in that the communications had already been obtained without protocols in place to protect privileged information. However, the communications had not yet been accessed by the regulator and the applicant could still raise the issue with the regulator.
  3. Fragmentation of Proceedings. The Court accepted the regulator’s assertion that the action constitutes a pre-emptive collateral attack and would lead to a multiplicity of proceedings.
  4. Waste of Resources and Delay. The Court said that: “The continuance of a separate process focused on the same or similar issues in this Court would constitute a waste of judicial resources.”
  5. Hardship or Prejudice. The administrative body could deal effectively with the concern. The fact that it would not be able to issue a formal declaration of unconstitutionality of the underlying provision did not create significant prejudice to the individual.

The Court stayed the proceeding. This decision might assist regulators which raise prematurity arguments when registrants attempt to challenge administrative proceedings that have not yet been completed.

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