Introduction

There are myriad ways in which a health professional can become entangled with the law. A very common way in which this happens is through administrative or non-court-based proceedings. The courts remain available as places of appeal or review but such access is very much dependent on the state or status of the administrative process. The prevailing rule is that such access is extremely rare until the administrative process has run its course.

A Barrier to Judicial Review

The normal rule is that parties can only proceed to the court system after all adequate remedial recourses in the administrative process have been exhausted. In other words, we are here to help but only after you have finished the process and remedies available in the administrative regime you are involved with. As stated in the Supreme Court of Canada’s (SCC) decision in Canada (House of Commons) v. Vaid (2005):

Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. 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. [Italics added]

The rule against a premature resort to the courts is to prevent disruption or fragmentation of the administrative process, to eliminate large expense and delay, and to avoid the waste that might result if the applicant is successful in the administrative process at the end of the day.

Exceptions for Exceptional Circumstances

Such exceptions are very narrow in scope. The threshold for any such exception is extremely high. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that administrative process allows the issues to be raised and an effective remedy to be granted. Equally, there is no exception for a breach of the rules of natural justice or a true question of jurisdiction.

Exceptions that have been allowed involve a serious error in legal principle which produces an unfair proceeding or where if the ruling below was allowed to stand, the result would be a fundamental failing of justice.

In Lourenco v. Hughes (2017) the Ontario Divisional Court (ONSC) stated the following:

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.

At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in administrative and court proceedings. To find out more about how we can help, contact us online, or at 416-915-4234 to schedule a consultation.

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