Making sure you are exhausted before seeking judicial review

Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, involves a masseur, (alleged) extra-marital sex, (alleged) intimidation of a witness and (allegedly) a vengeful government agency. A story interesting enough, then, to survive even the following injection of administrative law principles.

A former patient of the applicant’s made a complaint against him, on the basis that they had entered into a sexual relationship while she was a patient. A serious allegation which, if proven, would result in a loss of a massage therapist’s licence to practice. The complaint was later withdrawn, but the College suspected intimidation on the part of the applicant, referred the complaint to its Executive Committee (first decision) and ultimately decided to commence a full investigation of the applicant’s practice (second decision).

However, the College never gave the applicant notice of the substance of the allegations against him. He was told there was a complaint, but no more than that. Both the judge at first instance and the Ontario Court of Appeal agreed that this was a flagrant breach of the applicant’s right to procedural fairness.

The problem for the applicant was that his right to procedural fairness was breached by the Complaints Committee of the College. Had he so wished, the applicant could have requested an internal review. Indeed, he initially requested such a review, but later withdrew his request and sought judicial review instead.

At first instance, Ratushny J. held that the procedural failures of the Complaints Committee rendered the first and second decisions null and void. Accordingly, she quashed them. To the suggestion that the applicant should have pursued an internal appeal before seeking judicial review, Rathushny J. essentially held that the decisions were nullities and accordingly, there was nothing to review.

The Ontario Court of Appeal reversed.

Although the logic of Rathushny J.’s position is appealing, it is not good law. Breaches of procedural fairness can be ‘cured’ by an internal appeal. The question for the reviewing court is not the metaphysical one of whether a decision continues to exist once it has been quashed (see paras. 61-67), but whether there is an adequate alternative remedy available to the individual: “internal review processes [must] be exhausted before the court intervenes” (at para. 69). 

Here, the review board had the power to review the applicant’s complaints about the absence of fair procedures and to order the Complaints Committee to reconsider the complaint having given the applicant proper notice and allowed him to make submissions (see paras. 73-76).

It is important to be clear about the basis of the Court of Appeal’s decision. Judicial review remedies are discretionary. One reason for refusing to grant a remedy is the availability of an adequate alternative remedy, such as an internal appeal or review. So, in some cases, even though an applicant can establish unfairness or unlawfulness, judicial review remedies might nonetheless not be granted.

Unfortunately, the issue of discretion to refuse a remedy is very often confused by arguments about nullities and jurisdictional errors.

Volochay is an example. There was some discussion at first instance and on appeal about “true questions of jurisdiction” and whether the College’s decisions here fell into that category. It is wrong to borrow that concept from substantive review (a challenge to the substance of a decision) and use it in the context of procedural review (a challenge to the procedures employed by the administrative actor). The concept of “true questions of jurisdiction” assists only in determining the appropriate standard of review of a decision. But here, the standard was clearly that of correctness: no one disagreed that it was for the reviewing court to determine whether the applicant had been fairly treated.

Importing the concept of “true questions of jurisdiction” into a case where the real issue is the adequacy of the alternative remedy available to the applicant is liable to lead to confusion. Whether the error is jurisdictional or not is irrelevant: the issue is whether the reviewing court should refuse to exercise its discretion to grant relief to the applicant even though an unlawful decision has been taken. There is no need for philosophical investigations into nullities and jurisdictional errors.

And the case seemed so interesting to begin with! Are you exhausted?

This content has been updated on June 11, 2014 at 09:47.