Court File and Parties

CITATION: Franssen v. Association of Professional Geoscientists of Ontario, 2015 ONSC 651

DIVISIONAL COURT FILE NO.: 339/14

DATE: 20150129

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jan Franssen, Applicant (Responding Party)

AND:

ASSOCIATION OF PROFESSIONAL GEOSCIENTISTS OF ONTARIO, Respondent (Moving Party)

BEFORE: Swinton J.

COUNSEL: Chantellel Bryson, for the Applicant

Richard Steinecke and Natasha Danson, for the Respondent

HEARD at Toronto: January 28, 2015

Endorsement

[1] The respondent Association of Professional Geoscientists of Ontario (“the Association”) has brought a motion to quash the applicant’s application for judicial review on the grounds of prematurity and, in the alternative, to strike his affidavit.

[2] The Registration Committee of the Association rejected the applicant’s application for registration as a professional geoscientist, because it was not satisfied that he met the academic and work experience requirements for registration set out in ss. 8, 9.1, 9.2 and 9.3 of O. Reg. 59/01. The Committee later gave detailed reasons for the decision in a letter dated February 20, 2014.

[3] An appeal lies from the Committee’s decision to the Council of the Association, and a further appeal lies to the Divisional Court (see s. 14 of the Professional Geoscientists Act, 2000, S.O. 2000, c. 13). While the applicant commenced an appeal to the Council, that appeal has been adjourned since May, 2014 because he commenced this application for judicial review.

[4] Judicial review is a discretionary remedy. The Divisional Court will not hear an application for judicial review of the decision of an administrative tribunal where the applicant has an adequate alternative remedy, absent exceptional circumstances, because the application is premature (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 68 and 69). Here, the applicant has an adequate alternative remedy by way of a statutory appeal to the Council, where he will have an oral hearing, the opportunity to present evidence, and the ability to make his arguments about the interpretation and application of the regulations.

[5] No exceptional circumstances exist here, as the applicant does not allege a serious breach of the rules of natural justice, bias or an abuse of process. Accordingly, the applicant should pursue his appeal before the Council of the Association.

[6] Should the applicant wish to appeal the Council’s decision, he will have a right to appeal to the Divisional Court. At that point, the Court will have the benefit of the evidentiary record before the Council, as well as Council’s decision in respect of the application of its registration requirements to the applicant’s educational qualifications and work experience.

[7] While a single judge of the Divisional Court may sometimes be reluctant to quash an application for judicial review as premature, the judge has the discretion to do so when the application is “manifestly premature” (Haigh v. College of Denturists of Ontario, 2011 ONSC 2152 (Div. Ct.) at para. 10; Baker v. Ontario (Director, Ministry of the Environment), 2013 ONSC 4142 (Div. Ct.) at para. 41). In my view, the present application for judicial review is manifestly premature, given the alternative remedy by way of appeal to the Council. Therefore, the motion is granted, and the application for judicial review is quashed. Given my decision on prematurity, I need not deal with the admissibility of the affidavit evidence.

[8] The Association seeks costs of $10,000 for the motion, while the applicant submits that there should be no costs because this is a public interest case. In my view, this is not purely a public interest case, as the applicant is acting in his self-interest in seeking registration with the Association.

[9] Costs to the Association are fixed at $5,000.00 all inclusive, an amount that is fair and reasonable in the circumstances of this motion.

Swinton J.

Date: January 29, 2015