Presumptive Prematurity

Courts are more frequently requiring parties to complete the administrative process before seeking a judicial remedy. A prime example is found in Gill v. College of Physicians and Surgeons, 2021 ONSC 7549 (CanLII), In that case a physician faced several complaints and investigations in respect of statements made related to the pandemic. Some complaints and the Registrar’s investigation resulted in a caution. Other complaints were dismissed. Several of the complaints were appealed to an independent tribunal by both the practitioner and a complainant. The decision on the Registrar’s investigation did not have an internal appeal option. The practitioner sought judicial review of all of the decisions seeking a declaration that attempted to regulate the practitioner’s comments, claiming it was contrary to their freedom of expression rights contained in the Canadian Charter of Rights and Freedoms.

The regulator challenged the judicial review on the complaints matters on the basis that the application was premature. Ordinarily parties wait to raise the prematurity issue at the application hearing on the merits to avoid having to deal with the issue twice. However, in this case the regulator brought a motion in advance.

The Court found that the judicial review of the complaints matter was premature. The Court commented that the issues should be addressed by the administrative tribunal first to avoid fragmenting and even duplicating the proceedings. Since complainants were not parties to the application for judicial review, they might be excluded from the process in which they would participate at the tribunal. The fact that the issues included an argument based on the Charter and the practitioner sought a remedy not available elsewhere (i.e., a declaration) was not an exceptional circumstance justifying Court intervention. Nor was the fact that there would have to be a judicial review application in any event to deal with the decision flowing from the Registrar’s investigation.

This decision emphasizes yet again the Court’s strong preference that administrative proceedings be allowed to finish before going to the courts.

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