A premature application for judicial review is litigation in instalments

In the recent case of Fawcett v College of Physicians and Surgeons of Alberta, 2022 ABQB 452 (Fawcett), the Court of Queen’s Bench of Alberta considered two applications for judicial review, both challenging the decisions by the College of Physicians and Surgeons of Alberta (the Respondent). The Court concluded that the applications were premature, and the Respondent’s decisions were reasonable.

Background

In Fawcett, two physicians, Dr. Fawcett and Dr. Dickson (the Applicants), separately filed applications for judicial review challenging the decisions by the Respondent. The Applicants’ applications for judicial review were unrelated to one another. In both cases, the Court determined the Complaints Review Committee (CRC) produced reasonable decisions based on the facts of each case.

Threshold point of prematurity

Alberta courts have strongly discouraged litigation in instalments.[1] The rationale for discouraging premature applications is threefold:

1. Judicial deference: The doctrine of judicial deference respects the legitimacy of rational decisions made by administrators.
2. Conservation of judicial resources: Considerable resources are required to rule each case on its merits.
3. Legislative intent for administrative adjudication: If premature applications are permitted, it encourages future litigants to appeal prematurely, promoting an alternative judicial pathway to circumvent the administrative adjudicating body with subject matter expertise. This is contrary to the legislative intent of maintaining judicial efficiency. The courts re-affirmed the imperative to avoid fragmenting or bifurcating an administrative process.[2]

The primary considerations to justify hearing a matter in instalments include:

1. Exceptional circumstances: In both applications, no exceptional circumstances were found.
2. Absence of an alternative remedy: If an applicant is unable to request an appeal or have its decision reviewed by the administrative body, there may not be an alternative remedy to adjudicating the matter in instalments. In the absence of an adequate alternative remedy, the court may consider hearing a matter in instalments. The Respondent provided a right of appeal and, as such, an adequate alternative remedy was available.

What is a “reasonable decision”?

In the landmark Supreme Court case, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (Vavilov), the standard of review governing administrative law was clarified and presumed to be the standard of reasonableness. Based on the standard of reasonableness, the reviewing court must be able to discern the substance of the decision and the rationale behind the administrator’s ruling. If the reviewing court can find that the administrator’s decision is supported by a sufficiently reasoned explanation, the Vavilovrequirement is met. If there is no reasoned explanation or an insufficiently reasoned explanation for the administrator’s decision, then the decision is deemed to be unreasonable.[3]

Vavilov aims to safeguard an administrator’s reasons from being reviewed on a standard of correctness. Two considerations determine whether an administrator’s reasons are deemed to be sufficient. First, the explanation is assessed on its adequacy.[4] The administrator’s reasons must demonstrate that all parties’ concerns were heard without a fundamental gap in reasoning. Second, the reasoning is assessed for logic, coherence and rationality.[5] The reviewing court must be satisfied that the administrator’s reasons do not consist of fatal flaws in its overarching logic or an unreasonable chain of analysis.

Takeaways

Alberta courts perceive premature applications for judicial review as litigation in instalments. In the absence of exceptional circumstances, the application will be considered premature if one has a right of appeal and the applicant has failed to exhaust the appeal process. Citing Merchant v Law Society of Alberta, 2008 ABCA 363, “if there is a clear right of appeal, and the appeal would be an adequate remedy, only in very exceptional circumstances will the courts grant judicial review instead.”

For more information about professional negligence actions in Alberta or Canada, please contact Kate Millar or another member of Dentons’ professional Liability group. 

[1] Robertson v Wasylyshen, 2003 ABCA 279 (CanLII) at para 19.

[2] Than v Law Society of Alberta, 2021 ABCA 139 at para 7.

[3] Vavilov at para 10.

[4] Fawcett at para 14.

[5] Ibid.