Docket: A-512-15
Citation: 2016 FCA 35
Coram: NADON
J.A.
STRATAS J.A.
RYER J.A.
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BETWEEN:
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MAGDALENA
FORNER
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Applicant
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and
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THE
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
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Respondent
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REASONS
FOR ORDER
STRATAS J.A.
[1]
Before the Court is an application for judicial
review. The respondent moves to strike it out on the ground that it is premature.
[2]
The applicant has not responded to the motion.
However, motions such as this are not granted by default. The Court must be
satisfied that the application should be struck out on the basis of the
material before it and the applicable law.
A.
Background and the application for judicial
review
[3]
The applicant has submitted a complaint to the
Public Service Labour Relations and Employment Board. She alleges that her
former bargaining agent, the respondent, breached its duty to represent her
fairly.
[4]
In response, the Board asked the applicant to
provide more particulars concerning her complaint. It asked her to fill out a “Request for Particulars” form. The applicant
responded by endorsing “see attached documents”
at various places on the form. She submitted the form along with a box of
documents.
[5]
The Board decided to reject her submission and
returned the box of documents to her. It asked her again to submit the
particulars concerning her complaint using the “Request
for Particulars” form.
[6]
Rather than complying with the Board’s decision,
the applicant immediately launched this application for judicial review,
seeking to set it aside.
B.
The respondent’s submissions on the motion to
strike
[7]
The respondent submits that we should strike the
application for judicial review on the ground that it is premature. It relies
upon our jurisprudence suggesting that applications for judicial review of
interlocutory decisions by administrators will often be struck. The respondent
adds that although motions to strike applications should rarely be entertained
(citing David Bull Laboratories (Can.) Inc. v. Pharmacia Inc., [1995] 1
F.C. 588 (C.A.)), the motion to strike should be granted in the circumstances of
this case.
C.
Analysis
[8]
I agree with the respondent’s submissions and
would strike the application for judicial review.
[9]
Currently, the leading case in this Court on
motions to strike applications for judicial review is Canada (National
Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014]
2 F.C.R. 557. At paragraphs 47-48, this Court set out the test for striking an
application for judicial review:
[47] The Court will
strike a notice of application for judicial review only where it is “so clearly
improper as to be bereft of any possibility of success”: David Bull Laboratories (Canada)
Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at page 600 (C.A.). There must be a “show stopper”
or a “knockout punch” – an obvious, fatal flaw striking at the root of this
Court’s power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117 at paragraph 7; Donaldson v. Western Grain Storage
By-Products, 2012 FCA
286 at paragraph 6; cf. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.
[48] There are two justifications for such
a high threshold. First, the Federal Courts’ jurisdiction to strike a notice of
application is founded not in the Rules but in the Courts’ plenary jurisdiction
to restrain the misuse or abuse of courts’ processes: David Bull, supra at page
600; Canada (National
Revenue) v. RBC Life Insurance Company, 2013 FCA 50. Second, applications for judicial
review must be brought quickly and must proceed “without delay” and “in a
summary way”: Federal Courts Act, [R.S.C. 1985, c. F-7], subsection
18.1(2) and section 18.2. An unmeritorious motion – one that raises matters
that should be advanced at the hearing on the merits – frustrates that
objective.
[10]
In a decision
postdating JP Morgan, the Supreme Court has emphasized the need for
modern litigation to proceed to resolution faster and more simply: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1
S.C.R. 87. This
underscores the important role that motions to strike can play in removing
clearly unmeritorious cases from the court system. This case is a good example.
[11]
This threshold for
a motion to strike is met here. The applicant challenges a decision made by the
Board right at the outset of its administrative proceedings. Its administrative
proceedings are far from completed. The respondent’s objection that the
application for judicial review is premature is, in the circumstances of this
case, a “show stopper.” In these circumstances, it is clear
that this Court cannot entertain the application for judicial review.
[12]
Applications for
judicial review of decisions made at the outset of administrative proceedings or
during administrative proceedings normally do not lie.
[13]
The general rule
is that applications for judicial review can be brought only after the
administrative decision-maker has made its final decision. At that time,
administrative decisions made at the outset of administrative proceedings or
during administrative proceedings can be the subject of challenge along with
the final decision.
[14]
The relevant law
on point and the rationale for it is as follows:
[30] The normal rule is that parties can proceed to the court
system only after all adequate remedial recourses in the administrative process
have been exhausted. The importance of this rule in Canadian administrative law
is well-demonstrated by the large number of decisions of the Supreme Court of
Canada on point: [citations omitted]
[31] Administrative law judgments and textbooks describe this
rule in many ways: the doctrine of exhaustion, the doctrine of adequate
alternative remedies, the doctrine against fragmentation or bifurcation of
administrative proceedings, the rule against interlocutory judicial reviews and
the objection against premature judicial reviews. All of these express the same
concept: absent exceptional circumstances, parties cannot proceed to the court
system until the administrative process has run its course. This means that,
absent exceptional circumstances, those who are dissatisfied with some matter
arising in the ongoing administrative process must pursue all effective
remedies that are available within that process; only when the administrative
process has finished or when the administrative process affords no effective
remedy can they proceed to court. 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.
[32] 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…
(Canada (Border Services Agency) v. C.B.
Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332 at paragraphs 30-32; see
also Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, 467 N.R.
201 at paragraphs 30-32.)
[15]
As C.B. Powell
recognizes (at paragraph 33), there are exceptional circumstances where this
Court will entertain an application for judicial review of an administrative
decision made at the outset of administrative proceedings or during
administrative proceedings: for a more complete explanation of what qualifies
as exceptional circumstances, see Wilson, above at paragraph 33. Many of these exceptional circumstances
mirror those where prohibition lies.
[16]
On the record
before us in this case, the prematurity objection is made out and there are no
exceptional circumstances warranting the hearing of this application for
judicial review at this time.
[17]
After the Board
has finally decided upon the applicant’s complaint, she may launch an
application for judicial review advancing the grounds she raises in this
application and any other relevant, admissible grounds.
D.
Proposed
disposition
[18]
Accordingly, I
would grant the motion and strike out the application for judicial review. The
applicant does not seek its costs and so none shall be granted.
“David Stratas”
“I agree
M. Nadon J.A.”
“I agree
C. Michael Ryer J.A.”
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