2023 ONSC 2419

DIVISIONAL COURT FILE NO.: DC-22-00002181

DATE: 20230531

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Williams and Nieckarz JJ.

B E T W E E N:

SUDBURY AND DISTRICT HEALTH UNIT

Applicant

and –

ONTARIO NURSES’ ASSOCIATION and ROBERT J. HERMAN

Respondents

Daryn Jeffries, for the Applicant

Nicole Butt, Sharan Basran and Sevda Mansour, for the Respondent, Ontario Nurses’ Association

HEARD by videoconference in Sudbury: April 11, 2023

backhouse J.

reasons for Decision on Prematurity of Application

Overview

[1] The Applicant, Sudbury and District Health Unit, operating as Public Health Sudbury & District, applies for judicial review of the grievance arbitration decision of Arbitrator Robert J. Herman (the “Arbitrator”) dated June 7, 2022 ("the Decision”).[^1] The Arbitrator determined that the Applicant engaged in prima facie discrimination when it denied the grievor’s request for an exemption for failing to comply with the Applicant’s COVID-19 Vaccination Policy which required the grievor to get vaccinated. The Arbitrator made this determination on the basis that the grievor was entitled to an exemption from the Policy based on the protected ground of creed, pursuant to the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

[2] In addition to the individual grievance, the Respondent also filed a policy grievance challenging the Policy. The parties agreed that the initial question for determination by the Arbitrator was whether or not the grievor was prima facie discriminated against on the basis of creed. The parties agreed to bifurcate this issue from the other issues raised by the grievances before the Arbitrator. The Arbitrator accepted the parties’ agreement and after a hearing, rendered the Decision determining the prima facie discrimination issue.

[3] In its application, the Applicant requests an order quashing and setting aside the Decision and an order that the Applicant did not prima facie discriminate against the grievor. The Applicant submits that the grievor’s refusal to get vaccinated did not have a nexus to or was not rooted in her religion. It submits that the Arbitrator failed to apply the correct legal test for establishing a prima facie case of discrimination on the basis of creed under the Human Rights Code (“the Code”). The Applicant further submits that the Decision was not justified in relation to the law and facts that constrained the Arbitrator and was not based on an internally coherent and rational chain of analysis.

[4] The decision being reviewed does not finally resolve all issues before the Arbitrator. The next phase of the arbitration will address whether the Applicant is able to accommodate the grievor without undue hardship. Depending on the response to that question the Arbitrator will then be asked to determine the appropriate remedy or will be asked to consider the broader challenge to the overall reasonableness of the vaccination policy.

[5] Neither party raised the issue of prematurity at the hearing, and both parties evidently wished to proceed with the application. After hearing the argument and upon considering this matter, the Court requested that the parties make submissions in writing on whether the application for judicial review was premature.

[6] In its written submissions, the Applicant argues that the application should not be dismissed as premature. The Respondent submits that the application is premature.

[7] For the reasons set out below, I have concluded that there are no extraordinary or exceptional circumstances to justify departing from the Divisional Court’s usual approach restricting judicial review to final decisions. The application should be dismissed for prematurity.

Submissions on Prematurity

[8] The Applicant submits that the following factors weigh in favour of determining that the instant application should not be dismissed as premature:

a. Although it may be characterized as interim or interlocutory insofar as it was rendered prior to the completion of the proceedings before the Arbitrator, the Decision nevertheless determined a particular (and central) issue raised by the Individual Grievance, namely, whether or not the grievor was prima facie discriminated against on the basis of creed. The determination of this issue is finally dispositive of a substantive right arising under the Code. Accordingly, the Decision fully and finally disposes of a substantive defence that the Applicant may raise to the Individual Grievance.

b. Given the nature of the issues raised by the grievances and the impact of the determination of the discrimination issue on any subsequent litigation between the parties, the proceedings before the Arbitrator were bifurcated at a natural and practical break between separate phases of the proceedings. This bifurcation was the product of an agreement between the parties, which the Arbitrator accepted and applied. This kind of bifurcation does not raise the same concerns with respect to the undue fragmentation of proceedings that the doctrine of prematurity is intended to curtail.

c. The proceedings before the Arbitrator have not been substantially delayed by this application, which proceedings the parties have held in abeyance pending the resolution of the application.

d. The application has already been scheduled and heard relatively expeditiously.

f. Neither party raised the issue of prematurity, and both parties evidently wished to proceed with the application, which has now already been heard. It would be wasteful not to determine the application in the circumstances.

g. The Applicant submits that it has made out a strong case that the Decision was incorrect or unreasonably decided.

Analysis

[9] A finding of prima facie discrimination means that the claimant has satisfied its initial evidentiary burden. It is not a final determination that discrimination has actually occurred-such a determination is made only after the Employer has called evidence about whether it could accommodate the claimant without undue hardship: As the Arbitrator properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the Employer to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. (Moore v British Columbia (Education), [2012 SCC 61](https://www.minicounsel.ca/scc/2012/61), [2012] 3 S.C.R. 360 at para [33](https://www.minicounsel.ca/scc/2012/61).)

[10] The Arbitrator’s decision only addressed the first part of this test. The following issues remain outstanding:

a. Whether the Employer could have accommodated the grievor without undue hardship;

b. If the Arbitrator finds that the Employer could have accommodated the grievor, there then is the issue of remedy to be determined;

c. If the Arbitrator finds that the Employer could not have accommodated the grievor, the Respondent will be proceeding with the grievance challenging the reasonableness of the vaccine policy itself.

Judicial Review is a Discretionary Remedy Reserved for Final Decisions absent Exceptional or Extraordinary Circumstances

[11] The courts have long been reluctant to entertain judicial review applications unless the decision being reviewed is final and the underlying administrative proceeding is completed. Only in exceptional or extraordinary circumstances will the court interfere with a proceeding midstream. Federal and provincial appellate courts have affirmed this approach, confirming that parties generally only have recourse to the court system once a final decision has been rendered and after all adequate remedial recourses in the administrative process have been exhausted. (C.B. Powell Limited v. Canada (Border Services Agency), [2010 FCA 61](https://www.canlii.org/en/ca/fca/doc/2010/2010fca61/2010fca61.html); Wilson v. Construction and Allied Workers (Labourers’ International Union of North America, Local 607), 2008 6522 (ON LRB), reviewed on other grounds [2016 SCC 29](https://www.minicounsel.ca/scc/2016/29); Volochay v. College of Massage Therapists of Ontario, [2012 ONCA 12](https://www.minicounsel.ca/onca/2012/12).)

[12] The Ontario Court of Appeal has explained in Volochay that the rationale for limiting judicial review to final decisions is to avoid fragmentation of the administrative process and a piecemeal approach to litigation. Fragmentation causes both disruption and delay to administrative proceedings. At para. 69, the Court quoted Stratas J.A. who summarized the rationales for the principle in C.B.Powell at paras.31-32:

[69] …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.] (Volochay v. College of Massage Therapists of Ontario, [2012 ONCA 541](https://www.minicounsel.ca/onca/2012/541) at paras. [68-69](https://www.minicounsel.ca/onca/2012/541)).

Extraordinary or Exceptional Circumstances

[13] A significant body of case law has developed on what constitutes “exceptional or extraordinary” circumstances such that the court will exercise its discretion to hear a judicial review application on an interlocutory decision. Those decisions confirm that such discretion is exercised sparingly and that exceptions are “most rare.” (Wilson v. Construction and Allied Workers (Labourers’ International Union of North America, Local 607), 2008 6522 (ON LRB) at para 33, reviewed on other grounds 2016 SCC 29.)

[14] The court, in emphasizing that the bar is high, has noted that “assertions of bias, procedural unfairness, breach of natural justice and lack of jurisdiction do not give rise to an automatic right to judicial review.” (Kadri v. Windsor Regional Hospital, [2019 ONSC 5427](https://www.canlii.org/en/on/onscdc/doc/2019/2019onsc5427/2019onsc5427.html) at para [59](https://www.canlii.org/en/on/onscdc/doc/2019/2019onsc5427/2019onsc5427.html#par59)); See also Volochay at para 63.)

[15] The court has exercised its discretion to judicially review an interlocutory decision in situations where there is real unfairness through a denial of natural justice and/or where a remedy later would not cure the unfairness. For example, in Gage v Ontario (Attorney General), the Court exercised its discretion to hear a judicial review, finding that the underlying decision was so unfair that it represented an exceptional circumstance. In that case, Gage, a police constable, was not notified for ten months about the decision to forward allegations against him to a Board of Inquiry, despite a requirement that he be advised “forthwith.” The court noted that “if there is a prospect of real unfairness through denial of natural justice or otherwise, a superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted…the unfairness in this case is so obvious that it would be inappropriate to put the officer through a trial before a tribunal that lost jurisdiction through a denial of natural justice.( Gage v. Ontario (Attorney General), [1992 8517 (ON SCDC)](https://www.canlii.org/en/on/onscdc/doc/1992/1992canlii8517/1992canlii8517.html) at para. [61](https://www.canlii.org/en/on/onscdc/doc/1992/1992canlii8517/1992canlii8517.html#par61)).

[16] Similarly, where the College of Physicians and Surgeons failed to give notice of a complaint to the respondent physician and then did not deal with the complaint for more than four and a half years, the court exercised its discretion to hear the judicial review even though the substance of the complaint had not yet been adjudicated. (McIntosh v College of Physicians and Surgeons of Ontario, 998 19444 (ON SCDC)).

[17] As the Divisional Court explained in Lourenco v Hegedu:

In rare cases this court will intervene on an application for judicial review in the midst of an administrative process where there are strong reasons to believe that the ongoing process is so deeply flawed that there is a strong likelihood that it will have to be run over again, usually on the basis of bias, reasonable apprehension of bias or want of jurisdiction. This does not mean that judicial review is available before the conclusion of administrative proceedings in any case where an allegation of this kind is made. It must be emphasized that early judicial review is the rare exception, not the rule, and will only be permitted in rare cases where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceedings without interruption until their conclusion. Analogies can be drawn to criminal prosecutions where it is very rare indeed for a proceeding to be interrupted for judicial review or appeal prior to the conclusion of the proceeding. (Lourenco v. Hegedus, [2017 ONSC 3872](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3872/2017onsc3872.html) at para. [6](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3872/2017onsc3872.html#par6).)

[18] There is no suggestion in this case that the process is deeply flawed, or that a breach of natural justice or real unfairness would occur if the judicial review was not heard. Instead, the Applicant sets out a number of submissions the court should consider, none of which amount to exceptional or extraordinary circumstances.

Final Disposition

[19] The Applicant argues that where a decision finally disposes of a substantive right, even if the decision is interlocutory, the judicial review is not premature and the court ought to hear the application. In this case, the Arbitrator’s decision is not dispositive of a substantive right—it determined that the grievor met the initial onus of proving that the Applicant prima facie discriminated against her. It does not find in fact that the grievor was discriminated against since it remains to be determined that the Applicant could not have accommodated the grievor short of undue hardship.

[20] The Applicant relies upon the Court’s decision in Ackerman v Ontario Provincial Police, [2010 ONSC 910](https://www.canlii.org/en/on/onscdc/doc/2010/2010onsc910/2010onsc910.html) (“Ackerman”) in arguing that the final disposition of a substantive right may be subjected to judicial review. Ackerman relies upon Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon (2005), [2005 FC 1000](https://www.canlii.org/en/ca/fct/doc/2005/2005fc1000/2005fc1000.html) (“Kahlon”.) Those decisions clarify that in circumstances where a decision finally disposes of a substantive right and there is no way to remedy the loss of that right in the future, the court may exercise its discretion to hear the judicial review application before the end of the whole proceeding. Kahlon challenged the issuance of a summons for a witness’ immigration file. The court in that case found that the application was not premature because the decision finally disposed of the witness’ rights once her privacy was lost, it could not be regained— and there was no way to cure the breach of her rights in the future.

[21] The court in Ackerman referred to Kahlon as an example of when judicial intervention may be warranted, explaining that “where the decision, although interlocutory in most respects, determines a particular issue (as in Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon (2005), 2005 FC 1000, 35 Admin L.R. (4th) 213 (FC) in which the summons issued would be dispositive of the witnesses’ privacy rights.”(Ackerman v. Ontario Provincial Police, 2010 ONSC 910 at para [19](https://www.canlii.org/en/on/onscdc/doc/2010/2010onsc910/2010onsc910.html#par19)).

[22] This is distinguishable from the facts in this case. The Arbitrator does not finally dispose of any substantive rights. Additionally, there is no need for the court to intervene early because the rights at issue can be remedied in the event a future judicial review application finds that the Decision was unreasonable or incorrect.

Bifurcation

[23] The Applicant suggests that because the hearing was bifurcated at a natural break between separate phases of the hearing, it does not raise the same concerns with respect to fragmentation and delay. The case law does not support this argument. While the Federal Court of Appeal has recognized that decisions bifurcated between the merit and remedy phases of a hearing may not raise the same concerns about fragmentation, it explicitly contrasts that with the situation where the hearing is bifurcated on the merits. (Wilson v. Construction and Allied Workers (Labourers’ International Union of North America, Local 607), 2008 6522 (ON LRB) at para. 36, reviewed on other grounds 2016 SCC 29.)

[24] Even where the only remaining issue is remedy, the court is often loathe to intervene, finding that the question of remedy should be determined before recourse is made to the Divisional Court. (Air Canada v. Canadian Union of Public Employees, Air Canada Component, [2020 ONSC 847](https://www.canlii.org/en/on/onsc/doc/2020/2020onsc847/2020onsc847.html); Jones Lang Lasalle Real Estate Services Inc. v Human Rights Tribunal of Ontario and Brian Graff, [2015 ONSC 4005](https://www.canlii.org/en/on/onscdc/doc/2015/2015onsc4005/2015onsc4005.html)).

[25] In this case, the decision in question is clearly “in the middle of the hearing on the merits”. There are multiple issues remaining to be determined and there is a real risk of fragmentation and piecemeal litigation if the court proceeds with the application at this time.

Delay

[26] The courts have expressed concern that proceeding with judicial review applications filed on interlocutory decisions will create delays in both the administrative and judicial legal systems. While the Applicant argues that proceedings before the Arbitrator have not been substantially delayed, it has already been almost a year since his first decision was released. If the Applicant is successful, the parties will need to return to the Arbitrator, make new submissions on the issue of prima facie discrimination, and wait for his decision before proceeding to the next phase of the hearing, leading to further delay. In addition, concerns about delay are not restricted to delay in a particular proceeding, but are broader in their impact to administrative proceedings in general. (Air Canada v. Lorenz (T.D.), [1999 9373 (FC)](https://www.canlii.org/en/ca/fct/doc/1999/1999canlii9373/1999canlii9373.html) at para. [25](https://www.canlii.org/en/ca/fct/doc/1999/1999canlii9373/1999canlii9373.html#par25)).

[27] A similar sentiment was voiced by the Divisional Court in Unimac-United Management Corp. v St. Clare’s-Monaco Place, [2015 ONSC 4760](https://www.canlii.org/en/on/onscdc/doc/2015/2015onsc4760/2015onsc4760.html):

[14] The third consideration is delay. As in the Lorenz decision, (see paras. 24- 25), the delay consideration extends beyond the parameters of this case. If the matter does not proceed, we are inviting other parties in other cases to seek delay by alleging bias or other breaches of natural justice. In such circumstances, we would thus run the risk of reducing fundamental concerns running to the heart of the administration of justice such as bias to an “off ramp” from a statutorily mandated process when the proceeding is not going well for one of those parties.

[28 The court has been clear about its concern that premature judicial review applications may lead to delay in both the individual case and the system as a whole. The Applicant’s suggestion that there has not been substantial delay is not persuasive.

Need to Avert Costly and Complex Litigation

[29] The Applicant submits that resolution of this application will avert costly and complex litigation that would otherwise prove unnecessary. Resolution of this application does not resolve the outstanding issues before the Arbitrator. In addition, the court has been clear that this is not an exceptional circumstance that would lead it to hear a judicial review application on an interlocutory decision. For example, in Allstate Insurance Company v Billard [2019 ONSC 6265](https://www.canlii.org/en/on/onscdc/doc/2019/2019onsc6265/2019onsc6265.html), the applicant argued that costs and time would be saved by hearing the judicial review because the expense and inconvenience of a full-blown hearing could be avoided. In denying the application, the court noted that “the possibility of cost savings by a fragmented hearing or a bifurcated trial is routinely the basis asserted for the strategic decision to ask for a review or appeal of a preliminary decision. That does not qualify as exceptional. Moreover, the potential costs-savings rationale has been routinely rejected by courts on both policy and factual bases.” (Allstate Insurance Company v Billard), 2019 ONSC 6265 at paras. 13 and 14).

[30] Similarly, in Bannis v Ontario College of Pharmacists, [2020 ONSC 6115](https://www.canlii.org/en/on/onscdc/doc/2020/2020onsc6115/2020onsc6115.html), the applicant argued that if she was successful on judicial review, the need for the balance of the hearing would be avoided. This argument was rejected as not being an exceptional circumstance and the Court dismissed the application for judicial review on the grounds of prematurity. (Bannis v Ontario College of Pharmacists 2020 ONSC 6115 at para. 7).

Broad Implications of Arbitrator’s Decision

[31] I am not persuaded by the Applicant’s submission that the application should be heard because of its broad implications to cases involving exemptions or refusals to comply with COVID-19 vaccination policies on the Code-protected ground of creed. As Stratas JA was quoted in Volochay at paras. 68-69 as set out above, one of the rationales for limiting judicial review to final decisions is that it is only at the end of the administrative process that a reviewing court will have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience.

[32] These are important considerations for an application which may have broad implications and support that this application for judicial review is premature.

Not to Determine the Application Is Wasteful, Given That It Has Already Been Heard

[33] The issue of the prematurity of the application should have been brought to the court’s attention at the outset of the hearing. The fact that the application was argued without the issue being raised does not make this an exceptional or extraordinary circumstance.

The Strength of the Case

[34] The court has not typically considered the strength of the case in determining whether to quash an application for prematurity. This is a factor that is considered rarely and only in cases where there are allegations of a breach of natural justice—particularly when allegations of bias are raised. Where the court is being asked to determine whether a particular breach of natural justice rises to an “exceptional” circumstance, the court may consider whether it is “clear and obvious” that the application will be successful. (Unimac-United Management Corp. v St. Clare’s-Monaco Place, [2015 ONSC 4760](https://www.canlii.org/en/on/onscdc/doc/2015/2015onsc4760/2015onsc4760.html) at paras. [16 and 17](https://www.canlii.org/en/on/onscdc/doc/2015/2015onsc4760/2015onsc4760.html#par16).)

[35] In the present case, there is no question of a breach of natural justice. The Applicant is seeking review of a singular issue raised during a hearing on the merits of the grievance.

Conclusion

[36] There are no extraordinary or exceptional circumstances to justify departing from the Divisional Court’s usual approach restricting judicial review to final decisions. The application is dismissed for prematurity without prejudice.

Costs

[37] Given that the issue of prematurity was raised by the court, the parties shall each bear their own costs.

Backhouse J.

I agree______________________________

Williams J.