A Claim of Prematurity in Forner v Professional Institute of the Public Service of Canada: Saving Costs or Denying Access to Justice?
Within administrative law, there are various discretionary bars that are available for the courts to use to increase or decrease access to the judicial system. One such bar is the discretionary bar of prematurity, which is used when an application brought before an administrative proceeding has completed. In such cases, the court can exercise discretion against the grant of a remedy on the basis of prematurity, which means that while the applicant may have a reasonable prospect of success, the matter may be inappropriate for judicial intervention at the present time. In Forner v Professional Institute of the Public Service of Canada, 2016 FCA 35 [Forner], Justice Stratas exercised this discretionary bar and dismissed an application for judicial review.
Background and Facts of the Case
The applicant, Magdalena Forner, alleged that her bargaining agent who is also the respondent in this case, breached its duty to represent her fairly, and so the applicant made a complaint to the Public Service Labour Relations and Employment Board (the “Board”). In response to this claim, the Board asked that the applicant file a “Request for Particulars” form, as the Board wanted more information about her complaint. In filing this form, Forner made reference to a box of documents, which she had attached to the form, and wrote “see attached documents” where she saw fit. The Board then rejected her “filled” form, gave her box of documents back, and re-requested that she submit the form again.
Forner brought an application for judicial review. The respondent claimed it was premature and moved to strike the application. Although Forner did not respond to the respondent’s motion, the court noted that the motion could not be granted by default and was to be heard. The respondent submitted that the rules governing a motion to strike for a judicial review application grounded in prematurity stem from jurisprudence that insinuates interlocutory decisions should be struck.
At the Federal Court
Justice Stratus referred to Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 [JP Morgan]—the leading case on motions to strike on judicial review—and concluded that this motion to strike should be granted to the respondent. The test in JP Morgan required that there be a “fatal flaw” in entertaining the application. In this case, the fatal flaw was the prematurity of the judicial review application:
The applicant challenges a decision made by the Board right at the outset of its administrative proceedings. Its administrative proceedings are far from completed. The respondent’s objection that the application for judicial review is premature is, in the circumstances of this case, a “show stopper.” In these circumstances, it is clear that this Court cannot entertain the application for judicial review (Forner, para 11).
Forner demonstrates a key theme in administrative law: There seems to be a tension between, on the one hand, the importance of providing those that want to go to court with a fair chance at bat, and, on the other hand, the fact that limited judicial resources is a sufficient reason to not allow certain cases to proceed. The court in Forner made reference to the ruling regarding summary judgments in Hryniak v Mauldin,  1 SCR 87 [Hryniak]. A summary judgment is a motion that allows the parties to quickly divide a lawsuit into a few simple and direct questions for the judge to answer specifically with the use of evidence on paper. This is said to make the hearing proceed more quickly and cost less compared to that of a full trial with witnesses. In Hryniak, the Supreme Court of Canada endorsed this procedure. This kind of ruling allows lawyers to be more inclined to take on their clients’ cases through summary judgments, thereby reducing the expenses and time that would otherwise be necessary in a trial setting.
Judges must be mindful of at all times of the fine lines that have to be attended to when making these decisions. Granting a motion to strike application because of the prematurity of the judgment seems logical—especially given that the final decision might actually be in the favour of the applicant and so a review of the decision might not even be necessary. But what happens when this discretion is taken for granted and is exercised incorrectly? How do we ensure that the line between ensuring efficiency and decreasing access to justice is drawn appropriately? This tension will no doubt continue to exist, but answering these questions seems to require a belief in the fairness of the justice system.
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