CITATION: Wahbi v. Ontario College of Teachers, 2023 ONSC 3713
DIVISIONAL COURT FILE NO.: 23-278-JR
DATE: 20230620
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MICHAEL JAMES WAHBI, Applicant / Moving Party
AND:
ONTARIO COLLEGE OF TEACHERS, Respondent / Responding Party
BEFORE: Schabas J.
COUNSEL: Howard Cohen, Sabrina Waraich and Avin Persad-Ford, for the Applicant / Moving Party
Jordan Stone and Lisa Feinberg, for the Respondent / Responding Party
HEARD: May 26, 2023
REASONS ON MOTION
SCHABAS J.
Overview
[1] On May 26, 2023, I heard a motion for an extension of time in which to commence this application for judicial review and for interim relief effectively seeking a stay of the proceedings of the Discipline Committee of the College pending the outcome of the application. The parties required a decision promptly because preliminary motions were scheduled to begin the following week before the Discipline Committee. I dismissed the motion, with written reasons to follow.
[2] In dismissing the motion, I stated that I was not satisfied that the test had been met for granting an extension of time in which to bring the application, noting in particular my view that the application for judicial review was premature, and that this also supported my conclusion that a stay was not appropriate either.
[3] I now provide additional written reasons.
Background
[4] The moving party, Mr. Wahbi, seeks to review two orders of the Ontario College of Teachers arising from its investigation of alleged misconduct by Mr. Wahbi towards a student in 2009. The OCT is mandated under the Ontario College of Teachers Act, 1996, SO 1996, c 12 (the "Act"), to regulate the teaching profession in the public interest, including by enforcing ethical standards and standards of practices through disciplinary proceedings against licensed teachers.
[5] The first order, issued on January 5, 2022, suspended the Applicant's Certificate of Qualification and Registration on an interim basis. Written reasons for that decision were completed on January 26, 2022, and provided to the Applicant on February 1, 2022. The Applicant did not seek judicial review of the decision at that time.
[6] The second order was made by a panel of the Investigation Committee on April 26, 2022. It referred the matter to the Discipline Committee pursuant to subsection 26(5)(a) of the Act. The Applicant did not seek judicial review of the referral decision at that time.
[7] A Notice of Hearing containing the allegations of professional misconduct was issued June 3, 2022. Disclosure was provided in August, 2022.
[8] On February 7, 2023, the Applicant's counsel advised the College of the Applicant's intention to bring an application for judicial review to prohibit the College from proceeding with the discipline hearing. Counsel for the College immediately raised the concern that such an application would be premature, and out of time.
[9] On March 14, 2023, a pre-hearing conference was held in the discipline proceedings and hearing dates before the Discipline Committee were set. June 1 and 2, 2023 were scheduled to hear the Applicant's preliminary motions, and November 6-8 and 20-22, 2023 were scheduled as dates for the hearing on the merits.
[10] On April 26, 2023, the Applicant served a motion in the disciplinary proceedings to stay those proceedings pending the outcome of a judicial review application, which had not yet been filed. He also sought an order dismissing the proceedings on the grounds that the matter was res judicata and an abuse of process.
[11] On May 3, 2023, the Applicant filed his Notice of Application for Judicial Review in this Court seeking judicial review of the two orders and requesting a stay of the Discipline Committee proceedings. The Applicant also seeks a writ of prohibition preventing the Discipline Committee from holding a hearing to determine the allegations of professional misconduct against the Applicant, and an order for an extension of time to bring the application for judicial review. The following day, on May 4, 2023, Justice Matheson directed that an urgent case conference be scheduled to discuss issues of timeliness, prematurity, and scheduling. That case conference was held on May 10, 2023 before Justice O'Brien who directed that the Applicant's motion for an extension of time to bring an application for judicial review and motion for a stay pending judicial review be heard together on May 26, 2023.
Issues
[12] This motion raises two issues:
(a) Whether an extension of time should be granted to permit this application to be brought; and
(b) If so, whether a stay of the disciplinary proceeding should be ordered pending the application for judicial review.
The request for an extension of time
[13] The Judicial Review Procedure Act, RSO 1990, c J1 (“JRPA”), was amended in 2020 to impose a 30-day limitation period for bringing an application for judicial review. At the same time, it provided authority for the court to extend the time for making such an application. Sections 5(1) and 5(2) of the JRPA state:
5(1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).
5(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.
[14] The decision to extend time is discretionary; however, two mandatory conditions must be met: (1) there must be “apparent grounds for relief”, and (2) no substantial prejudice or hardship will result to any other person affected by reason of the delay. Even when these conditions are met, an order extending time is not automatic. The court has discretion, and may consider factors such as the length and reasons for the delay. The onus of meeting the conditions, and of satisfying the court that an extension should be granted, is on the moving party: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 17-18; Jonker v. Township of West Lincoln, 2023 ONSC 1948 at paras. 34-36.
[15] The “apparent grounds for relief” condition requires the Court to examine the substantive merits of the application. This is not a high test, but is at least higher than the test to strike a pleading. The test ensures that, even when there is no prejudice caused by delay alone, an extension will not be granted in a case that has no chance of success.
[16] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 68, the Court of Appeal stated:
…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.
[17] This principle has been repeatedly recognized and applied by this Court for decades: see, e.g., Latif v. Ontario (Human Rights Comm.), 1992 14313 (ON SCDC); Pan v College of Physicians and Surgeons of Ontario, 2021 ONSC 5325 (Div Ct) at para. 19; Rew v Association of Professional Engineers of Ontario (Discipline Committee), 2016 ONSC 4043 (Div Ct) at para. 17.
[18] The principle respects administrative decision-making and prevents fragmentation, delay and additional costs. It allows the administrative process, often before a tribunal with expertise and experience in the area, to proceed while preserving the right of the court to intervene in exceptional circumstances and, of course, at the end of the process when the court will have the benefit of the tribunal’s findings and reasons which, to quote Stratas J.A. in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] F.C.R. 332, at para. 32, “may be suffused with expertise, legitimate policy judgments and valuable regulatory experience.”
[19] This application is premature, for a number of reasons.
[20] The issues raised on the judicial review – res judicata and abuse of process - have also been raised before the Discipline Committee, and motions on these issues were to be heard by the Discipline Committee one week after this motion was heard. If the applicant is successful before the Discipline Committee, the application to this court may be moot. On the other hand, if he is not successful, the applicant will have a right of appeal at the end of the proceeding and these issues can be addressed by the court then, on a full evidentiary record and with the benefit of the reasons of the Discipline Committee: Act, 35(1) and (4).
[21] Issues such as res judicata and abuse of process generally do not constitute exceptional circumstances and, given the present ability to raise these issues before the Discipline Committee, there is no exceptional circumstance that would justify jumping over that process to address the matter before the courts now: Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483 (c.A.); Sherman v. Canada (Canada Customs and Revenue Agency), 2006 FC 715, at paras. 44-45; Hennick v. Toronto Community Housing Corporation, 2006 37413 (ON SCDC) at para. 6-7; David v. Law Society of Ontario, 2021 ONSC 4606 at para. 18; Rew at para. 17.
[22] Circumstances raised by the applicant, such as the College relying on what is asserted to be inadmissible opinion evidence or not obtaining all relevant evidence in determining to send the matter to the Discipline Committee, or failing to consider alleged harassment by the complainant of the applicant, are issues that may be raised before the tribunal and do not rise to the level of exceptional circumstances.
[23] In addition, the applicant is challenging a screening decision to send a matter to a hearing. Like the decision of a prosecutor to proceed with charges in a criminal court, courts have repeatedly held that an application for judicial review from a screening or investigatory body that does not finally determine the rights of the applicant is premature: Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807 at para. 25; Haigh v. College of Denturists, 2011 ONSC 2152 at paras. 27-28.
[24] As the application is premature, there are no “apparent grounds for relief”, it is therefore not necessary for me to address whether there would be substantial hardship to the applicant, or to consider other issues such as when the applicant formed the intention to appeal and the length of and reasons for the delay, or prejudice to the respondent.
[25] The motion for an extension of time to bring this application is dismissed.
Motion for a stay
[26] As the application cannot proceed, it is not necessary to consider the applicant’s request for a stay.
Costs
[27] When I dismissed the motion on May 26, 2023, I did not address costs. In my view the respondent should have their costs on a partial indemnity basis in the amount of $10,000.
Schabas J.
Date: June 20, 2023
CITATION: Wahbi v. Ontario College of Teachers, 2023 ONSC 3713
DIVISIONAL COURT FILE NO.: 23-278-JR
DATE: 20230620
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
MICHAEL JAMES WAHBI
– and –
ONTARIO COLLEGE OF TEACHERS
REASONS ON MOTION
Schabas J.
Released: June 20, 2023