The Ontario Superior Court of Justice quashed an application for judicial review of a preliminary determination to proceed with a disciplinary hearing, on the grounds that such an application was premature

Administrative law – Decisions of administrative tribunals – Police – Investigations – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Judicial review – Delay – Failure to provide reasons – Judicial review application – Premature

Ackerman v. Ontario (Provincial Police), [2010] O.J. No. 738, 2010 ONSC 910, Ontario Superior Court of Justice, February 11, 2010, J.D. McCombs, S.N. Lederman and A.M. Molloy JJ.

The Applicant, a police officer with the Ontario Provincial Police Services, was suspended from duty on April 23, 2007 pending an investigation into allegations of misconduct. After an initial investigation determined that no criminal charges would be laid, there was a further investigation with respect to possible disciplinary proceedings. That investigation culminated in a report authored by the Professional Services Bureau, dated January 18, 2008. Pursuant to s. 69(18) of the Police Services Act, R.S.O. 1990, c. P-15, because more than six months had passed from the date of the complaint, the Professional Services Bureau sought approval from the Commissioner for service of a notice of hearing. The Commissioner delivered written reasons stating that in his opinion the delay in serving notice of the hearing was reasonable. The Applicant applied for judicial review of this preliminary determination to proceed with the hearing, on the basis that the Commissioner failed to provide adequate reasons for his decision and that the decision was not reasonable and not consistent with the evidence. The Respondent argued that the application for judicial review was premature.

The Court affirmed that as a general principle, a court will decline to exercise its discretion to judicially review a tribunal decision that was interlocutory or interim in nature and did not determine the rights of the parties. It was inconsistent with this principle to permit participants before an administrative review to ask the Divisional Court for judicial review prior to having exhausted all of their remedies and appeal routes within the administrative regime. Such applications result in increased cost for all concerned as well as considerable delay in what is meant to be a cost-effective and expeditious process.

The Court further held that a court may rarely consider a judicial review application while administrative proceedings are still ongoing. Such a review will only be conducted where there are exceptional circumstances. For example, judicial intervention may be warranted in situations where the tribunal clearly lacks jurisdiction to proceed, where the decision determines a particular issue, or where proceeding would result in an unfair hearing or a breach of natural justice.

In this case, the decision made by the Commissioner was clearly interlocutory and there were no exceptional circumstances that took the case outside the normal rule that administrative proceedings ought not be fragmented by bringing judicial review applications challenging interlocutory orders. Accordingly, the Court quashed the application as premature.

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