CITATION: Sobczyk v. Ontario, 2021 ONSC 7030
COURT FILE NO.: 71/21 (St. Thomas)
DATE: 20211022
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Matthew Sobczyk v. Ontario
COUNSEL: L. Gunn, for the applicant N. Ghobrial, for the respondent
BEFORE: D.L. Corbett J.
DATE: October 21, 2021
ENDORSEMENT
D.L. Corbett J.
[1] I give directions separately in an email endorsement for an expedited hearing in this matter. In this endorsement I explain why, in most situations, recourse should not be had to s.6(2) of the Judicial Review Procedure Act for a hearing before a single judge rather than a hearing before a panel of three judges of the Divisional Court. I have set this endorsement out in this fashion, reported on legal reporting services, so that current practice around s.6(2) of the JRPA may be clear to the bar and the public for future reference.
[2] The history of this matter is set out in an endorsement of Grace J. dated October 20, 2021, as follows:
Today’s attendance follows Nicholson J.’s endorsement of October 4, 2021. This application for judicial review was, in error, opened in St. Thomas rather than electronically in Toronto as the Feb 18/21 Notice to Profession – Divisional Court requires.
This matter had been before Nicholson J. on Aug. 23/21. At that time, he made an interim order on consent. A revised interim order was made by him on the last return date.
Because of COVID, Divisional Court matters are being commenced centrally and managed by an administrative judge (Corbett J. or Favreau J.) or their designate….
New matters, such as this one, are being returned to the applicable Region for case management and, in the normal course, hearing.
In this case, the applicant seeks leave to have the application for judicial review heard by a single judge pursuant to s.6(2) of the Judicial Review Procedure Act. That subsection requires that the applicant establish (i) that the case is one of urgency; and (ii) that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
The court must satisfy itself that the requirements of the statutory test have been met. The consent of the parties is not sufficient: Communications, Energy and Paperworkers Union of Canada, Local 774 v. Beachville Lime Ltd. (2001), 141 OAC 356 (Div. Ct.) at para. 3.
Nicholson J. appeared to deal with the issue in his most recent endorsement. He concluded the application should be heard by a panel and transferred the matter to the Divisional Court under s.6(3) of the JRPA. However, he seems to have left open the possibility of another Justice concluding otherwise, presumably based on an updated record that takes into account the revised interim order referred to earlier.
I stand ready to schedule that motion and to assist the parties in timetabling intervening steps if and when required….g1
However, before following that path, I encourage the parties to contact the Toronto Divisional Court office to see if this application can be heard by a panel there in relatively short order….
Unfortunately, I have confirmed that London cannot accommodate this matter (the current time estimate is four hours) during the week of November 22, 2021 (the next Divisional Court sittings in London). The next sittings in London after that is not until April 25, 2022. Counsel for both parties assure me that the matter must be determined before then as the 2022 tobacco crop will then be in play. I am hopeful they can find a much earlier hearing date in Toronto. If not, and as stated, I stand ready to deal with the renewed s.6(2) JRPA request.
[3] If this matter had been initiated in accordance with the Notice to Profession – Divisional Court (February 18, 2021), the current difficulty would have been attenuated greatly. The parties would have identified the issue of urgency to the Divisional Court at the outset and a schedule would have been directed that included a timely return date, likely before the end of 2021 or in early 2022. It is more difficult to schedule this case within that timeframe now, in the latter half of October, than it would have been if the parties had followed the Notice to Profession and scheduling had been done in mid-August 2021.
[4] With the advent of the court’s use of CaseLines and ZOOM, and coordinated Divisional Court case management throughout Ontario, recourse should not be had to order a hearing before a single judge pursuant to JRPA, s.6(2) except in truly exigent circumstances. Simply put, the court can now arrange expedited panel hearings for matters arising anywhere in Ontario, and so the second branch of the statutory test cannot be met in most cases. There is administrative oversight available both regionally and centrally to address urgent matters, and it should only be after recourse to this oversight has been sought that a hearing before a single judge should be ordered pursuant to s.6(2) of the JRPA unless the exigencies of the situation do not allow that to take place.
[5] By the Court’s Practice Direction, in Toronto, individual Superior Court Judges are not charged with deciding issues under s.6(2) of the JRPA. That is because there are Divisional Court judges and administrative judges available to decide these issues. In the current COVID situation, where intake and triage are managed centrally or by designated judges in each Region, administrative oversight may be brought to bear immediately on urgent matters, and so a consistent approach may be taken to schedule urgent panel hearings.
[6] It may be recalled that s.6(2) of the JRPA exists as a result of the unique nature and mandate of the Divisional Court as an appellate and review court that does its work both centrally (in Toronto) and locally (in each Region). Prior to COVID-19, panel hearings were available outside Toronto only at periodic regional sittings. As reflected in the endorsement of Grace J., quoted above, the next two sittings in London are in November 2021 and April 2022. Where there are sittings only 2-4 panel weeks per year in a Region, it can be anticipated that a matter may arise that requires attention more urgently than the Regional sittings schedule can accommodate. This is reflected in the differing practice in Toronto and outside Toronto for requests for urgent hearings before a single judge pursuant to s.6(2) of the JRPA: historically, recourse to this provision has been required from time-to-time outside Toronto, but has seldom been required inside Toronto. In addition, s.21(2)(c) of the Courts of Justice Act accords discretion the court’s Executive (usually and currently vested in the Associate Chief Justice) to designate a particular matter to be heard by a single judge of the Divisional Court rather than a panel. It is an extraordinary decision to conclude that a matter ordinarily requiring decision from a panel of three judges of the Divisional Court will be heard by a single judge, and it is preferred that this extraordinary exercise of discretion be exercised consistently with an overall appreciation of the court’s ability to accommodate an urgent panel hearing.
[7] The court now has the use of CaseLines and ZOOM to assist in accommodating an urgent panel hearing. It should be immediately obvious how this technology attenuates the need for recourse to s.6(2) of the JRPA outside Toronto. Regional Superior Court judges overseeing Divisional Court operations in their Regions, and staff and administrative judges of the Divisional Court in Toronto, are available to facilitate urgent panel hearings by ZOOM. It should be expected that this will be a continuing feature of Divisional Court practice post-COVID. Thus, in most cases, it should not be possible to meet the second branch of the test pursuant to s.6(2) of the JRPA.
[8] I wish to be clear that this endorsement is not intended to criticize anyone in respect to the case at bar. Counsel was not aware of the COVID Notice to Profession – Divisional Court. There were questions of immediate urgency that were addressed appropriately and in a timely way before Nicholson J. The matter was then referred to Grace J., who is the Divisional Court oversight Justice in Southwest region, who, in turn, directed the matter to me for consideration of an expedited hearing. In short, everything worked as it should, and in the result the case will be heard by a panel of three judges in a timely way.
D.L. Corbett J.
Date: October 22, 2021