COURT OF APPEAL FOR ONTARIO

CITATION: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541

DATE: 20120820

DOCKET: C54339

O’Connor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

Oleg Volochay

Applicant (Respondent)

and

College of Massage Therapists of Ontario

Respondent (Appellant)

Peter J. Osborne and Ian MacLeod, for the appellant

Robert C. Morrow, for the respondent

Heard: December 16, 2011

On appeal from the judgment of Justice Lynn D. Ratushny of the Divisional Court, dated March 29, 2011, with reasons reported at 2011 ONSC 2225.

Laskin J.A.:

A.           introduction

[1]          The overriding question on this appeal is whether the application judge was wrong in principle to grant judicial review and quash two decisions of the College’s investigatory bodies.

[2]          Oleg Volochay is a massage therapist and a member of the College of Massage Therapists of Ontario.  In July 2008, a former female patient complained to the Registrar of the College that she and Volochay had engaged in sexual intercourse while she was a patient – conduct that is prohibited by the Health Professions Procedural Code and attracts a penalty of loss of certificate to practice for a minimum of five years. 

[3]          The College’s Complaints Committee investigated the complaint.  However, in breach of the requirements of the Code, Volochay was not given notice of the complaint or an opportunity to make written submissions to the Committee.  In April 2009, the Complaints Committee decided to refer the matter to the College’s Executive Committee to consider a full investigation of Volochay’s practice.  It made its decision without ever telling Volochay the substance of the allegations against him or giving him a chance to refute the allegations. 

[4]          In November 2010, 19 months after the decision of the Complaints Committee, its successor body, the Inquiries, Complaints and Report Committee (ICRC) appointed an investigator to inquire into and examine Volochay’s practice. 

[5]          Ratushny J. granted Volochay’s judicial review application and quashed the initial decision of the Complaints Committee on the ground that the College violated its “statutorily mandated procedures” and “did not comply with the most basic principles of natural justice and procedural fairness”.  She also quashed the later decision to appoint an investigator on the ground that it was “simply a ratification” of the initial decision.  She concluded that the issue before her was a “true question of jurisdiction” and that the College had violated its statutory authority to proceed, rendering its proceeding on the complaint a nullity.

[6]          On its appeal, the College contends that the court ought not to have intervened before the administrative proceedings under the Code had run their course.  In support of this contention, the College advances three submissions:

(1)         The application judge erred in holding that the College’s  failure to give Volochay notice of the complaint raised a true question of jurisdiction;

(2)         No exceptional circumstances justified judicial review before the College proceedings were completed, especially because Volochay had an adequate alternative remedy, a review before the Health Professions Appeal and Review Board (HPARB), which he declined to exercise; and

(3)         Volochay’s “egregious conduct” after the complaint was made disentitled him to relief.

[7]          Before outlining the facts that put these submissions in context, I will set out the regulatory framework that governs this case. 

B.           Regulatory framework

[8]          The College of Massage Therapists is a self-regulating body for the practice of massage therapy in Ontario.  Like other health professions in Ontario, it is subject to the Regulated Health Professions Act, 1991, S.O, 1991, c. 18, and the Health Professions Procedural Code, which is Schedule 2 to the Act.

[9]          The Code establishes the procedural framework for registration, complaints and discipline.[1]  Section 3(1) sets out the objects of the Code, one of which is to regulate the practice of the profession and to govern its members in accordance with the Act and the Code.  Section 3(2) stipulates that “[i]n carrying out it objects, the College has a duty to serve and protect the public interest.” 

Sexual Intercourse With a Patient is Professional Misconduct

[10]       A member who sexually abuses a patient commits an act of professional misconduct.  Sexual abuse includes sexual intercourse, even if consensual, between a patient and a member.  The penalty for sexual abuse involving intercourse is revocation of the member’s certificate to practice.  The member cannot apply for reinstatement for five years: see Code ss. 1(3), 51(5) and 72(3); and Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, 98 O.R. (3d) 561.

Complaints by Members of the Public

[11]       The Complaints Committee, now the ICRC, has the statutory authority to investigate and take action on a complaint.  The Committee performs a screening function: it determines whether the complaint should go forward to a discipline hearing or for other action.  Sections 25(1) and (2) of the Code provide:

25(1) A complaint filed with the Registrar regarding the conduct or actions of a member shall be investigated by a panel selected by the chair of the Complaints Committee from among the members of the Committee.

(2)  A panel shall be composed of at least three persons, at least one of whom shall be a person appointed to the Council by the Lieutenant Governor in Council.

[12]       Section 25(5) is a key provision on this appeal.  It states:

The Registrar shall give the member who is the subject of a complaint notice of the complaint and of the provisions of subsection 26(1).

Volochay was not given notice of the complaint, as required by this provision.

[13]       The purpose of the notice provision is to give the member the right to make written submissions to the Committee.  Section 26(1) states:

A member who is the subject of a complaint may make written submissions to the panel within thirty days after receiving notice under subsection 25(5).

Volochay was not afforded the right to make submissions to the Complaints Committee. 

[14]       The powers of a Committee investigating a complaint are set out in s. 26(2).  In exercising these powers the Committee must consider the submissions of the member.  Section 26(2) states:

26(2) A panel, after investigating a complaint regarding the conduct or actions of a member, considering the submissions of the member and considering or making reasonable efforts to consider all records and documents it considers relevant to the complaint, may do any one or more of the following:

1. Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint.

2. Refer the member to the Executive Committee for incapacity proceedings.

3. Require the member to appear before the panel or another panel of the Complaints Committee to be cautioned.

4. Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws

In this case, without any submissions from Volochay, the Committee acted under s. 26(2)4: it referred the matter to the Executive Committee of the College to consider a full investigation of Volochay’s practice.  The application judge quashed this decision.

[15]       Under s. 26(5) the Committee, after considering the written submissions of the complainant and the member, shall take no action on a complaint where it is satisfied that the complaint is frivolous, vexatious, made in bad faith or otherwise an abuse of process.

[16]       Section 28(1) provides for the timely disposal of complaints.  The Committee is required to dispose of a complaint within 120 days after it has been filed (although this time may be extended).  In this case, the Committee took nine months to dispose of the complaint against Volochay.  However, the length of time the Committee took to deal with the complaint is not in issue on this appeal. 

Section 75 Investigations

[17]       Section 75 of the Code provides for three circumstances in which the Registrar can appoint an investigator to determine whether a member has committed an act of professional misconduct:

75. The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Executive Committee approves of the appointment;

(b) the Executive Committee has received a report from the Quality Assurance Committee with respect to the member and has requested the Registrar to conduct an investigation; or

(c) the Complaints Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation.

[18]       In this case, in September 2008, at the request of the Complaints Committee, the Registrar appointed an investigator under s. 75(c) of the Code.  In November 2010, an investigator was appointed under s. 75(a) of the Code to examine Volochay’s practice.  The application judge also quashed the November 2010 decision appointing an investigator. 

Reviews and Appeals

[19]       Under s. 29(2) of the Code, Volochay had the right to ask the HPARB to review the Complaints Committee’s decision to refer the matter to the Executive Committee. 

29(2) The complainant or the member who is the subject of the complaint may request the Board to review a decision of a panel of the Complaints Committee unless the decision was,

(a) to refer an allegation of professional misconduct or incompetence to the Discipline Committee; or

(b) to refer the member to the Executive Committee for incapacity proceedings.

[20]       Volochay asked for a review and then withdrew his request.  Section 30(1) states:

30(1) The Board shall not review a decision if the party who requested the review withdraws the request and the other party consents.

[21]       Section 33(1) specifies that the HPARB may consider both the adequacy of the investigation and the reasonableness of the decision. 

33(1) In a review, the Board shall consider either or both of,

(a) the adequacy of the investigation conducted; or

(b) the reasonableness of the decision.

[22]       Section 35(1) sets out the powers of the HPARB:

After conducting a review of a decision, the Board may do any one or more of the following:

1. Confirm all or part of the decision.

2. Make recommendations the Board considers appropriate to the Complaints Committee.

3. Require the Complaints Committee to do anything the Committee or a panel may do under the health profession Act and this Code except to request the Registrar to conduct an investigation.

[23]       Review decisions of the HPARB may be appealed to the Divisional Court on a question of law or fact.  Section 70 of the Code states:

70(1) A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practise Committee, other than a hearing of an application under subsection 72 (1), may appeal from the decision of the Board or panel to the Divisional Court.

(2)  An appeal under subsection (1) may be made on questions of law or fact or both.

(3)  In an appeal under subsection (1), the Court has all the powers of the panel that dealt with the matter and, in an appeal from the Board, the Court also has all the powers of the Board.

C.           additional relevant background

(a)         The Respondent Oleg Volochay

[24]       The respondent has been a registered massage therapist and a member of the College since December 2005.  He practises in Ottawa.  He is married and has one child, a son.

(b)         The Complaint

[25]       S.D. was one of Volochay’s patients.  She received massage therapy treatments from him for nearly four years – from September 2004 to June 2008. 

[26]       In July 2008, she sent a written complaint to the College.  She alleged that for nearly a year – between August 2005 and July 2006 – she and Volochay had a sexual relationship, which included consensual sexual intercourse.  After the sexual relationship, S.D. continued to receive massage therapy treatments from Volochay for nearly two years. 

[27]       In his affidavit sworn in support of his judicial review application, Volochay denied S.D.’s allegations of sexual impropriety.  He said that her complaint was “both false and defamatory.

(c)         The Complaints Committee’s Investigation and S.D.’s Withdrawal of her Complaint

[28]       The Complaints Committee investigated the complaint.  It asked the Registrar to appoint an investigator under s. 75(c) of the Code.  The Registrar did so in early September 2008.

[29]       The investigator met with S.D.  She also advised Volochay that a complaint had been made against him, but did not disclose either the identity of the complainant or the nature of the allegations.  On September 21, 2008, S.D. sent an email to the College withdrawing her complaint against Volochay.  She said that “I do not believe Mr. Volochay should lose his licence or be penalized because of our personal relationship.  His treatments as a massage therapist were always professional and he never behaved inappropriately.”  The College, however, claims that Volochay pressured S.D. to withdraw her complaint. 

[30]       Nonetheless, because S.D. had withdrawn her complaint, the College investigator was instructed not to serve Volochay with notice of the complaint.  And, in fact, Volochay never was served. Nor did the College ever tell him the nature of the complaint.  Indeed, in a reporting memorandum, a College investigator said that Volochay “was not aware of the College’s ongoing investigation and that what was shared between S.D. and the College would remain confidential until the very end”.

[31]       On September 23, 2008, the College wrote to Volochay to advise him that the complainant wished to withdraw the complaint.  The letter also said that “a panel of the Complaints Committee will need to review this information to confirm the withdrawal of the complaint.”  This was the last correspondence that Volochay received from the College until the decision of the Complaints Committee in April 2009. 

[32]       Meanwhile, at a meeting in early January 2009, S.D. refused to cooperate with the College’s investigator.  And apparently the College has not heard from her since that time.

(d)         The Decision of the Complaints Committee, April 2009

[33]       The Complaints Committee concluded that it retains jurisdiction to investigate a complaint, even when the complaint has been withdrawn.  It determined that the allegations were serious and constituted acts of professional misconduct.  The Committee also expressed concerns about S.D.’s allegation that Volochay had threatened her during the currency of their personal relationship.  The Committee observed that this “additional information provided in the complaint, but not forming part of the allegations, may be suggestive of a pattern of behaviour with serious public interest implications.”

[34]       The Committee concluded its decision as follows:

It is noted that the Registrar with the approval of the Executive Committee can commence an investigation pursuant to Section 75(a) of the Code where information is received by the College which establishes reasonable and probable grounds for the Registrar that a member has committed an act of professional misconduct or may be incompetent.  In this regard, the panel has determined that this matter will be referred to the
Executive Committee for their consideration in terms of a full investigation inquiring into the practice of the member given the seriousness of the allegations involved and the public interest concerns.

[35]       Nowhere in its decision did the Committee advert to its obligation under s. 25(5) of the Code to give Volochay notice of the complaint or to its failure to give him an opportunity to make written submissions to the Committee.

(e)         Volochay Asks for and then Withdraws his Request for a Review Before the HPARB

[36]       Volochay received a copy of the decision of the Complaints Committee in late April 2009.  In May 2009, his lawyer (not Mr. Morrow) requested a review of the decision of the Complaints Committee.  This review was scheduled for November 19, 2010.  However, in August 2010, his lawyer gave the HPARB notice that Volochay was withdrawing his request for a review “without prejudice” to his right to contest or dispute the complaint.  The College did not object to Volochay’s withdrawal of his request.

[37]       In September 2010, Mr. Morrow wrote the College asking that S.D.’s complaint be dismissed. 

(f)          The Decision to Appoint an Investigator Under Section 75(a) of the Code

[38]       The College refused to dismiss the complaint.  Instead, on November 30, 2010, it wrote Volochay’s counsel to advise him that an investigator had been appointed under s. 75(a) “to inquire into and examine the practice of Mr. Volochay”.  This was the investigation contemplated in the decision of the Complaints Committee 19 months earlier.

(g)         Decision of the Divisional Court

[39]       Volochay sought judicial review and asked for leave under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J-1, to have his application heard before a single judge of the Divisional Court on the ground of urgency.  He asked that both the April 16, 2009 decision of the Complaints Committee and the November 2010 decision appointing an investigator under s, 75(a) of the Code be quashed.  Leave was granted and the application judge quashed both decisions.  She wrote at paras. 33-34:

In addition to violating its statutorily mandated procedures, the respondent did not comply with the most basic of principles of natural justice and procedural fairness during its investigation and before coming to a decision.  It gave the applicant no notice of the allegations and no opportunity to answer and defend them during the investigation process and before the First Decision was made.

The Second Decision is simply a ratification of the First Decision, relying again on an investigation and process that violated the applicant’s right to procedural fairness.

[40]       She observed at para. 31:

While the applicant did receive notice in September 2008 that there was a complaint and then later that it had been withdrawn, the evidence is that he never did receive notice of its subject matter or its specific allegations.  In the respondent’s concern for the complainant and her interests and safety, the applicant’s interests including his right to notice of the complaint and to make written submissions on it appear to have been passed over and forgotten.

[41]       She also rejected, at para. 35, the suggestion that Volochay had notice of the complaint because he had caused S.D. to withdraw it.  

It is no answer to say that the applicant had actual notice of the complaint because he had caused the complainant to withdraw it in September 2008.  The matter of the withdrawal is part of the complainant’s side of the story that the applicant should have had the opportunity to answer as part of the respondent’s investigation.  To attribute notice to him of a fact he denies but has not been given the opportunity to deny cannot be deemed to amount to any notice whatsoever.

[42]       The application judge acknowledged that judicial review is discretionary and “absent exceptional circumstances, administrative proceedings before administrative tribunals should not be fragmented until there is a full record and the administrative proceeding has come to an end” (citation omitted).  However, in her view, the College had acted “without jurisdiction so that its proceedings to date in respect to the complaint are a nullity.”

[43]       She viewed the issue before her as a “true question of jurisdiction.”  The process violated the College’s statutory authority to proceed; it violated the College’s duty to proceed fairly; and it violated Volochay’s right to procedural fairness.  Finally, that Volochay’s right to continue his profession and his employment were at stake, was “fundamental to a consideration of the fairness of the process”.

[44]       In September 2011, a panel of this court granted leave to appeal from the application judge’s decision.

D.           analysis

[45]       As I said at the outset, the question on this appeal is whether the application judge was wrong in principle in exercising her discretion to grant judicial review and quash the College’s decisions of April 2009, and November 2010.  Four points assist to put this question in context.

[46]       First, I agree with the application judge that the College was entitled to continue to investigate S.D.’s complaint even though she had withdrawn it.  The College has a statutory mandate to serve and protect the public interest.  It need not stop an investigation because the complainant no longer wishes to proceed, especially where it believes that a member may have influenced the withdrawal of the complaint.

[47]       That leads to my second point: Having decided to proceed with its investigation, the College could not ignore its statutory obligations and the duty of fairness it owed to Volochay.  But, as the application judge found, that is precisely what the College did. It breached the rules of natural justice and its own statutory obligations when it failed to give Volochay notice of the complaint and an opportunity to make written submissions to the Complaints Committee, before the Committee made its April 2009 decision.

[48]       Adequate notice is a fundamental component of fairness at common law.  It ensures that individuals affected by a decision have sufficient information and a reasonable opportunity to answer the case against them.  Section 25(5) of the Code, which required the Registrar to give Volochay notice of the complaint, codifies this rule of natural justice and statutorily imposes a duty of procedural fairness on the College, even at the investigatory stage of its processes.  That it does so no doubt reflects the potentially serious consequences for a member who is under investigation. 

[49]       Moreover, the College could not avoid its statutory duties by suggesting that Volochay knew what the complaint was about.  He says otherwise, and even if he did know something about it, the College’s duty in s. 25(5) is unqualified.

[50]       Third, the College’s decision in November 2010, to appoint an investigator to inquire into Volochay’s practice was tied to the Complaints Committee’s decision in April 2009.  That is evident from the Complaints Committee’s reasons, which contemplated the appointment of an investigator under s. 75(a) of the Code.  The application judge fairly concluded that the November 2010 decision “effectively ratified” the April 2009 decision.  In oral argument, counsel for the College acknowledged that if the April 2009 decision of the Complaints Committee was quashed, the November 2010 decision appointing an investigator could not survive.

[51]       The record shows that the Registrar also appointed an investigator under s. 75(c) of the Code.  That appointment was made in September 2008 at the request of the Complaints Committee.  The record is unclear when that investigation ended.  However, I think a reasonable conclusion is that it ended when the Complaints Committee rendered its decision in April 2009. 

[52]       The last point is that judicial review is a discretionary remedy.  An appellate court must defer to the exercise of that discretion unless “the conclusion is unreasonable or has been reached on the basis of an irrelevant or extraneous consideration, a wrong principle, or as a result of insufficient or no weight having been given to a relevant consideration” (emphasis added): see Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, per Sopinka J., at para. 112.

[53]       Thus, I return to the question whether the application judge exercised her discretion on a wrong principle when she granted judicial review.  In contending that she did so, the College makes two main points.  First, the application judge erred in principle by characterizing the issue before her as a “true question of jurisdiction.”  And second, she erred in principle by failing to find that Volochay had an adequate alternative remedy – a review before the HPARB – and instead holding that the denial of procedural fairness to Volochay was an exceptional circumstance justifying judicial intervention before the College proceedings were completed. 

(a)         “True Question of Jurisdiction”?

[54]       The application judge concluded that whether the College breached its duty of procedural fairness was a “true question of jurisdiction”, and that the College’s breach rendered its action on the complaint a nullity.  She held that the College “did not have the statutory authority to investigate without according the applicant the right to respond”.  This was an “exceptional circumstance” justifying judicial review even though the proceedings before the College had not been completed.

[55]       The College submits that the application judge erred in characterizing the question as one of jurisdiction and that judicial intervention was not justified on that basis.  I agree with this submission.

[56]       As the application judge acknowledged, the phrase “true question of jurisdiction” comes from the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.  In that case, and those that followed, the Supreme Court reconsidered and, arguably, narrowed the scope of a question of true jurisdiction: see Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; and, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654.  Under this line of authorities, a true question of jurisdiction now refers to whether the tribunal had authority to make the inquiry in the first place: see Dunsmuir, at para. 59.

[57]       Is a question of procedural fairness a true question of jurisdiction in the Dunsmuir sense?  The strongest support for the application judge’s conclusion comes from the powerful dissenting reasons of Dickson J. in Harelkin v. University of Regina, [1979] 2 S.C.R. 561.  There, he characterized a breach of the rules of natural justice as an error going to jurisdiction or closely “akin” to a jurisdictional error.

[58]       However, the prevailing view, reflected in the majority reasons of Beetz J. in Harelkin, and in later cases, is that a question of procedural fairness or natural justice is not a true question of jurisdiction in the narrow sense that phrase is used in Dunsmuir.  Whether a tribunal breached its duty of fairness is not relevant to whether it had authority to begin its inquiry.  A breach of the duty of fairness only arises after the inquiry has lawfully begun.  Though a tribunal that breaches its duty of fairness may be said to have abused or exceeded its jurisdiction, this is not the same thing as having no jurisdiction to even start an inquiry: see for example Toronto Hydro Electric System Ltd. v. Ontario (Energy Board), 2010 ONCA 284, 99 O.R. (3d) 481; Service Employees’ International Union Local No. 333 v. Nipawin District Staff Nurses’ Association, [1975] 1 S.C.R. 382, at p. 389.

[59]       Thus, I do not agree with the application judge’s holding that because the Complaints Committee did not give Volochay notice of the complaint and the right to respond, it did not have the statutory authority to investigate.  Her holding would turn the notice requirement in s. 25(5) of the Code into a pre-condition to the Committee’s jurisdiction.  However, s. 25(5) is simply a statutory codification of an affected party’s right to procedural fairness or natural justice.  It is not a provision that goes to the Committee’s jurisdiction to investigate a complaint.

[60]       Accordingly, the application judge was wrong in principle to characterize the question before her as a “true question of jurisdiction.”  But, more importantly, even if her characterization were correct, it does not follow that early judicial review was justified solely on that basis.

(i)           Jurisdictional defects and early judicial review

[61]       Whether a question is one of “true jurisdiction” is relevant to determining the appropriate standard of review of a tribunal’s decision.  True questions of jurisdiction invite review on a standard of correctness, not reasonableness.  However, characterizing a question as one of true jurisdiction does not determine whether early judicial intervention is warranted. 

[62]       Admittedly, there is case law from this court suggesting that early judicial review is automatically available for jurisdictional defects, even defects arising from a denial of natural justice.  For example, in Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. 483, Finlayson J.A., writing for the majority, said:

I think it is trite law that the court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it:  see Re Gage and Attorney General for Ontario (1992), 90 D.L.R. (4th) 537 (Div. Ct.) and Re Roosma and Ford Motor Co. (1988), 53 D.L.R. (4th) 90 (Div. Ct.).  In Gage, supra, the court found that the failure of the board of inquiry to provide a policeman with timely written notice of its decision to order a hearing into a complaint regarding his behaviour, pursuant to its statutory obligation, was a denial of natural justice which resulted in a loss of jurisdiction.  In Roosma, supra, the court held that judicial review was open to challenge proceedings tainted with a fatal jurisdictional defect at the outset even where an appeal was provided: at p. 490.

[63]       However, in my view, this passage has been overtaken by Supreme Court of Canada jurisprudence and no longer reflects the governing law. The passage relies on lower court authorities and makes no reference to Harelkin. Moreover, the court did not have the benefit of the Supreme Court’s reasons in Matsqui. These cases show that neither a breach of natural justice nor a question of true jurisdiction entitles an aggrieved party to automatic access to the courts.owe

[64]       In Harelkin the majority held that the court should exercise its discretion to refuse judicial review for a breach of natural justice if the aggrieved individual – there a student – had an “adequate alternative remedy” – there an internal appeal.  In so holding, the majority said that a decision made in breach of the rules of natural justice is not a nullity, as the application judge held in the present case, but is curable on appeal. 

[65]       The more significant case is Matsqui. Matsqui was decided after Howe. It affirmed Harelkin and extended its reach to true questions of jurisdiction.  Canadian Pacific challenged assessments levied by Indian bands on land on which its railways ran.  The company contended that the land was not “in the reserve” and thus not within the taxing authority of the bands.  Instead of raising this issue before the various tribunals established under the legislation to hear assessment appeals, Canadian Pacific went to court and sought judicial review of the initial assessments.  The trial judge denied relief on the ground that Canadian Pacific had resort to an adequate alternative remedy.

[66]       All members of the court accepted that the issue was jurisdictional – a true question of jurisdiction in the Dunsmuir sense. Relying on Harelkin, Lamer C.J.C. for the majority of the court held that despite the jurisdictional nature of the inquiry, Canadian Pacific did not have automatic access to the court. The court maintained discretion to refuse to deal with the issue because the internal appeals provided an adequate alternative remedy that ought to have been pursued. It was therefore not an unreasonable exercise of the trial judge’s discretion to deny relief.[2]

[67]       In C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] F.C.R. 332, at para. 42, Stratas J.A. of the Federal Court of Appeal commented that “the use of the label “jurisdiction” to justify judicial interference with ongoing administrative decision making processes is no longer appropriate.”  I agree.  Even a true question of jurisdiction is not, by itself, an exceptional circumstance justifying judicial review before administrative proceedings are completed.  A “jurisdictional” ground of review does not, standing alone, deprive a reviewing court of its discretion to refuse relief. 

(b)         Alternative Remedies and Exceptional Circumstances?

[68]       The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course.  The principle has particular force where adequate alternative remedies are available under the administrative scheme.  Ordinarily an affected individual must pursue these remedies before seeking relief from the court. 

[69]       The rationales for this principle are well known.  The principle respects administrative decision-making and the legislature’s intent that internal review processes be exhausted before the court intervenes.  At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention.  Stratas J.A. summarized the rationales for the principle in C.B. Powell at paras. 31-32, and I can do no better than quote his words:

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.

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. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]

See also David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pp. 485-494 and Ackerman v. Ontario (Provincial Police), 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.).

[70]       In my  view, this principle applies even though s. 2(1) of the Judicial Review Procedure Act provides that an application for judicial review may be brought “despite any right of appeal” to either an administrative tribunal or to the court.  The ability to bring an application for judicial review does not compel the court to undertake judicial review - exceptional circumstances are still required to justify early intervention.

[71]       The College submits that Volochay had an adequate alternative remedy available to him – a review before the HPARB – which he declined to exercise.  As he did not pursue this remedy, and there were no exceptional circumstances to otherwise justify early judicial review, the application judge was wrong in principle to quash the College’s decisions of April 2009, and November 2010.  I agree with this submission.

(i)           Was a review by the HPARB an adequate alternative remedy?

[72]       Because the application judge concluded that the College’s breach of natural justice rendered the proceedings a nullity, she did not consider the effect of Volochay’s decision not to proceed with a review before the HPARB.  However, the application judge erred in her conclusion.  The College’s breach of natural justice did not render its investigation a nullity.  Thus, if a review of the Complaints Committee’s decision was an effective or adequate alternative remedy, then absent exceptional circumstances, early judicial review was not appropriate. 

[73]       To be an effective or adequate remedy, the defect alleged – here a denial of procedural fairness – must be capable of being raised before the reviewing body, and the reviewing body must be capable of “curing” the defect.  A review before the HPARB satisfies these two criteria.

[74]       Section 33(1)(a) of the Code authorizes the HPARB to review the adequacy of the Complaints Committee’s investigation.  An investigation conducted without giving the member notice of the complaint and an opportunity to make written submissions is an inadequate investigation.  Thus, the HPARB could have considered the failure of the Complaints Committee to afford Volochay procedural fairness: see D.L.M. v. S.E.-S., 2010 CanLII 70389 (ON HPARB), at paras. 26, 35-38.

[75]       Under s. 35(1)3 of the Code, the HPARB could have required the ICRC to reconsider the S.D. complaint, but this time after ensuring that Volochay had notice of the complaint and an opportunity to make written submissions.  In other words, the HPARB could have ordered the ICRC to give Volochay his procedural rights during the reconsideration. 

[76]       What the HPARB could not have done was give Volochay the remedy he sought, and that was granted, in the Divisional Court: an order quashing the decision of the Complaints Committee and the later decision appointing an investigator.  However, in my opinion, a reconsideration of the investigation after giving Volochay notice of the complaint and the opportunity to make submissions would be an adequate alternative remedy.  We must assume that the ICRC would conduct the reconsideration fairly and with an open mind.  The HPARB would, therefore, be capable of curing the initial failure of the Complaints Committee to treat Volochay fairly.

[77]       Considerations of cost, convenience and timeliness may bear on the adequacy of an alternative remedy.  To the extent that they are relevant, these considerations also favour review before the HPARB.  That review was scheduled some 20 months ago, and therefore, could have long since been completed, and no doubt for a relatively modest cost.

[78]       Volochay’s failure to seek a review of the Complaints Committee’s decision before the HPARB ought to have precluded relief by judicial review, absent exceptional circumstances. 

(ii)         Were there exceptional circumstances?

[79]       The Complaints Committee’s decision, which called for an examination of Volochay’s entire practice, was a far-reaching order.  It went well beyond simply referring S.D.’s complaint to the Discipline Committee.  Were it not for the availability of a review before the HPARB, I would have been inclined to uphold the application judge’s order quashing the College’s decisions.  The far-reaching nature of the Complaints Committee’s decisions, made without giving Volochay the procedural fairness to which he was entitled, would have been an exceptional circumstance justifying early judicial review.

[80]       But, as I have found that a review before the HPARB was an adequate alternative remedy, Volochay must be able to point to some exceptional circumstance to justify resort to the courts instead of review by the Board.  He has not been able to do so.  And I can see none.  For example, I see no evidence of hardship, or prejudice, or costs, or delay that would support Volochay’s decision to bypass the HPARB and apply for judicial review.  Indeed, Volochay invoked the administrative review process for 15 months, only to withdraw his request shortly before the hearing date.  He must, therefore, accept responsibility for the delay and any increased costs. 

E.           conclusion

[81]       I therefore conclude that the application judge was wrong in principle to grant judicial review.  It is thus not necessary to consider the College’s final submission that Volochay’s conduct after S.D. filed her complaint disentitled him to relief.  I would allow the appeal, set aside the order of the application judge and dismiss Volochay’s application for judicial review.

[82]       I offer this final comment.  The Complaints Committee made a decision not simply to refer the S.D. complaint to discipline, but to call for an examination of Volochay’s entire practice. And it made this decision with complete disregard for Volochay’s rights under the Code and at common law.  He was entitled to better from his governing body.  At the same time, however, he was not justified in bypassing the reviewing body specifically established under the Act to hear parties dissatisfied with a decision of the Complaints Committee.  Whether Volochay could now reinstate his request for review before the HPARB was not before us.

[83]       The College is entitled to its costs of the judicial review in the Divisional Court, which I would fix in the amount of $10,000, inclusive of disbursements and all applicable taxes. The College is also entitled to its costs of the appeal, including the motion for leave, which I would fix in the amount of $12,500, inclusive of disbursements and all applicable taxes.

Released: August 20, 2012 (“J.L.”)

“John Laskin J.A.”

“I agree D. O’Connor A.C.J.O.”

“I agree E.A. Cronk J.A.”