There are no shortcuts to judicial review: judicial review will not be available where there is an adequate alternative remedy. A limited right of appeal from decisions of an administrative body to the Court constitutes an adequate alternative remedy

Administrative law – Decisions reviewed – Condominium Authority – Strata corporations – Jurisdiction of court – Judicial review – Applications – Premature – Jurisdiction – Alternative remedies

Peel Standard Condominium Corp. No. 779 v. Rahman, [2021] O.J. No. 6105, 2021 ONSC 7113, Ontario Superior Court of Justice, October 28, 2021, F.B. Fitzpatrick, S.T. Bale and F. Kristjanson JJ.

The applicant Condominium Corporation brought an application for judicial review in respect of a decision of the Condominium Authority Tribunal (“CAT”) that the respondent, an owner and resident of a unit in its apartment building, was entitled to use a designated accessible parking space located in a lot marked “visitor parking only,” and that the Condominium Corporation was not entitled to charge him for costs of enforcement related to that parking issue.

The respondent had commenced the application at the CAT, which held a written hearing. The presiding member found in favour of the respondent and ordered the Condominium Corporation to pay costs and damages.

The CAT may resolve certain disputes under the Condominium Act, 1998, S.O. c. 19 (the “Act”), as prescribed under the Condominium Authority Tribunal Regulation, O. Reg. 179/17. The Act provides that a party to a proceeding before the CAT has a right to appeal its decision to the Court on a question of law.

In this case, the Court held that judicial review is a discretionary remedy that is not available where there is an adequate alternative remedy, and that a limited right of appeal from decisions of an administrative body to the Divisional Court constitutes an adequate alternative remedy to an application for judicial review. The Court should only exercise its discretion to hear judicial review applications with respect to those aspects of a decision not covered by a statutory appeal right in exceptional circumstances, if at all.

The Court further held that the applicant had not provided an explanation as to why it did not appeal the CAT’s decision, nor had it cited exceptional circumstances that would justify premature judicial review. The applicant had raised an issue of procedural fairness, but the Court held that procedural fairness is an issue that can be raised on appeal, and allegations of procedural fairness do not constitute an exceptional circumstance.

Citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Court gave weight to the legislature’s intent to limit the Court’s review of decisions made by the CAT to questions of law only, and to allow the CAT to “function with a minimum of judicial interference” on questions of mixed fact and law. The application for judicial review was dismissed, with costs.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at [email protected].

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