The City of Saskatoon; The Director of Assessment for the City of Saskatoon; Board of Revision (Saskatoon) Appellants (Respondents) v. Wal-Mart Canada Corp., 2019 SKCA 3

Court of Appeal for Saskatchewan Docket: CACV2844 Citation: Saskatoon (City) v Wal-Mart Canada Corp. , 2019 SKCA 3 Date: 2019-01-08 Between: The City of Saskatoon; The Director of Assessment for the City of Saskatoon; Board of Revision (Saskatoon) Appellants (Respondents) And Wal-Mart Canada Corp. Respondent (Applicant) Before: Jackson, Whitmore and Ryan-Froslie JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr.

Justice Whitmore In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Ryan-Froslie On Appeal From: 2016 SKQB 19 , Saskatoon Appeal Heard: March 20, 2018 Counsel: Kim M.K. Bodnarchuk for the Appellants Leonard D. Andrychuk, Q.C., and Riva Farrell Racette for the Respondent Whitmore J.A. I. Introduction [ 1 ] The City of Saskatoon [City] appeals the order of a judge of the Court of Queen’s Bench sitting in judicial review of a decision of the Board of Revision of the City of Saskatoon [Board]: Wal-Mart Canada Corp. v Saskatoon , 2016 SKQB 19 , 46 MPLR (5th) 207 [ Chambers Decision ].

For the reasons that follow, I would allow the appeal and set aside the decision of the Chambers judge. II. Background [ 2 ] Wal-Mart Canada Corp. [Wal-Mart] appealed the City’s 2014 assessment of its properties located in Saskatoon and raised a number of grounds of appeal before the Board, which the Chambers judge summarized as follows in the Chambers Decision : [18] The details of Wal-Mart’s notices of appeal … can be summarized more concisely as follows: (

a) the Assessor used dissimilar properties to determine the typical rental rate and capitalization rates for properties, including the subject properties, which are substantially in excess of the largest size threshold of 26,500 square feet in the model; (

b) the rental rate study and capitalization rate study were not adequate for a property of the subjects’ size or based on properties that are adequately comparable in size, quality or building design; and (

c) the Assessor erred in principle by using only new leases with commencement dates between 2008 and 2010 and thus ignored evidence of common data for properties substantially in excess of 26,500 square feet, which would be disproportionately affected by the lack of such data. [ 3 ] On May 7, 2014, prior to the Board hearing, Wal-Mart requested that the Director of Assessment for the City of Saskatoon [Assessor] provide the cost records for each property under appeal, rent data used to create the assessment model, and the corresponding assessed rent versus actual rent data. [ 4 ] Counsel for the City, responding on behalf of the Assessor, provided cost records for certain properties under appeal while inquiring about the relevancy of the request in reference to one property, stating that the rental and lease data were considered confidential, and the requested disclosure would breach the Assessor’s duty to maintain confidentiality.

Therefore, counsel for the City stated, the requested information could only be supplied if the Board issued an order declaring this information confidential and subject to a confidentiality agreement. Counsel requested further clarification in regard to the corresponding assessed rent versus actual rent data request. [ 5 ] Wal-Mart responded to the City and proposed an undertaking instead of a Board order of confidentiality.

In a letter dated May 20, 2014, the City stated the Assessor did not have some of the information requested and, therefore, the Board needed to give directions if the Assessor was required to create such records. The City also said the requested information was not all relevant to the notices of appeal and repeated its position that a Board order of confidentiality would be required before any material could be released. [ 6 ] Wal-Mart then requested that the Board grant a confidentiality order on May 21, 2014. The City wrote Wal-Mart on May 25,

2014, advising that Wal-Mart’s request exceeded what the Assessor was required to be disclosed. On May 28, 2014, the Board refused to issue an order to produce the data and refused to issue a confidentiality order. Counsel for Wal-Mart continued to request the data and offered a written undertaking of confidentiality. [ 7 ] On July 9, 2014, the parties convened before the Board for the hearing of the appeal proper. III. The Decision of the Board [ 8 ] At the outset of the hearing on July 9, 2014, Wal-Mart raised a preliminary objection: it was entitled to additional pre- hearing disclosure.

The Board considered this request and concluded Wal-Mart was entitled to some disclosure but dismissed its request for the remainder. In a decision dated July 25, 2014, entitled “DIRECTIONS” [ Board Decision ], the Board directed the following: Upon the application of counsel for the Appellant … and upon hearing counsel for the City of Saskatoon (the “ City ”), pursuant to sub- section 203(4) and

section 203.1 (

b) of The Cities Act (the “ Act ”): 1. The Panel of the Board of Revision (the “ Panel ”) concludes that the array of contract rents and tenant leasable area for the years 2008–2010 used by the Assessor, Les Smith, (the “ Assessor ”) to develop the Non-CBD Retail Rent Model (hereinafter collectively referred to as the “ Information and Records ”) relate to the matter on appeal. 2. The Assessor is hereby directed pursuant to sub-

section 203.1 (

b) of the Act to produce the Information and Records to the Appellant within 30 days from the date of this Direction. The Assessor shall produce the Information and Records to the Appellant in a digital or electronic format that is suitable for and which permits the Appellant to fully analyze the data which comprises the Information and Records. 3. Either the Assessor or the City may request that the Panel make a confidentiality order with respect to the Information and Records under

section 202 of the Act (a “ Request for Confidentiality Order ”). 4. A Request for Confidentiality Order must be in writing and must be filed with the Secretary of the Board of Revision (the “ Secretary ”) and served upon the Appellant within ten days from the date of this Direction. A Request for Confidentiality Order must set forth the grounds upon which the confidentiality order is being requested. 5. The Appellant shall be entitled to respond in writing to a Request for Confidentiality Order (a “ Response ”).

A Response must be filed with the Secretary and served upon the City within seven days from the date that the Appellant is served with a Request for Confidentiality Order. 6. The Secretary shall forthwith

schedule a date for the resumption of the appeal in consultation with the parties. (Bold emphasis in original) [ 9 ] The City appealed the Board Decision to the Saskatchewan Municipal Board (sitting as the Assessment Appeals Committee [Committee]). Although Wal-Mart did not obtain an order from the Board for all the information it requested, Wal-Mart did not appeal the Board Decision . IV. The Decision of the Assessment Appeals Committee [ 10 ] In dealing with the City’s appeal, the Committee determined that it did not have the jurisdiction to hear an appeal of the Board Decision .

The Committee’s position is contained in its November 7, 2014, letter to the City: A copy of this letter and further letter requesting the Board of Revision records for these properties was sent to [the Secretary], Saskatoon Board of Revision (the Board).

On October 29, 2014, [the Secretary’s office] advised the Committee that the Board had yet to hear the appeals on the above-noted properties. [The Secretary] also provided, “On July 25, 2014, the Board of Revision issued a ‘Direction’ on each of the above-listed appeals instructing the Assessor in the manner of material to be supplied to the parties and subsequent orders that may be issued as a result. A hearing date would then be scheduled”. The grounds of appeal to the Committee did not reflect the above status of the appeal at the Board level.

Section 216 of The Cities Act provides that any party to an appeal before a board of revision has a right of appeal to the appeal board in two circumstances: 1) respecting a decision of a board of revision; and 2) against the omission, neglect or refusal of a board of revision to hear or decide an appeal. In this instance, the Board has not issued a decision nor has it advised that it refused to hear or decide the appeal as required by

section 216 . As such, the Committee does not have jurisdiction to hear these appeals and consider them invalid. The appeal fees will be refunded under separate cover.

The Committee encourages the City and the Board to review the circumstances of this matter and work towards a resolution. It is recommended consideration be given to ensure the parties have the opportunity to exercise their right of appeal at the various levels. V. The Decision of the Court of Queen’s Bench [ 11 ] Wal-Mart then applied, by originating application, on September 18, 2015, to the Court of Queen’s Bench for relief from the Board Decision pursuant to Rule 3-49(1)(

g) of The Queen’s Bench Rules . Wal-Mart argued the Board breached its duty of fairness by failing to order pre-hearing disclosure and that it erred in law in interpreting its own statute regarding disclosure. [ 12 ] The City also brought an application to set aside the Board Decision .

The parties ultimately agreed that the Board Decision should be set aside but the City opposed the other relief sought by Wal-Mart, namely, the pre-hearing disclosure. [ 13 ] The Chambers judge concluded that while there is no specific statutory authority for pre-hearing disclosure, there is a right to obtain disclosure, generally, which extends to the pre-hearing process.

He found there is no restriction on the Board regarding when it may order disclosure, and the Legislature intended that confidential information could be disclosed. [ 14 ] He then considered the reasonableness of the Board Decision , and concluded the decision denying Wal-Mart additional disclosure should be quashed for being unreasonable on the basis that no reasons for such a refusal were provided. [ 15 ] The Chambers judge also addressed whether the Court of Queen’s Bench should be intervening given that Wal-Mart had not exhausted its remedies within the administrative process.

He concluded the remedies available to Wal-Mart were not adequate alternatives and there were exceptional circumstances that would justify early recourse to the courts. [ 16 ] The Chambers judge then made the following order: [103] To summarize, I order as follows: (

a) I order that the July 9 and July 25, 2015, directions or decisions of the BOR [Board] be quashed insofar as they denied Wal-Mart disclosure of the additional information it sought; (

b) I grant a declaration the BOR has the authority to order pre-hearing disclosure of information under the Act and at common law because a failure to so order could deny the appellants due process and a fair hearing of their appeal; (

c) While I decline to grant a declaration as to what specifically must be disclosed, I order the BOR proceed to hear an application to determine and decide what additional information is necessary to permit Wal-Mart to prepare and present its case with such necessity being assessed in accordance with the test I have outlined … above. VI. Jurisdiction [ 17 ] This Court has jurisdiction to hear this appeal pursuant to s. 7(2) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 . VII. Issues [ 18 ] The City appeals the order of the Chambers judge on the following grounds: (

a) the Chambers judge erred in law in holding that “the Board has the authority to order pre-hearing disclosure in an assessment appeal” under The Cities Act , SS 2002, c C-11.1 ; and (

b) the Chambers judge erred in law “as to the test for determining the extent of disclosure required in an assessment appeal” under The Cities Act , particularly the “disclosure of confidential information” and, in so doing, erred in law in quashing the Board Decision only insofar as the Board denied Wal-Mart disclosure of the additional information it sought. VIII.

A Preliminary Matter [ 19 ] During the hearing of this appeal, the Court raised an issue that had not been raised or argued by either party on appeal, namely, whether the Court of Queen’s Bench erred by assuming the authority to hear and decide this application for judicial review. The Court asked counsel for additional submissions on that issue. The issue is of particular importance in this case because of the way in which the matter was presented to the Chambers judge: i.e., the parties, for their own independent reasons and by agreement, wanted the Board Decision quashed, but each sought different remedies.

The City wanted the Board Decision quashed in its entirety and Wal-Mart wanted more disclosure than what the Board had ordered. A. Decision of the Chambers Judge on the Preliminary Matter [ 20 ] At the Court of Queen’s Bench Chambers hearing, the City agreed that the Board Decision should be set aside, but argued that the Court should not intervene to provide interim relief.

The City argued the “Wal-Mart judicial review application is premature because the [Board] has not yet decided the appeal and interlocutory decisions on procedural matters should not be subject to judicial review” ( Chambers Decision at para 48). The City further stated that Wal-Mart had not exhausted its remedies within the administrative

process and argued Wal-Mart should have proceeded with the hearing, subpoenaed witnesses and documents within the hearing, and exhausted its appeals after the final decision of the Board. [ 21 ] The Chambers judge first considered whether it was an adequate alternative remedy to appeal the interim decision: [89] It was not an adequate alternative remedy for Wal-Mart to appeal the interim decision. That was tried, and the Municipal Board’s response was that it did not believe it had the jurisdiction to hear an appeal on an interim ruling.

Thus, the parties came to the Court and are in agreement, correctly so in my opinion, that the interim decision of the BOR should be quashed, and I have so found. [ 22 ] Regarding the availability of other remedies, he then considered the City’s remaining arguments: [90] The City’s position is that among Wal-Mart’s alternatives are to, in effect, subpoena the Assessor calling for the documents that it wants disclosed within the process of the hearing. … [91] If the BOR were to decide against production in the context of subpoenaing documents from the Assessor within the hearing of the appeal, Wal-Mart has no effective right of appeal since the Municipal Board has already decided that it will not hear appeals other than from final decisions.

On the other hand, should the BOR decide to order production within the ongoing process of the hearing, that leaves the issue of whether that would be an adequate remedy since it does not deal with the central concern for Wal-Mart which is that without pre-hearing disclosure, it will not be able to adequately study the disclosure and organize their presentation as to why it says the model used and the resulting assessments are in error. [92] The City postulates that in such circumstances, it would be open to Wal-Mart to make an application for an adjournment.

That assumes the BOR would both order the full scope of the disclosure Wal-Mart seeks and also grant the application for adjournment.

If either is not granted, the Municipal Board will not hear an interlocutory appeal, and Wal-Mart will have to proceed with the hearing and then appeal what from its perspective will be an unacceptable result first to the Municipal Board, potentially on to the Court of Appeal, and then, if successful, return to the BOR to rehear the matter. [93] Such a convoluted process I find to be anathema to the concepts [of] access to justice and the foundational rules of this Court, which include the principles of identifying the real issues in dispute and facilitate the quickest means of resolving a matter at the least expenses. … [94] I have come to the conclusion that the alternatives that the City argues must first be exhausted are not in the circumstances of this case … equally effective alternative remedies.

What the City proposes has a high potential of becoming a morass of appeals and applications reminiscent of Charles Dicken’s Jarndyce and Jarndyce subplot in Bleak House . … The goals of efficiency and a fair process call for direction from the court at this stage. [95] This Court is in a much better position to decide what at its essence is a question of fundamental principles of natural justice – is Wal-Mart entitled as a matter of procedural fairness to the pre-hearing disclosure of information or documents which potentially might be relevant to and assist it in the presentation of its appeal?

It is my conclusion that the most efficient and practical manner to decide this issue is for this Court to decide.

If I am wrong, one appeal to the Court of Appeal will decide the matter before any hearing of the substance of the appeal occurs. [ 23 ] The Chambers judge determined that the circumstances were exceptional so as to justify early recourse to the court: [96] My conclusion is that the internal remedies available to Wal-Mart to address this matter are not effective alternative remedies and that the circumstances here are exceptional such as to justify early recourse to the court on a judicial review application. Accordingly, I go on to consider whether relief in the nature of declaration or mandamus is appropriate.

B. The Issue [ 24 ] I will frame the question surrounding the preliminary matter in terms of whether the Chambers judge erred by assuming jurisdiction to hear the application for judicial review. C. The Parties’ Positions on the Preliminary Matter 1. The City [ 25 ] The City argues that The Cities Act and The Municipal Board Act , SS 1988-89, c M-23.2 , are a complete code, containing comprehensive provisions regarding appeals, and that there are no gaps in this legislation.

Under the applicable provisions of the legislation, Wal-Mart could cross-examine the Assessor to test the City’s evidence and either party could appeal to the Committee on the basis of a lack of procedural fairness as one ground of appeal. In addition, a claim of breach of procedural fairness is a question of law for which leave to appeal may be sought from the Court of Appeal. [ 26 ] The City states the failure to pursue a statutory remedy usually precludes relief in judicial review applications for two reasons. First, the statutory remedy provides a better and less expensive solution than going to the courts.

Second, the statutory remedy may have been created to take the place of the extraordinary relief available through the exercise of the court’s general supervisory jurisdiction even where a decision is made in breach of the rules of natural justice or excess of jurisdiction. [ 27 ] The City distinguishes the present case from others where the Court of Queen’s Bench exercised its discretion to hear an application. The City argues that those decisions generally relate to issues where the Court of Queen’s Bench exercised its supervisory jurisdiction in the face of perceived gaps in the legislation.

The City states there are no such gaps in this case and that the Board was acting within its jurisdiction.

[ 28 ] In addition, the City states the existence of a right of appeal to a court is an important factor in considering whether there is an adequate alternative remedy to judicial review. While the existence of a right of appeal does not expressly prohibit the exercise of discretion, says the City, courts recognize that a statutory appeal represents a decision by the Legislature that consideration of a matter ought to be based on the full administrative record and a direction that, where leave is required, the courts ought to act as gatekeepers to control which appeals should be heard.

The City argues that, in this case, the legislative intent was to have assessment appeals heard first by the Committee and then by this Court, not for such appeals to go to the Court of Queen’s Bench. [ 29 ] Finally, the City argues that the application for judicial review was premature given the stage in the proceedings. Courts generally defer a determination of an allegation that an administrative decision-maker has no jurisdiction or breached the duty of fairness, until the appeal process is complete.

This is done to avoid fragmentation of the issues and to permit a reviewing court to have the benefit of the complete record and the tribunal’s expertise. The Board Decision was an interlocutory decision from which the Committee found it did not have jurisdiction to hear the appeal and, as a result, the application for judicial review was premature. According to the City, Wal-Mart should have gone through the procedure set out in the legislation rather than jumping over to the Court of Queen’s Bench to seek relief. The Court of Queen’s Bench should have declined jurisdiction. 2.

Wal-Mart [ 30 ] Wal-Mart takes the position that the Chambers judge properly exercised his discretion to hear the application for judicial review. Wal-Mart agrees that assessment appeals are normally heard first by the Committee and that this Court then acts as a gatekeeper to determine which appeals from the Committee ought to be heard.

However, in this case, Wal-Mart submits the Chambers judge did not undermine the structure by exercising his discretion because the present appeal relates to a matter of procedural fairness and natural justice and his decision to hear the application should be afforded deference. [ 31 ] Wal-Mart submits that, even if the application were premature, questions of procedural fairness are best addressed at this preliminary stage.

Given concerns for convenience and efficiency, Wal-Mart relies on the standard of correctness that applies to such questions and submits that fundamentally flawed processes should be addressed at this stage. Where an application raises questions of procedural fairness, this has proved to be the ultimate tipping point in a number of cases. [ 32 ] Wal-Mart then argues there was no adequate alternative remedy available to it. It agrees that The Cities Act is a complete code of the law of assessment and taxation in Saskatchewan, but argues it is not exhaustive in relation to the laws of natural justice and fairness.

Even if it is a complete code, says Wal-Mart, this does not mean that there is no room for judicial review and no gaps to be filled. While Wal-Mart concedes there is a right of appeal, it contends this right does not, in and of itself, oust a court’s ability to review the decisions of an administrative decision-maker, and this right must be read in conjunction with the remedies available to the Committee as an appellate body.

In this case, Wal-Mart states the Committee was not capable of curing the defect because it does not have the power to remit the matter to the Board for reconsideration. [ 33 ] Wal-Mart submits that unique and exceptional circumstances surround this application for judicial review: (

a) both parties sought judicial review; (

b) the claim of breach of procedural fairness is not limited to the Board, but extends to the Assessor; and (

c) the scope of disclosure is an outstanding issue and the subject of considerable dispute between the parties. D. Analysis [ 34 ] There are a number of discretionary grounds on which a court may refuse to undertake judicial review. These grounds include where there is an adequate alternative remedy or when the application is premature.

Sara Blake, in Administrative Law in Canada , 6th ed (Toronto: LexisNexis, 2017), identifies the difference between these: [9.49] A common thread is a judicial expectation that a party will fairly exhaust all statutory and administrative processes and, at the end, will not ask the court for review unless a judicial remedy may serve as a practical need. This goal may be approached from different perspectives. Prematurity recognizes that an issue on which a party is unsuccessful during the statutory process may become moot if the party is successful in the final result.

A focus on alternative remedies respects the other statutory forums in which a party may litigate the merits of the case. Mootness focuses on whether, at the end, there remains any practical need for a judicial remedy. A party’s failure to object promptly to a procedural error or reasonable apprehension of bias does not fairly allow the tribunal to address the problem.

Finally, misconduct of an applicant that caused problems in the administrative process may disentitle the applicant to a judicial remedy. [ 35 ] The relationship between adequative alternate remedy and prematurity was recently described by the Federal Court of Appeal in McDowell v Automatic Princess Holdings, LLC , 2017 FCA 126 , 148 CPR (4th) 1 [ McDowell ], as follows: [26] The Federal Court appears to have confused adequate alternate remedy and prematurity. The doctrine of adequate alternate remedy comes within the broader doctrine of prematurity, but they are not the same.

While both address the issue of fragmentation of administrative proceedings by untimely recourse to the courts, each addresses a slightly different issue. Adequate alternate remedy deals with the case of respecting the administrative scheme created by Parliament, as in C.B. Powell [2010 FCA 61]. Prematurity deals with preventing parties from delaying proceedings by coming to court for a remedy that may prove to be moot or overtaken when the tribunal renders its final decision.

Prematurity is best understood in the context of interlocutory decisions. [ 36 ] The law regarding these doctrines have recently been considered by this Court in Nadler v College of Medicine, University of Saskatchewan , 2017 SKCA 89 , 33 Admin LR (6th) 124 [ Nadler ]: [34] When an applicant seeks judicial review of a tribunal’s decision instead of, or in addition to, a right of appeal pertaining specifically to the tribunal in question, reviewing courts are generally reluctant to take up the matter until any such appeal is exhausted. In Canada

(Border Services Agency) v C.B. Powell Limited, 2010 FCA 61, 400 NR 367 [Powell], leave to appeal refused [2011] 3 SCR vi, StratasJ.A. describes the normal rule that applies in cases of this nature in these terms: [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrativeprocess have been exhausted.

The importance of this rule in Canadian administrative law is well-demonstrated by the large number ofdecisions of the Supreme Court of Canada on point: … [10 citations omitted]. [35] Prematurity is the term usually used to describe the doctrine applied when an applicant seeks judicial review of an interlocutorydecision in the administrative law context before the tribunal renders its decision or before the process can otherwise be considered at anend (see McDowell v Automatic Princess Holdings, LLC, 2017 FCA 126 at para 26).

The law that applies here, where administrativeappeal remedies exist, is usually described as the doctrine of exhaustion. But, as Stratas J.A. describes in Powell, the labels areimmaterial to the analytical framework: [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequatealternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutoryjudicial reviews and the objection against premature judicial reviews.

All of these express the same concept: absent exceptionalcircumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absentexceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue alleffective remedies that are available within that process; only when the administrative process has finished or when the administrativeprocess affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should notinterfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [36] In Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR 364, the SupremeCourt cited paragraphs 30 to 33 from Powell, saying that when judicial intervention is sought before an administrative process has run itscourse, “courts, while recognizing that they have discretion to intervene, have shown restraint in doing so …” (emphasis added, atpara 35). (Italic emphasis added by Jackson J.A.) [37] Therefore, in the absence of exceptional circumstances, courts should not interfere with ongoing administrative processes untilthe available effective remedies are exhausted or the proceedings have been completed.

I will herein refer to these two concepts asadequate alternative remedy and prematurity, respectively. [38] For the reasons that follow, it is my view that the Chambers judge erred in law: (

a) by not considering, when addressing the issue of adequate alternative remedy, whether judicial review was appropriate in abroader sense in light of the existing statutory framework; (

b) by not addressing the question of prematurity; and (

c) by otherwise finding that exceptional circumstances existed to justify judicial review. [39] Given these errors, the decision of the Chambers judge to exercise his discretion to hear the application for judicial reviewmust be set aside. 1. Adequate Alternative Remedy [40] The existence of an adequate alternative remedy is a discretionary ground for refusing to undertake judicial review: Stricklandv Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713 [Strickland].

In Huerto v Saskatchewan, 2008 SKCA 107, 311 Sask R288, this Court described this principle: [68] There are, of course, a variety of situations where the courts have declined to exercise their jurisdiction, or found that theirjurisdiction should not be exercised, because of the existence of parallel dispute resolution procedures. In the context of judicial review,it is well established that a court should not grant prerogative relief if the applicant has failed to pursue an adequate alternative remedy.See: Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561.

As well, the courts will not act when a legislaturehas established a comprehensive non-judicial system of dispute resolution in a particular area. See, for example, Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929. [41] It has been noted that “Canadian courts have enforced this general principle vigorously” (Toth Equity Limited v Ottawa (City),2011 ONCA 372 at para 35, 283 OAC 33 [Toth Equity]).

Relief may be refused even where the ground of review is the wrongful denialof a participatory right in breach of the duty of fairness (Harelkin v University of Regina, (SCC), 1979 2 SCR 561[Harelkin]) or is a substantial jurisdictional error (Canadian Pacific Ltd. v Matsqui Indian Band, (SCC), [1995] 1 SCR3 [Matsqui]). [42] As described by Donald J.M. Brown and John M.

Evans, in Judicial Review of Administrative Action in Canada, loose-leaf(Rel November 5, 2018) vol 2 (Toronto: Thomson Reuters, 2017) at para 3:2100 [Judicial Review], adequate alternative remedies are,generally speaking, other administrative remedies and other judicial proceedings: An applicant’s failure to pursue a statutory remedy will usually bar relief in judicial review proceedings if the other remedy is consideredto be an adequate alternative to judicial review. And in that regard, two main categories of alternative remedy can be identified: other

administrative remedies, and other judicial proceedings. Furthermore, the courts have recognized various subcategories within these twobroad groups. For example, alternative administrative remedies include reconsideration by the original decision-maker, an appeal to anindependent administrative tribunal, or a petition to Cabinet. Similarly, the alternative legal remedies include a right of appeal to a court,some other form of statutory judicial remedy, or an application for judicial review to the Federal Court.

Of course, any discretion toconsider the adequacy of an alternative remedy can be removed by statute. (Footnotes omitted) [43] In Strickland, the Supreme Court identified a number of considerations relevant to deciding whether an alternative remedy orforum is adequate: [42] The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as tojustify a discretionary refusal to hear a judicial review application.

These considerations include the convenience of the alternativeremedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; theexistence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relativeexpertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B.

Powell Limited v.Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31; Mullan, at pp. 430–31; Brown and Evans, at topics3:2110 and 3:2330; Harelkin, at p. 588. In order for an alternative forum or remedy to be adequate, neither the process nor the remedyneed be identical to those available on judicial review.

As Brown and Evans put it, “in each context the reviewing court applies the samebasic test: is the alternative remedy adequate in all the circumstances to address the applicant’s grievance?”: topic 3:2100 [italicemphasis added by Cromwell J.]. [43] The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of aparticular case: Matsqui, at paras. 36–37, citing Canada (Auditor General) [ (SCC), [1989] 2 SCR 49], at p. 96.Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similaritiesand differences between the potentially available remedies.

The inquiry is broader than that. The court should consider not only theavailable alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is notsimply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type ofbalance of convenience analysis: Khosa, [2009 SCC 12] at para. 36; TeleZone, [2010 SCC 62] at para. 56.

As Dickson C.J. put it onbehalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretionto grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant …”(Canada (Auditor General), at p. 96). [44] This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue:see, e.g., Matsqui, at paras. 41–46; Harelkin, at p. 595.

David Mullan captured the breadth of the inquiry well: While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affectedindividuals against the imperatives of the process under review. In particular, the courts focus on the question of whether the applicationfor relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes providedby that framework and the common law for challenging administrative action.

Where the application is unnecessarily disruptive ofnormal processes … the courts will generally deny relief [p. 447]. [45] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules. All relevantfactors, considered in the context of the particular case, should be taken into account. (Italic emphasis added by Cromwell J., underline emphasis added) [44] In addition to other administrative remedies, alternative legal remedies may include a right of appeal to a court.

Generally, thestatutory provision of a right of appeal prima facie indicates a legislative intention to exclude the courts’ exercise of their supervisoryjurisdiction: Pridgen v University of Calgary, 2012 ABCA 139, 350 DLR (4th) 1.

As stated by Jackson J.A. in Arch Transco Ltd. vRegina (City), 2002 SKCA 126, 483 Sask R 158, “One starts from the premise that the presence of a statutory right of appeal normallyresults in the denial of an order in the nature of a writ of certiorari” (citation omitted, at para 1). [45] That the appeal is conditional upon leave does not in and of itself render the remedy inadequate, even if leave is refused:Milner Power Inc. v Alberta (Energy and Utilities Board), 2007 ABCA 265, [2007] 12 WWR 389. This is because, where leave isrequired, the court performs a gatekeeping function (Judicial Review at para 3:2210).

In Delmas v Vancouver Stock Exchange (1995), (BC CA), 66 BCAC 200 (CA), Prowse J.A. explained this as follows: [43] In my view, the fact that an appeal lies to this Court only with leave of a justice of this Court does not detract from the fact that thereis an avenue of appeal to this Court should Mr. Delmas ultimately seek to pursue it. The leave requirement does not make the appealprocess a second-class right of appeal, but is designed to screen out cases without merit or moment.

It cannot be said that the requirementof leave, in itself, renders the statutory appeal process inadequate. [46] This brings me to a consideration of the present matter. In accordance with the above, the first question for the Chambersjudge to ask was whether Wal-Mart had an adequate alternative remedy outside of judicial review. [47] Before the Chambers judge, both Wal-Mart and the City took the position that the Court of Queen’s Bench, and therefore theChambers judge, could review decisions of the Board.

The City argued that because compliance with the Board’s decision would breachstatutory confidentiality obligations and operate as a final decision, the Board Decision should be set aside. However, it argued that Wal-Mart should not be granted additional or any relief because judicial review should not be permitted in respect of an interim decision andbecause Wal-Mart needed to exhaust its internal remedies before seeking judicial review. [48] To answer the City’s argument, the Chambers judge reviewed the law as canvassed in Canada (Border Services Agency) vC.B.

Powell Limited, 2010 FCA 61, 400 NR 367 [Powell], leave to appeal refused [2011] 3 SCR vi. He then properly focused on whether

Wal-Mart had an adequate alternative remedy, considering two possible options: (

a) appealing the interim decision to the Committee; and (

b) internal remedies proposed by the City, namely, (

i) proceeding with the hearing; (ii) subpoenaing witnesses and documents within the hearing and applying for an adjournment if necessary; and (iii) if unsuccessful, Wal-Mart exhausting its appeals after the Board’s decision on the appeal proper. [ 49 ] The Chambers judge found that neither constituted an adequate alternative remedy for Wal-Mart. He first found that an appeal to the Committee had been tried, and the Committee responded it did not have jurisdiction: [89] It was not an adequate alternative remedy for Wal-Mart to appeal the interim decision.

That was tried, and the Municipal Board’s response was that it did not believe it had the jurisdiction to hear an appeal on an interim ruling.

Thus, the parties came to the Court and are in agreement, correctly so in my opinion, that the interim decision of the BOR should be quashed, and I have so found. [ 50 ] The Chambers judge then turned to the internal alternatives asserted by the City and he, again, found these did not constitute adequate alternative remedies (for ease of reference, I repeat these portions of his decision): [90] The City’s position is that among Wal-Mart’s alternatives are to, in effect, subpoena the Assessor calling for the documents that it wants disclosed within the process of the hearing.

The BOR will then have to decide whether those documents should be ordered to be produced in the face of the City and Assessor’s position that they are privileged and not susceptible to being ordered to be produced and/or that they are not relevant to the appeal (as the City argues on this application). The BOR has already made the decision that other than rent rates and lease areas, the additional information sought by Wal-Mart would not be produced.

Unfortunately, without the BOR having given reasons, I do not know whether the BOR so decided because they concluded confidentiality prevailed, because the documents were not relevant or for other reasons should not be disclosed. The Committee has already held that the Assessor is obliged to disclose confidential data to a party to an appeal “if necessary for the party to prepare and present its case”. This decision is under appeal. However, in my opinion, that was a correct conclusion.

It, however, leaves unanswered the specific question of what information is necessary for a party to prepare and present a given appeal. [91] If the BOR were to decide against production in the context of subpoenaing documents from the Assessor within the hearing of the appeal, Wal-Mart has no effective right of appeal since the Municipal Board has already decided that it will not hear appeals other than from final decisions.

On the other hand, should the BOR decide to order production within the ongoing process of the hearing, that leaves the issue of whether that would be an adequate remedy since it does not deal with the central concern for Wal-Mart which is that without pre-hearing disclosure, it will not be able to adequately study the disclosure and organize their presentation as to why it says the model used and the resulting assessments are in error. [92] The City postulates that in such circumstances, it would be open to Wal-Mart to make an application for an adjournment.

That assumes the BOR would both order the full scope of the disclosure Wal-Mart seeks and also grant the application for adjournment.

If either is not granted, the Municipal Board will not hear an interlocutory appeal, and Wal-Mart will have to proceed with the hearing and then appeal what from its perspective will be an unacceptable result first to the Municipal Board, potentially on to the Court of Appeal, and then, if successful, return to the BOR to rehear the matter. [93] Such a convoluted process I find to be anathema to the concepts [of] access to justice and the foundational rules of this Court, which include the principles of identifying the real issues in dispute and facilitate the quickest means of resolving a matter at the least expenses.

Among the policy reasons for the principle that internal remedies should be exhausted before coming to the courts is the concept that this approach will eliminate the 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. [94] I have come to the conclusion that the alternatives that the City argues must first be exhausted are not in the circumstances of this case … equally effective alternative remedies.

What the City proposes has a high potential of becoming a morass of appeals and applications reminiscent of Charles Dicken’s Jarndyce and Jarndyce subplot in Bleak House . The policy goal behind the principle that internal remedies should first be exhausted is the overall efficiency of the administrative law process. In my assessment, that policy goal will not be achieved by requiring Wal-Mart to exhaust all possible internal remedies before coming to this Court. This Court is best positioned to provide at this stage the decisions and directions necessary to ensure that Wal-Mart receives a fair process.

The goals of efficiency and a fair process call for direction from the court at this stage. He ultimately concluded that the internal remedies available were not effective alternative remedies and chose to hear the application. [ 51 ] In my view, the Chambers judge erred in his approach by failing to take the required broader view of the issue.

The dictum in Strickland necessitates a consideration of whether “an application for relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes provided by that framework and the common law” ( Strickland at para 44 , quoting David Mullan, “The Discretionary Nature of Judicial Review”, in Robert J. Sharpe and Kent Roach, eds, Taking Remedies Seriously: 2009 (Montréal: Canadian Institute for the Administration of Justice, 2010) at 447). The question before the Chambers judge was not simply whether the City’s proposed alternatives were adequate.

Instead, the inquiry was broader, and the Chambers judge was required to consider whether judicial review was appropriate in these circumstances, accounting for the purposes and policy considerations underpinning the assessment appeal scheme (see Strickland at para 43 ). The Chambers judge focused on the efficacy and convenience of the City’s proposed alternatives, but did not orient and analyze these alternatives within the broader statutory scheme created by the Legislature. In so doing, he did not undertake the mandated inquiry and thus erred.

[ 52 ] Given this error, it is necessary for me to decide whether Wal-Mart had an adequate alternative remedy. I am required to consider not only the available alternatives, but also the suitability and appropriateness of judicial review in these circumstances. This analysis is not simply a matter of following a checklist.

The relevant factors from Strickland , including the “purposes and policy considerations underpinning the statutory scheme” (at para 44), must also be taken into account. [ 53 ] With that in mind, I turn to whether proceeding with the hearing before the Board, and subsequently appealing to the Committee and then this Court, was an adequate alternative for Wal-Mart. First, parties may appeal from property assessments to the Board in accordance with s. 197 of The Cities Act .

On such appeals, parties establish the issues and the evidentiary record before the Board, which in turn establishes “ the record for a second-level appeal to the Committee …” (emphasis in original, Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 at para 46 , 73 MPLR (5th) 1 [ Corman Park ]). In Corman Park , Caldwell J.A. described the role of the Board: [48] … In terms of function, boards of revision serve as akin-to-trial decision-makers in circumstances where an assessment is deemed to be correct until proven otherwise.

That is, they make findings of fact on the basis of the evidence adduced, interpret the law relating to the specific errors raised in the notice of appeal and then apply that law to the facts as found to reach their decision as to whether the assessor has erred in a material way [ 54 ]

Section 216 of The Cities Act then provides a broad right of appeal to the Committee from decisions of the Board. The Committee, in turn, has the “authority to hear and determine any question of fact or law as to matters within its jurisdiction” ( The Municipal Board Act , s 20(1)). Appeals to the Committee are, in general terms, limited to the record of the proceedings before the Board ( The Cities Act , s 222; see also City Centre Equities Inc. v Regina (City) , 2018 SKCA 43 at para 82 , 75 MPLR (5th) 179 [ City Centre Equities ]).

The Committee fulfills a traditional appellate role, reviewing Board decisions for error, and applies a standard of review of reasonableness to Board decisions in respect of questions of fact and mixed fact and law, where there is no extricable question of law ( City Centre Equities at paras 98–101 ). [ 55 ] However, the Committee is empowered by s. 223 of The Cities Act to hear new evidence in certain circumstances: New evidence 223

(1) The appeal board shall not allow new evidence to be called on appeal unless it is satisfied that: (

a) through no fault of the person seeking to call the new evidence, the written materials and transcript mentioned in

section 220 are incomplete, unclear or do not exist; (

b) the board of revision has omitted, neglected or refused to hear or decide an appeal; or (

c) the person seeking to call the new evidence has established that relevant information has come to the person’s attention and that the information was not obtainable or discoverable by the person through the exercise of due diligence at the time of the board of revision hearing.

(2) If the appeal board allows new evidence to be called pursuant to subsection (1), the appeal board may make use of any powers it possesses pursuant to The Municipal Board Act to seek and obtain further information.

Where such circumstances exist, the Committee may allow new evidence to be called and may then exercise its powers under The Municipal Board Act , such as requiring employees of the Saskatchewan Assessment Management Agency, appraisers, assessors, and “other municipal officials to make any returns to the [Committee] with respect to any matter affecting assessment and taxation …” ( The Municipal Board Act , s 20(2); see also Corman Park at para 60–67 ; or City Centre Equities at paras 77–82 ). [ 56 ] The final step in the statutory scheme is an appeal to this Court.

Section 33.1 of The Municipal Board Act establishes a right of appeal, with leave, to this Court on questions of law or jurisdiction by any person “affected by an order, decision or determination” of the Committee. On such appeals, this Court applies a standard of review of correctness: Gary L. Redhead Holdings Ltd. v Swift Current (Rural Municipality) , 2017 SKCA 47 at para 88 , [2017] 9 WWR 296. Subject to an appeal to the Supreme Court of Canada with leave ( Supreme Court Act , RSC 1985, c S-26 , s 40), appeals to this Court mark the end of the assessment appeal process designed by the Legislature.

These statutory rights prima facie indicate a legislative intention to exclude the Court of Queen’s Bench’s supervisory jurisdiction while the administrative process is ongoing. [ 57 ] This statutory appeals process must then be contextualized by looking at the statutory scheme itself and the purposes and policy considerations reflected therein.

Justice Caldwell described, in general, the statutory scheme created by The Municipalities Act , SS 2005, c M-36.1 , in Corman Park : [11] In general terms, The Municipalities Act provides for annual assessment and taxation of real property in a municipality, although the Act also addresses municipal governance and other matters. Local government authorities, such as municipalities, school boards and libraries, depend upon municipal property taxes as their primary source of revenue.

Municipalities establish annual mill rates or tax rates on the basis of their projected fiscal requirements and the aggregate assessed value of all taxable property within the municipality. For reasons of certainty in terms of amount and receipt of tax revenue, The Municipalities Act sets out steps that municipalities and assessors must take annually to assess properties and it establishes deadlines for the completion of those steps. It also establishes rights of appeal and deadlines for taxpayers, municipalities and SAMA to appeal against property tax assessments.

The relevant provisions are found under Parts X (Assessment) and XI (Taxation) of The Municipalities Act . (Footnote omitted) These comments are “axiomatically applicable to the two other municipal Acts” ( Corman Park at para 7 ): namely, The Cities Act and

The Northern Municipalities Act, 2010, SS 2010, c N-5.2. [58] Together with The Municipal Board Act, The Cities Act “sets out a comprehensive scheme for assessment and taxation ofproperty in a [city] with express, but time-limited, rights of appeal” (Corman Park at para 14). Within this scheme, one of the objectivesis timeliness in meeting “an ultimate annual objective” (Regina (City) v Newell Smelski Ltd. (1996), (SK CA), 152Sask R 44 (CA) at para 38). Further, The Cities Act, as alluded to in Corman Park, is structured to encourage finality in assessments andin the assessment roll.

As such, the Legislature’s intention is that “the process of property assessment and taxation should occur largelywithin a calendar year” (Corman Park at para 30), including the appeal process. [59] In considering whether judicial review is appropriate in these circumstances, another relevant factor is the relative expertise ofthe alternative decision-maker: here, the Committee and this Court in contrast to the Court of Queen’s Bench. As noted above, thestatutory appeal process is routed first through the Board, then to the Committee and, ultimately, to this Court.

At no point in this processdo normal assessment appeals go through the Court of Queen’s Bench. Instead, the Legislature decided to create a specialized appealprocess that ends at this Court. For this reason, expertise in assessment appeals rests primarily with the Committee and, subsidiarily, withthis Court and not with the Court of Queen’s Bench. [60] In my view, in light of the statutory framework created by the Legislature for assessment appeals, judicial review in thecircumstances of this case was not appropriate.

Or, in other words, proceeding with the statutory process set out in The Cities Actconstituted an adequate alternative remedy for Wal-Mart. [61] In saying this, I recognize that the nature of the error alleged by Wal-Mart, and the expediency of going to the Court ofQueen’s Bench as opposed to awaiting the Board’s final decision, may suggest otherwise. However, on balance, judicial review was notappropriate in these circumstances. The Legislature has crafted a specialized appeals process that is specifically designed to considerassessment appeals.

It was within this forum that litigation was already taking place, and recourse was available in that forum uponappeal of the Board’s decision. This specialized process is intended to move matters along quickly, within a calendar year, and allowinga judicial review application to proceed in these circumstances only prolongs the process. [62] Wal-Mart also argues that an appeal to the Committee cannot be an adequate alternative remedy. It says the Committee is notcapable of curing the defect because it does not have the power to remit the matter to the Board for reconsideration.

While there is somemerit to this contention, I cannot accept it for the following reasons. [63] I acknowledge that the Committee’s corrective powers are expressly set out in The Cities Act, and those corrective powers donot include remitting the matter to the Board: Decisions 226(1) After hearing an appeal, the appeal board may: (

a) confirm the decision of the board of revision; (

b) modify the decision of the board of revision to ensure that: (

i) errors in and omissions from the assessment roll are corrected; and (ii) an accurate, fair and equitable assessment for the property is placed on the assessment roll; or (

c) set aside the assessment and remit the matter to the assessor to ensure that: (

i) errors in and omissions from the assessment roll are corrected; and (ii) an accurate, fair and equitable assessment for the property is placed on the assessment roll. Per Caldwell J.A. in Corman Park, the Committee “may only do one of [these] three things” (at para 25). [64] Yet, this is not the end of the matter. As stated in Strickland, “In order for an alternative forum or remedy to be adequate,neither the process nor the remedy need be identical to those available on judicial review” (at para 42).

Instead, the test is whether thealternative remedy is “adequate in all the circumstances to address the applicant’s grievance” (emphasis added by Cromwell J.,Strickland at para 42, citing Judicial Review at topic 3:2100). Therefore, the fact that the Committee, unlike the Chambers judge, is notempowered to remit the matter to the Board is not determinative. [65] What matters instead is whether the Committee, upon an appeal from a final decision of the Board on the merits, would beable to address Wal-Mart’s grievance.

The Committee is empowered by s. 20(1) of The Municipal Board Act to hear and determine anyquestion of law; this power would include the ability to hear and determine issues of procedural fairness, when raised on appeal. Fromthis, lack of procedural fairness would be a ground of appeal from the Board’s decision upon which Wal-Mart could appeal to theCommittee. [66] The lack of disclosure complained of by Wal-Mart is, of course, an issue that affects the record that was before the Board andwould then be before the Committee pursuant to s. 220 of The Cities Act.

Given that appeals to the Committee are determined on therecord and the Committee’s traditional appellate role, a cursory review suggests the Committee would, therefore, not be able to provideWal-Mart with a remedy and that there is a gap in the Committee’s authority. But the Legislature has crafted an exception that allowsnew evidence to be called on appeals. [67] This exception, contained in s. 223 of The Cities Act, set out above, allows new evidence to be called in three differentcircumstances. Subsection 223(1)(

c) permits the Committee to allow new evidence to be called on appeal if it is satisfied that “the

person seeking to call the new evidence has established that relevant information has come to the person’s attention and that the information was not obtainable or discoverable by the person through the exercise of due diligence at the time of the board of revision hearing” (emphasis added).

In such circumstances, the Committee is then authorized to use its powers under The Municipal Board Act to “seek and obtain further information” (s. 223(2)). [ 68 ] In my view, this exception, paired with the Committee’s authority under s. 20(2) of The Municipal Board Act , would enable the Committee to consider and, if necessary, address Wal-Mart’s disclosure grievance in an appeal. If the Committee’s ruling was not favourable to Wal-Mart, then it could seek leave to appeal to this Court.

While this remedy is not identical to the one that could be provided by the Court of Queen’s Bench, it is adequate to address Wal-Mart’s grievance. As it is not necessary to resolve this appeal, I make no comment on the ability of the Committee to hear interim appeals or to address such an issue at an interim stage. [ 69 ] For these reasons, I conclude that Wal-Mart had an adequate alternative remedy available, and that judicial review was not appropriate in these circumstances.

Judicial review in these circumstances undermines the purpose of the legislation and taxes judicial resources, particularly where the parties are able to challenge tax assessments every year. While this may be considered a “convoluted process” by the Chambers judge (at para 93), it is the one the Legislature has selected. Had Wal-Mart followed the procedure set out in the legislation, the Board may well have resolved the assessment appeal in its favour.

Failing that, Wal-Mart could have sought a remedy before the Committee or before this Court, where the matter of disclosure could have been resolved. [ 70 ] This is not to say an application for judicial review can never be entertained.

A future applicant may be able to demonstrate that judicial review is appropriate when applying to the Court of Queen’s Bench or on appeal to this Court or, as will be discussed below, that there are exceptional circumstances justifying recourse to the courts. [ 71 ] The Chambers judge’s error in not considering fully the adequate alternative remedies is an error in principle justifying intervention by this Court.

Further, as I discuss below, the Chambers judge erred by failing to consider the prematurity of the application and the appeal rights that would be triggered once the appeal was determined on the merits. 2. Prematurity [ 72 ] Similarly, prematurity may act as a discretionary bar to applications for judicial review. As stated in McDowell , “Prematurity deals with preventing parties from delaying proceedings by coming to court for a remedy that may prove to be moot or overtaken when the tribunal renders its final decision” (at para 26).

Courts should refuse to entertain an application for judicial review where the decision from which review is sought is interlocutory or interim in nature and does not finally determine the rights of the parties.

Judicial review of interlocutory decisions should only be undertaken “in the most exceptional of circumstances” ( Greater Moncton International Airport Authority v Public Service Alliance of Canada , 2008 FCA 68 at para 1 ; see also Powell at para 33 ). [ 73 ] In “Developments in Remedial Discretion on Judicial Review: Prematurity and Adequate Alternative Remedies” (2017) 30 CJALP 1, Gerald Heckman describes prematurity as follows (at 5): While an applicant for judicial review may have a strong case, judicial intervention at an early stage in the decision-maker’s proceedings may be “premature” and thus inappropriate.

Prematurity is usually raised where a party challenges the legality of interim or interlocutory decisions, including decisions of a procedural nature, such as orders for the admission or disclosure of certain evidence, and decisions of a substantive nature, like a labour adjudicator’s decision, under the Canada Labor Code , that a dismissed employee is not disqualified by any statutory exceptions from bringing forward an unjust dismissal claim ([ Canada Labor Code ,] R.S.C. 1985, c. L-2 , ss 240(1), s 242(3.1)).

Several considerations might factor into a court’s decision to decline a pre-emptive ruling (see Van Harten, Heckman, Mullan & Promislow, [ Administrative Law – Cases, Text and Materials, 7th ed (Emond: Toronto, 2015)] note 10 at 1066). The issue may be dealt with or remedied by the tribunal later in the proceedings or on a statutory appeal.

The tribunal may have greater relative expertise than the reviewing court regarding the issue; reluctance to intervene in such circumstances is “consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge” ( C.B. Powell Ltd. c. Canada (Agence des services frontaliers) , 2010 FCA 61 , 2010 CarswellNat 1197, 2010 CarswellNat 391 (F.C.A.) at para. 32 ).

Encouraging early recourse to the courts may fragment the administrative proceedings, frustrate the statutory objectives of the administrative regime or tax judicial resources. Early judicial review may also deprive the court of the decision-maker’s careful accumulation and analysis of an evidentiary record – an important consideration given the evidentiary limitations of judicial review proceedings (see Halifax (Regional Municipality) v.

Nova Scotia (Human Rights Commission) , 2012 SCC 10 , 2012 CarswellNS 124, 2012 CarswellNS 125 (S.C.C.) at para. 36 ) – findings that may be “suffused with expertise, legitimate policy judgments and valuable regulatory experience” (Powell, supra , note 16, at para. 32.). [ 74 ] In Wal-Mart Canada Corp. v UFCW Local 1400 , 2010 SKCA 89 , [2010] 9 WWR 387, Richards J.A. (as he then was) explained why courts are generally reluctant to review interim decisions.

Although writing in the context of a labour matter, his comments have relevance here: [20] In general, there are compelling reasons why courts should be reluctant to review interim or non-final decisions of administrative tribunals. Richard Charney and Thomas Brady outline these reasons in Judicial Review in Labour Law, loose-leaf (Aurora: Canada Law Book; Rel.: December 2007) at para. 15.80: 15.80 Applications for judicial review brought prior to the release of a final decision have frequently been rejected by the courts on the ground of prematurity. A combination of factors provides the basis for such a result.

First, judges are reluctant to delay the proceedings of labour relations tribunals by entertaining (or encouraging) judicial review applications concerning interim decisions. Second, the court’s time may be used more efficiently if all possible grounds for judicial review are dealt with in one proceeding and hearing. Third, the application may become moot or hypothetical, depending on the tribunal’s disposition of the case.

Fourth, on occasion, technical considerations arising under the particular jurisdiction’s labour relations statute or rules of procedure justify rejection of a judicial review application for prematurity. See also: Brown and Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback Publishing) at

s. 1:2241. [21] The fragmentation of proceedings is a particularly important consideration in the labour relations context because delay can oftenfrustrate the policy objectives of The Trade Union Act. Vancise J.A. explained the point as follows in Saskatchewan Union of Nurses v.Sherbrooke Community Centre (1996), (SK CA), 144 Sask. R. 15 (Sask. C.A.) at para. 3: [3] In general we agree with the principles set out in University of Toronto v. Canadian Union of Education Workers, Local 2 (1988), (ON SC), 28 O.A.C. 295 (Div. Ct.) which was confirmed in Placer Dome Inc. Dona Lake Mine v.

UnitedSteelworkers of America, Local 8533 et al. (1994), 69 O.A.C. 388 (Div. Ct.), that courts should discourage the interruption of labourrelations matters, in particular discipline hearings by declining to hear judicial review applications of interim decisions. The overridingprinciple is that the matters should be heard with as little delay as possible. This case is proof positive the fragmentation of proceedingsis a sure recipe for delay and potentially for the denial or defeat of the rights of the parties.

Reviewing courts should be slow to accede torequests to review interim decisions of administrative tribunals. (Italic emphasis added by Richards J.A.) [75] In the assessment appeal context, Jackson J.A. denied an application for leave to appeal in 101053945 Saskatchewan Ltd. vSherwood (Rural Municipality), 2008 SKCA 86, 311 Sask R 306, on the basis that it was premature: [14] Overall what strikes me about this application is that it arises in relation to an interlocutory decision of the Committee.

Section 33.1of The Municipal Board Act permits any person affected by an “order, decision or determination” of the Committee to apply for leave toappeal. I do not need to decide if the wording of s. 33.1 of The Municipal Board Act permits leave to appeal to be granted in relation to aninterlocutory decision. It is sufficient to note that there are strong policy reasons why leave should not be granted, as a general rule, inrelation to such a decision. See: Howe v. Institute of Chartered Accountants of Ontario [(1994), (ON CA), 74 OAC 26(CA)] and David J.

Mullan Administrative Law [(Irwin Law: 2001) at 481–494]. [15] Interlocutory appeals provide little background by which to assess the effect of the decision on the proceedings taken as a whole.Granting leave in relation to an interlocutory decision also bifurcates the proceeding before the Committee and this Court. The Courtmay as a consequence be asked to address the same fact pattern twice, first, on review of the interlocutory decision, and then, a secondtime, if leave is granted, after the Committee has heard the matter on its merits.

After the Committee hears the appeal on its merits, theremay no longer be any need to hear any appeal as the applicants may be satisfied with the result or the matter may otherwise becomemoot. Further, granting leave in relation to an interlocutory decision of the Committee adds to the cost of litigation, and will lead to delayand complexity in the practice before the Committee and before this Court. [76] Although the issue of prematurity was before the Chambers judge in this case, he does not appear to have directly confrontedit.

He summarized the position of the City as follows (Chambers Decision): [4] The City says the BOR has no jurisdiction under the [The Cities Act] to order disclosure of confidential information and, in any event,there should not be pre-hearing disclosure because the information and data Wal-Mart seeks disclosure of is confidential information andis not necessary for Wal-Mart to have an effective right of appeal.

It says further that if a right to disclosure exists, the application ispremature and Wal-Mart has failed to exhaust its alternative remedies, as it should, before seeking judicial review to obtain suchdisclosure. [77] Apart from this paragraph, the Chambers judge did not refer to the doctrine of prematurity. He focused on the issue ofadequate alternative remedy to the apparent exclusion of prematurity.

The best example of this is the following passage (repeated herefor ease of reference): [93] Such a convoluted process I find to be anathema to the concepts [of] access to justice and the foundational rules of this Court, whichinclude the principles of identifying the real issues in dispute and facilitate the quickest means of resolving a matter at the least expenses.Among the policy reasons for the principle that internal remedies should be exhausted before coming to the courts is the concept thatthis approach will eliminate the costs and delays associated with premature forays to court and avoids the waste associated with hearingan interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process. [94] I have come to the conclusion that the alternatives that the City argues must first be exhausted are not in the circumstances of thiscase … equally effective alternative remedies.

What the City proposes has a high potential of becoming a morass of appeals andapplications reminiscent of Charles Dicken’s Jarndyce and Jarndyce subplot in Bleak House. The policy goal behind the principle thatinternal remedies should first be exhausted is the overall efficiency of the administrative law process. In my assessment, that policy goalwill not be achieved by requiring Wal-Mart to exhaust all possible internal remedies before coming to this Court. This Court is bestpositioned to provide at this stage the decisions and directions necessary to ensure that Wal-Mart receives a fair process.

The goals ofefficiency and a fair process call for direction from the Court at this stage. (Emphasis added) [78] While the Chambers judge mentioned “premature” in paragraph 93 of his decision, he did so in the context of the policiesinforming the adequate alternative remedy issue. In his reasons, the Chambers judge did not separately analyze whether the applicationwas premature and the effect this had on his exercise of discretion.

This is reflected in his conclusion, which referred only to adequatealternative remedies and exceptional circumstances: [96] My conclusion is that the internal remedies available to Wal-Mart to address this matter are not effective alternative remedies andthat the circumstances here are exceptional such as to justify early recourse to the court on a judicial review application.

Accordingly, Igo on to consider whether relief in the nature of declaration or mandamus is appropriate. [79] It appears the Chambers judge, like the Federal Court in McDowell, confused adequate alternative remedy and prematurity bytreating them as one doctrine. In my view, in the circumstances of this case, this constitutes a reviewable error.

[80] Although adequate alternative remedy and prematurity share a similar analytical framework, they are separate. Adequatealternative remedy addresses the case of respecting the administrative scheme created by the Legislature, while prematurity deals withpreventing parties from delaying proceedings by coming to a court for a remedy that may prove to be moot or overtaken by a tribunal’sfinal decision.

The Chambers judge focused on whether there was an adequate alternative remedy, but does not appear to haveappreciated the ramifications of the prematurity of the application. [81] In my view, it was premature for the Chambers judge to intervene at this stage of the proceedings. The issue of disclosuremay be dealt with later in the administrative proceedings or, with leave, by this Court on appeal from the Committee.

As stated in Powell,the decision not to intervene is “consistent with and supports the concept of judicial respect for administrative decision-makers who, likejudges, have decision-making responsibilities to discharge” (at para 32). The bottom line here is that if this matter proceeds through theadministrative process, the issue of disclosure may well be dealt with, leaving the matter moot. [82] The Chambers judge, instead, seemed to address the prematurity issue by finding that exceptional circumstances existed tojustify early judicial review.

Consequently, I will address whether he erred by finding there were exceptional circumstances as, even ifthe application was premature, judicial review could still be undertaken in exceptional circumstances (see Powell at para 31). 3. Exceptional Circumstances [83] The next question, therefore, is whether the Chambers judge erred by finding Wal-Mart had established there wereexceptional circumstances to justify it proceeding to apply for judicial review, despite its prematurity, and prior to exhausting all itsremedies pursuant to the administrative process.

It is my view that, while the Chambers judge initially cited the correct law, heultimately erred in the standard he applied when considering whether there were exceptional circumstances. In so doing, he erred inprinciple. [84] While the existence of an adequate alternative remedy or an interlocutory or interim decision may act as a discretionary bar tojudicial review, judicial review may be undertaken, regardless, in exceptional circumstances.

This standard is high: “the authorities showthat very few circumstances qualify as exceptional and the threshold for exceptionality is high” (Powell at para 33) – see also TothEquity. In Powell, Stratas J.A. spoke further to exceptional circumstances: [33] … Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunctionagainst administrative decision-makers before or during their proceedings.

Concerns about procedural fairness or bias, the presence of animportant legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptionalcircumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effectiveremedy to be granted ….

As I shall soon demonstrate, the presence of so-called jurisdictional issues is not an exceptional circumstancejustifying early recourse to courts. [85] In Black v Canada (Attorney General), 2013 FCA 201, 448 NR 196, the Federal Court of Appeal stated that to justify judicialintervention the “circumstances must be truly exceptional” (at para 10) and noted that the allegation of a jurisdictional error does not, inand of itself, “constitute an exceptional circumstance which justified a pre-emptive recourse to judicial review” (at para 11): see also AirCanada v Lorenz, (FC), [2000] 1 FC 494. [86] Concerns about procedural fairness and natural justice do not typically qualify as exceptional circumstances (see AvivaCanada Inc. v Taylor, 2017 ONSC 2661 at para 23, 67 CCLI (5th) 71 (Div Ct); and BP Canada Energy Company v Alberta, 2003ABQB 875 at para 40, 356 AR 363): for example, “neither a breach of natural justice nor a question of true jurisdiction entitles anaggrieved party to automatic access to the courts” (Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541, 111 OR (3d)561). [87] In the Chambers Decision (at paras 30–33), the Chambers judge correctly cited Powell, but went on to describe the lawregarding exceptional circumstances as follows: [88] This

summary of the law acknowledges that the principle may not apply where there are exceptional circumstances, withoutdefining what exceptional circumstances are. David P. Jones & Anne S. de Villars in their respected text Principles of AdministrativeLaw, 6th ed (Toronto: Carswell, 2014), are not so doctrinaire.

While acknowledging the general principle, they state at pages 691–92 thatcourts will refuse to exercise their discretion to refuse a prerogative remedy when there is an equally effective alternative remedyavailable to the applicant, citing the Supreme Court of Canada’s decisions in Canadian Pacific Ltd. v Matsqui Indian Band, (SCC), [1995] 1 SCR 3, and R v Dubois, (SCC), [1986] 1 SCR 366, as instances where the alternative remedy wasfound to be inadequate.

The authors state: “On the other hand, when the appeal would be of little value and the result must be clear, thecourt may grant the relief and thereby avoid further proceedings and expense” [Principles of Administrative Law at 602]. He then concluded that there were exceptional circumstances in this case: [96] My conclusion is that the internal remedies available to Wal-Mart to address this matter are not effective alternative remedies andthat the circumstances here are exceptional such as to justify early recourse to the Court on a judicial review application.

Accordingly, Igo on to consider whether relief in the nature of declaration or mandamus is appropriate. [88] The Chambers judge concluded that the legislated process had “a high potential of becoming a morass of appeals andapplications …” (at para 98) and, as a matter of procedural fairness, Wal-Mart should be entitled to pre-hearing disclosure, but he did nototherwise identify an exceptional circumstance. [89] In this appeal, Wal-Mart states that the circumstances surrounding the parties’ application for judicial review were unique forthree reasons: (

a) both parties sought access to judicial review;

(

b) Wal-Mart’s claim of breach of procedural fairness extended to both the Board and the Assessor; and (

c) the scope of disclosure was an outstanding issue and the subject of considerable dispute between the parties. The first of these is dealt with by Powell : simply because both parties seek early recourse or consent to early recourse is not an exceptional circumstance. Further, the parties cannot confer jurisdiction by consent. The third reason is simply not an exceptional circumstance. Issues under appeal are generally outstanding and the subject of considerable dispute. [ 90 ] In my view, there are no exceptional circumstances in the present case to justify judicial intervention.

Where an application is premature, particularly when judicial review is sought, judicial intervention is only justified in the most exceptional circumstances: as noted in the authorities, “Concerns about procedural fairness or bias … or the fact that all parties have consented to early recourse to the courts

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