



COURT OF APPEAL FOR ONTARIO

CITATION: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541

DATE: 20120820

DOCKET: C54339

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

Oleg Volochay

Applicant (Respondent)

and

College of Massage Therapists of Ontario

Respondent (Appellant)

Peter J. Osborne and Ian MacLeod, for the appellant

Robert C. Morrow, for the respondent

Heard: December 16, 2011

On appeal from the judgment of Justice Lynn D. Ratushny
    of the Divisional Court, dated March 29, 2011, with reasons reported at 2011
    ONSC 2225.

Laskin
    J.A.:

A.

introduction

[1]

The overriding question on this appeal is whether the application judge was
    wrong in principle to grant judicial review and quash two decisions of the
    Colleges investigatory bodies.

[2]

Oleg Volochay is a massage therapist and a member of the College of Massage
    Therapists of Ontario.  In July 2008, a former female patient complained to the
    Registrar of the College that she and Volochay had engaged in sexual
    intercourse while she was a patient  conduct that is prohibited by the
Health
    Professions Procedural Code
and attracts a penalty of loss of certificate
    to practice for a minimum of five years.

[3]

The Colleges Complaints Committee investigated the complaint.  However,
    in breach of the requirements of the Code, Volochay was not given notice of the
    complaint or an opportunity to make written submissions to the Committee.  In
    April 2009, the Complaints Committee decided to refer the matter to the
    Colleges Executive Committee to consider a full investigation of Volochays
    practice.  It made its decision without ever telling Volochay the substance of
    the allegations against him or giving him a chance to refute the allegations.

[4]

In November 2010, 19 months after the decision of the Complaints
    Committee, its successor body, the Inquiries, Complaints and Report Committee
    (ICRC) appointed an investigator to inquire into and examine Volochays
    practice.

[5]

Ratushny J. granted Volochays judicial review application and quashed
    the initial decision of the Complaints Committee on the ground that the College
    violated its statutorily mandated procedures and did not comply with the
    most basic principles of natural justice and procedural fairness.  She also
    quashed the later decision to appoint an investigator on the ground that it was
    simply a ratification of the initial decision.  She concluded that the issue
    before her was a true question of jurisdiction and that the College had violated
    its statutory authority to proceed, rendering its proceeding on the complaint a
    nullity.

[6]

On its appeal, the College contends that the court ought not to have
    intervened before the administrative proceedings under the Code had run their
    course.  In support of this contention, the College advances three submissions:

(1)

The application judge erred in holding that the Colleges  failure to
    give Volochay notice of the complaint raised a true question of jurisdiction;

(2)

No exceptional circumstances justified judicial review before the
    College proceedings were completed, especially because Volochay had an adequate
    alternative remedy, a review before the Health Professions Appeal and Review
    Board (HPARB), which he declined to exercise; and

(3)

Volochays egregious conduct after the complaint was made disentitled
    him to relief.

[7]

Before outlining the facts that put these submissions in context, I will
    set out the regulatory framework that governs this case.

B.

Regulatory framework

[8]

The College of Massage Therapists is a self-regulating body for the
    practice of massage therapy in Ontario.  Like other health professions in
    Ontario, it is subject to the
Regulated Health Professions Act
,
1991
,
    S.O, 1991, c. 18, and the
Health Professions Procedural Code
, which is
    Schedule 2 to the Act.

[9]

The Code establishes the procedural framework for registration, complaints
    and discipline.
[1]
Section 3(1) sets out the objects of the Code, one of which is to regulate the
    practice of the profession and to govern its members in accordance with the Act
    and the Code.  Section 3(2) stipulates that [i]n carrying out it objects, the
    College has a duty to serve and protect the public interest.

Sexual Intercourse With a Patient is Professional Misconduct

[10]

A
    member who sexually abuses a patient commits an act of professional
    misconduct.  Sexual abuse includes sexual intercourse, even if consensual,
    between a patient and a member.  The penalty for sexual abuse involving intercourse
    is revocation of the members certificate to practice.  The member cannot apply
    for reinstatement for five years: see Code ss. 1(3), 51(5) and 72(3); and
Leering
    v. College of Chiropractors of Ontario
, 2010 ONCA 87, 98 O.R. (3d) 561.

Complaints by Members of the Public

[11]

The
    Complaints Committee, now the ICRC, has the statutory authority to investigate
    and take action on a complaint.  The Committee performs a screening function:
    it determines whether the complaint should go forward to a discipline hearing
    or for other action.  Sections 25(1) and (2) of the Code provide:

25(1) A complaint filed with the Registrar
    regarding the conduct or actions of a member shall be investigated by a panel
    selected by the chair of the Complaints Committee from among the members of the
    Committee.

(2)  A panel shall be composed of at least
    three persons, at least one of whom shall be a person appointed to the Council
    by the Lieutenant Governor in Council.

[12]

Section
    25(5) is a key provision on this appeal.  It states:

The Registrar shall give the member who is the
    subject of a complaint notice of the complaint and of the provisions of
    subsection 26(1).

Volochay was not given notice of the complaint, as
    required by this provision.

[13]

The
    purpose of the notice provision is to give the member the right to make written
    submissions to the Committee.  Section 26(1) states:

A member who is the subject of a complaint may make
    written submissions to the panel within thirty days after receiving notice
    under subsection 25(5).

Volochay was not afforded the right to make
    submissions to the Complaints Committee.

[14]

The
    powers of a Committee investigating a complaint are set out in s. 26(2).  In exercising
    these powers the Committee must consider the submissions of the member. 
    Section 26(2) states:

26(2) A panel, after investigating a complaint
    regarding the conduct or actions of a member, considering the submissions of
    the member and considering or making reasonable efforts to consider all records
    and documents it considers relevant to the complaint, may do any one or more of
    the following:

1. Refer a specified allegation of the members
    professional misconduct or incompetence to the Discipline Committee if the
    allegation is related to the complaint.

2. Refer the member to the Executive Committee for
    incapacity proceedings.

3. Require the member to appear before the panel
    or another panel of the Complaints Committee to be cautioned.

4. Take action it considers appropriate that is
    not inconsistent with the health profession Act, this Code, the regulations or
    by-laws

In this case, without any submissions from Volochay,
    the Committee acted under s. 26(2)4: it referred the matter to the Executive Committee
    of the College to consider a full investigation of Volochays practice.  The
    application judge quashed this decision.

[15]

Under
    s. 26(5) the Committee, after considering the written submissions of the
    complainant and the member, shall take no action on a complaint where it is
    satisfied that the complaint is frivolous, vexatious, made in bad faith or otherwise
    an abuse of process.

[16]

Section
    28(1) provides for the timely disposal of complaints.  The Committee is required
    to dispose of a complaint within 120 days after it has been filed (although
    this time may be extended).  In this case, the Committee took nine months to
    dispose of the complaint against Volochay.  However, the length of time the Committee
    took to deal with the complaint is not in issue on this appeal.

Section 75 Investigations

[17]

Section
    75 of the Code provides for three circumstances in which the Registrar can
    appoint an investigator to determine whether a member has committed an act of
    professional misconduct:

75. The Registrar may appoint one or more
    investigators to determine whether a member has committed an act of
    professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and
    probable grounds that the member has committed an act of professional
    misconduct or is incompetent and the Executive Committee approves of the
    appointment;

(b) the Executive Committee has received a report
    from the Quality Assurance Committee with respect to the member and has
    requested the Registrar to conduct an investigation; or

(c) the Complaints Committee has received a
    written complaint about the member and has requested the Registrar to conduct
    an investigation.

[18]

In
    this case, in September 2008, at the request of the Complaints Committee, the Registrar
    appointed an investigator under s. 75(c) of the Code.  In November 2010, an
    investigator was appointed under s. 75(a) of the Code to examine Volochays
    practice.  The application judge also quashed the November 2010 decision
    appointing an investigator.

Reviews and Appeals

[19]

Under
    s. 29(2) of the Code, Volochay had the right to ask the HPARB to review the Complaints
    Committees decision to refer the matter to the Executive Committee.

29(2) The complainant or the member who is the
    subject of the complaint may request the Board to review a decision of a panel
    of the Complaints Committee unless the decision was,

(a) to refer an allegation of professional
    misconduct or incompetence to the Discipline Committee; or

(b) to refer the member to the Executive Committee
    for incapacity proceedings.

[20]

Volochay
    asked for a review and then withdrew his request.  Section 30(1) states:

30(1) The Board shall not review a decision if
    the party who requested the review withdraws the request and the other party
    consents.

[21]

Section
    33(1) specifies that the HPARB may consider both the adequacy of the
    investigation and the reasonableness of the decision.

33(1) In a review, the Board shall consider
    either or both of,

(a) the adequacy of the investigation conducted;
    or

(b) the reasonableness of the decision.

[22]

Section
    35(1) sets out the powers of the HPARB:

After conducting a review of a decision, the Board
    may do any one or more of the following:

1. Confirm all or part of the decision.

2. Make recommendations the Board considers
    appropriate to the Complaints Committee.

3. Require the Complaints Committee to do anything
    the Committee or a panel may do under the health profession Act and this Code
    except to request the Registrar to conduct an investigation.

[23]

Review
    decisions of the HPARB may be appealed to the Divisional Court on a question of
    law or fact.  Section 70 of the Code states:

70(1) A party to proceedings before the Board
    concerning a registration hearing or review or to proceedings before a panel of
    the Discipline or Fitness to Practise Committee, other than a hearing of an
    application under subsection 72 (1), may appeal from the decision of the
    Board or panel to the Divisional Court.

(2)  An appeal under subsection (1) may be
    made on questions of law or fact or both.

(3)  In an appeal under subsection (1), the
    Court has all the powers of the panel that dealt with the matter and, in an
    appeal from the Board, the Court also has all the powers of the Board.

C.

additional relevant background

(a)

The Respondent Oleg Volochay

[24]

The
    respondent has been a registered massage therapist and a member of the College
    since December 2005.  He practises in Ottawa.  He is married and has one child,
    a son.

(b)

The Complaint

[25]

S.D.
    was one of Volochays patients.  She received massage therapy treatments from
    him for nearly four years  from September 2004 to June 2008.

[26]

In
    July 2008, she sent a written complaint to the College.  She alleged that for
    nearly a year  between August 2005 and July 2006  she and Volochay had a
    sexual relationship, which included consensual sexual intercourse.  After the
    sexual relationship, S.D. continued to receive massage therapy treatments from
    Volochay for nearly two years.

[27]

In
    his affidavit sworn in support of his judicial review application, Volochay
    denied S.D.s allegations of sexual impropriety.  He said that her complaint was
    both false and defamatory.

(c)

The Complaints Committees Investigation and
S.
D
.
s Withdrawal of her Complaint

[28]

The
    Complaints Committee investigated the complaint.  It asked the Registrar to
    appoint an investigator under s. 75(c) of the Code.  The Registrar did so in
    early September 2008.

[29]

The
    investigator met with S.D.  She also advised Volochay that a complaint had been
    made against him, but did not disclose either the identity of the complainant
    or the nature of the allegations.  On September 21, 2008, S.D. sent an email to
    the College withdrawing her complaint against Volochay.  She said that I do
    not believe Mr. Volochay should lose his licence or be penalized because of our
    personal relationship.  His treatments as a massage therapist were always
    professional and he never behaved inappropriately.  The College, however,
    claims that Volochay pressured S.D. to withdraw her complaint.

[30]

Nonetheless,
    because S.D. had withdrawn her complaint, the College investigator was
    instructed not to serve Volochay with notice of the complaint.  And, in fact,
    Volochay never was served. Nor did the College ever tell him the nature of the
    complaint.  Indeed, in a reporting memorandum, a College investigator said that
    Volochay was not aware of the Colleges ongoing investigation and that what
    was shared between S.D. and the College would remain confidential until the
    very end.

[31]

On
    September 23, 2008, the College wrote to Volochay to advise him that the
    complainant wished to withdraw the complaint.  The letter also said that a
    panel of the Complaints Committee will need to review this information to
    confirm the withdrawal of the complaint.  This was the last correspondence
    that Volochay received from the College until the decision of the Complaints
    Committee in April 2009.

[32]

Meanwhile,
    at a meeting in early January 2009, S.D. refused to cooperate with the
    Colleges investigator.  And apparently the College has not heard from her
    since that time.

(d)

The Decision of the Complaints Committee, April
    2009

[33]

The
    Complaints Committee concluded that it retains jurisdiction to investigate a
    complaint, even when the complaint has been withdrawn.  It determined that the
    allegations were serious and constituted acts of professional misconduct.  The Committee
    also expressed concerns about S.D.s allegation that Volochay had threatened
    her during the currency of their personal relationship.  The Committee observed
    that this additional information provided in the complaint, but not forming
    part of the allegations, may be suggestive of a pattern of behaviour with
    serious public interest implications.

[34]

The
    Committee concluded its decision as follows:

It is noted that the Registrar with the approval of the
    Executive Committee can commence an investigation pursuant to Section 75(a) of
    the
Code
where information is received by the College which
    establishes reasonable and probable grounds for the Registrar that a member has
    committed an act of professional misconduct or may be incompetent.  In this
    regard, the panel has determined that this matter will be referred to the
Executive Committee for their consideration in terms of a full investigation
    inquiring into the practice of the member given the seriousness of the
    allegations involved and the public interest concerns.

[35]

Nowhere
    in its decision did the Committee advert to its obligation under s. 25(5) of
    the Code to give Volochay notice of the complaint or to its failure to give him
    an opportunity to make written submissions to the Committee.

(e)

Volochay Asks for and then Withdraws his Request
    for a Review Before
the
HPARB

[36]

Volochay
    received a copy of the decision of the Complaints Committee in late April
    2009.  In May 2009, his lawyer (not Mr. Morrow) requested a review of the
    decision of the Complaints Committee.  This review was scheduled for November 19,
    2010.  However, in August 2010, his lawyer gave the HPARB notice that Volochay
    was withdrawing his request for a review without prejudice to his right to
    contest or dispute the complaint.  The College did not object to Volochays withdrawal
    of his request.

[37]

In
    September 2010, Mr. Morrow wrote the College asking that S.D.s complaint be
    dismissed.

(f)

The Decision to Appoint an Investigator Under
    Section 75(a) of the Code

[38]

The
    College refused to dismiss the complaint.  Instead, on November 30, 2010, it
    wrote Volochays counsel to advise him that an investigator had been appointed
    under s. 75(a) to inquire into and examine the practice of Mr. Volochay. 
    This was the investigation contemplated in the decision of the Complaints Committee
    19 months earlier.

(g)

Decision of the Divisional Court

[39]

Volochay
    sought judicial review and asked for leave under s. 6(2) of the
Judicial
    Review Procedure Act
, R.S.O. 1990, c. J-1, to have his application heard
    before a single judge of the Divisional Court on the ground of urgency.  He asked
    that both the April 16, 2009 decision of the Complaints Committee and the
    November 2010 decision appointing an investigator under s, 75(a) of the Code be
    quashed.  Leave was granted and the application judge quashed both decisions. 
    She wrote at paras. 33-34:

In addition to violating its statutorily mandated procedures,
    the respondent did not comply with the most basic of principles of natural
    justice and procedural fairness during its investigation and before coming to a
    decision.  It gave the applicant no notice of the allegations and no
    opportunity to answer and defend them during the investigation process and
    before the First Decision was made.

The Second Decision is simply a ratification of the First
    Decision, relying again on an investigation and process that violated the
    applicants right to procedural fairness.

[40]

She
    observed at para. 31:

While the applicant did receive notice in September 2008 that
    there was a complaint and then later that it had been withdrawn, the evidence
    is that he never did receive notice of its subject matter or its specific
    allegations.  In the respondents concern for the complainant and her interests
    and safety, the applicants interests including his right to notice of the
    complaint and to make written submissions on it appear to have been passed over
    and forgotten.

[41]

She
    also rejected, at para. 35, the suggestion that Volochay had notice of the
    complaint because he had caused S.D. to withdraw it.

It is no answer to say that the applicant had actual notice of
    the complaint because he had caused the complainant to withdraw it in September
    2008.  The matter of the withdrawal is part of the complainants side of the
    story that the applicant should have had the opportunity to answer as part of
    the respondents investigation.  To attribute notice to him of a fact he denies
    but has not been given the opportunity to deny cannot be deemed to amount to
    any notice whatsoever.

[42]

The
    application judge acknowledged that judicial review is discretionary and
    absent exceptional circumstances, administrative proceedings before
    administrative tribunals should not be fragmented until there is a full record
    and the administrative proceeding has come to an end (citation omitted). 
    However, in her view, the College had acted without jurisdiction so that its proceedings
    to date in respect to the complaint are a nullity.

[43]

She
    viewed the issue before her as a true question of jurisdiction.  The process
    violated the Colleges statutory authority to proceed; it violated the Colleges
    duty to proceed fairly; and it violated Volochays right to procedural
    fairness.  Finally, that Volochays right to continue his profession and his employment
    were at stake, was fundamental to a consideration of the fairness of the
    process.

[44]

In
    September 2011, a panel of this court granted leave to appeal from the
    application judges decision.

D.

analysis

[45]

As
    I said at the outset, the question on this appeal is whether the application
    judge was wrong in principle in exercising her discretion to grant judicial
    review and quash the Colleges decisions of April 2009, and November 2010. 
    Four points assist to put this question in context.

[46]

First,
    I agree with the application judge that the College was entitled to continue to
    investigate S.D.s complaint even though she had withdrawn it.  The College has
    a statutory mandate to serve and protect the public interest.  It need not stop
    an investigation because the complainant no longer wishes to proceed,
    especially where it believes that a member may have influenced the withdrawal
    of the complaint.

[47]

That
    leads to my second point: Having decided to proceed with its investigation, the
    College could not ignore its statutory obligations and the duty of fairness it owed
    to Volochay.  But, as the application judge found, that is precisely what the College
    did. It breached the rules of natural justice and its own statutory obligations
    when it failed to give Volochay notice of the complaint and an opportunity to
    make written submissions to the Complaints Committee, before the Committee made
    its April 2009 decision.

[48]

Adequate
    notice is a fundamental component of fairness at common law.  It ensures that individuals
    affected by a decision have sufficient information and a reasonable opportunity
    to answer the case against them.  Section 25(5) of the Code, which required the
    Registrar to give Volochay notice of the complaint, codifies this rule of
    natural justice and statutorily imposes a duty of procedural fairness on the
    College, even at the investigatory stage of its processes.  That it does so no
    doubt reflects the potentially serious consequences for a member who is under
    investigation.

[49]

Moreover,
    the College could not avoid its statutory duties by suggesting that Volochay
    knew what the complaint was about.  He says otherwise, and even if he did know
    something about it, the Colleges duty in s. 25(5) is unqualified.

[50]

Third,
    the Colleges decision in November 2010, to appoint an investigator to inquire
    into Volochays practice was tied to the Complaints Committees decision in
    April 2009.  That is evident from the Complaints Committees reasons, which
    contemplated the appointment of an investigator under s. 75(a) of the Code. 
    The application judge fairly concluded that the November 2010 decision
    effectively ratified the April 2009 decision.  In oral argument, counsel for
    the College acknowledged that if the April 2009 decision of the Complaints Committee
    was quashed, the November 2010 decision appointing an investigator could not
    survive.

[51]

The
    record shows that the Registrar also appointed an investigator under s. 75(c)
    of the Code.  That appointment was made in September 2008 at the request of the
    Complaints Committee.  The record is unclear when that investigation ended. 
    However, I think a reasonable conclusion is that it ended when the Complaints Committee
    rendered its decision in April 2009.

[52]

The
    last point is that judicial review is a discretionary remedy.  An appellate
    court must defer to the exercise of that discretion unless the conclusion is
    unreasonable or has been reached on the basis of an irrelevant or extraneous
    consideration,
a wrong principle
, or as a result of insufficient or no
    weight having been given to a relevant consideration (emphasis added): see
Canadian

Pacific Ltd. v. Matsqui Indian Band
, [1995] 1 S.C.R. 3, per Sopinka
    J., at para. 112.

[53]

Thus,
    I return to the question whether the application judge exercised her discretion
    on a wrong principle when she granted judicial review.  In contending that she
    did so, the College makes two main points.  First, the application judge erred in
    principle by characterizing the issue before her as a true question of
    jurisdiction.  And second, she erred in principle by failing to find that
    Volochay had an adequate alternative remedy  a review before the HPARB  and instead
    holding that the denial of procedural fairness to Volochay was an exceptional
    circumstance justifying judicial intervention before the College proceedings
    were completed.

(a)


True Question of
    Jurisdiction
?

[54]

The
    application judge concluded that whether the College breached its duty of
    procedural fairness was a true question of jurisdiction, and that the
    Colleges breach rendered its action on the complaint a nullity.  She held that
    the College did not have the statutory authority to investigate without
    according the applicant the right to respond.  This was an exceptional
    circumstance justifying judicial review even though the proceedings before the
    College had not been completed.

[55]

The
    College submits that the application judge erred in characterizing the question
    as one of jurisdiction and that judicial intervention was not justified on that
    basis.  I agree with this submission.

[56]

As
    the application judge acknowledged, the phrase true question of jurisdiction
    comes from the Supreme Court of Canadas decision in
Dunsmuir v. New
    Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190.  In that case, and those that
    followed, the Supreme Court reconsidered and, arguably, narrowed the scope of a
    question of true jurisdiction: see
Smith v. Alliance Pipeline Ltd.
, 2011
    SCC 7, [2011] 1 S.C.R. 160;
Canada (Canadian Human Rights Commission) v.
    Canada (Attorney General)
, 2011 SCC 53, [2011] 3 S.C.R. 471; and,
Alberta
    (Information and Privacy Commissioner) v. Alberta Teachers Association
,
    2011 SCC 61, [2011] 3 S.C.R. 654.  Under this line of authorities, a true
    question of jurisdiction now refers to whether the tribunal had authority to
    make the inquiry in the first place: see
Dunsmuir
, at para. 59.

[57]

Is
    a question of procedural fairness a true question of jurisdiction in the
Dunsmuir
sense?  The strongest support for the application judges conclusion comes from
    the powerful dissenting reasons of Dickson J. in
Harelkin v. University of
    Regina
, [1979] 2 S.C.R. 561.  There, he characterized a breach of the
    rules of natural justice as an error going to jurisdiction or closely akin to
    a jurisdictional error.

[58]

However,
    the prevailing view, reflected in the majority reasons of Beetz J. in
Harelkin
,
    and in later cases, is that a question of procedural fairness or natural
    justice is not a true question of jurisdiction in the narrow sense that phrase
    is used in
Dunsmuir
.  Whether a tribunal breached its duty of fairness
    is not relevant to whether it had authority to begin its inquiry.  A breach of
    the duty of fairness only arises after the inquiry has lawfully begun.  Though a
    tribunal that breaches its duty of fairness may be said to have abused or
    exceeded its jurisdiction, this is not the same thing as having no jurisdiction
    to even start an inquiry: see for example
Toronto Hydro Electric System
    Ltd. v. Ontario (Energy Board)
, 2010 ONCA 284, 99 O.R. (3d) 481;
Service
    Employees International Union Local No. 333 v. Nipawin District Staff Nurses
    Association
, [1975] 1 S.C.R. 382, at p. 389.

[59]

Thus,
    I do not agree with the application judges holding that because the Complaints
    Committee did not give Volochay notice of the complaint and the right to
    respond, it did not have the statutory authority to investigate.  Her holding
    would turn the notice requirement in s. 25(5) of the Code into a pre-condition
    to the Committees jurisdiction.  However, s. 25(5) is simply a statutory
    codification of an affected partys right to procedural fairness or natural
    justice.  It is not a provision that goes to the Committees jurisdiction to
    investigate a complaint.

[60]

Accordingly,
    the application judge was wrong in principle to characterize the question
    before her as a true question of jurisdiction.  But, more importantly, even
    if her characterization were correct, it does not follow that early judicial review
    was justified solely on that basis.

(i)

Jurisdictional defects and early judicial review

[61]

Whether
    a question is one of true jurisdiction is relevant to determining the
    appropriate standard of review of a tribunals decision.  True questions of
    jurisdiction invite review on a standard of correctness, not reasonableness. 
    However, characterizing a question as one of true jurisdiction does not
    determine whether early judicial intervention is warranted.

[62]

Admittedly,
    there is case law from this court suggesting that early judicial review is automatically
    available for jurisdictional defects, even defects arising from a denial of
    natural justice.  For example, in
Howe v. Institute of Chartered
    Accountants of Ontario
(1994), 19 O.R. 483, Finlayson J.A., writing for
    the majority, said:

I think it is trite law that the court will only interfere with
    a preliminary ruling made by an administrative tribunal where the tribunal
    never had jurisdiction or has irretrievably lost it:  see
Re Gage and
    Attorney General for Ontario
(1992), 90 D.L.R. (4th) 537 (Div. Ct.) and
Re
    Roosma and Ford Motor Co.
(1988), 53 D.L.R. (4th) 90 (Div. Ct.).  In
Gage
,
supra
, the court found that the failure of the board of inquiry to
    provide a policeman with timely written notice of its decision to order a
    hearing into a complaint regarding his behaviour, pursuant to its statutory
    obligation, was a denial of natural justice which resulted in a loss of
    jurisdiction.  In
Roosma
,
supra
, the court held that judicial
    review was open to challenge proceedings tainted with a fatal jurisdictional
    defect at the outset even where an appeal was provided: at p. 490.

[63]

However,
    in my view, this passage has been overtaken by Supreme Court of Canada
    jurisprudence and no longer reflects the governing law. The passage relies on
    lower court authorities and makes no reference to
Harelkin
. Moreover,
    the court did not have the benefit of the Supreme Courts reasons in
Matsqui
.
    These cases show that neither a breach of natural justice nor a question of
    true jurisdiction entitles an aggrieved party to automatic access to the
    courts.
owe

[64]

In
Harelkin
the

majority held that the court should exercise its
    discretion to refuse judicial review for a breach of natural justice if the
    aggrieved individual  there a student  had an adequate alternative remedy 
    there an internal appeal.  In so holding, the majority said that a decision
    made in breach of the rules of natural justice is not a nullity, as the
    application judge held in the present case, but is curable on appeal.

[65]

The
    more significant case is
Matsqui
.
Matsqui
was decided after
Howe
.
    It affirmed
Harelkin
and extended its reach to true questions of
    jurisdiction.  Canadian Pacific challenged assessments levied by Indian bands
    on land on which its railways ran.  The company contended that the land was not
    in the reserve and thus not within the taxing authority of the bands. 
    Instead of raising this issue before the various tribunals established under
    the legislation to hear assessment appeals, Canadian Pacific went to court and
    sought judicial review of the initial assessments.  The trial judge denied
    relief on the ground that Canadian Pacific had resort to an adequate
    alternative remedy.

[66]

All
    members of the court accepted that the issue was jurisdictional  a true
    question of jurisdiction in the
Dunsmuir
sense. Relying on
Harelkin
,
    Lamer C.J.C. for the majority of the court held that despite the jurisdictional
    nature of the inquiry, Canadian Pacific did not have automatic access to the
    court. The court maintained discretion to refuse to deal with the issue because
    the internal appeals provided an adequate alternative remedy that ought to have
    been pursued. It was therefore not an unreasonable exercise of the trial
    judges discretion to deny relief.
[2]

[67]

In
C.B. Powell Limited v. Canada (Border Services Agency)
, 2010 FCA 61, [2011]
    F.C.R. 332, at para. 42, Stratas J.A. of the Federal Court of Appeal commented that
    the use of the label jurisdiction to justify judicial interference with
    ongoing administrative decision making processes is no longer appropriate.  I
    agree.  Even a true question of jurisdiction is not, by itself, an exceptional
    circumstance justifying judicial review before administrative proceedings are
    completed.  A jurisdictional ground of review does not, standing alone,
    deprive a reviewing court of its discretion to refuse relief.

(b)

Alternative Remedies and Exceptional
    Circumstances?

[68]

The
    application judge recognized the principle that unless exceptional
    circumstances exist, a court should not interfere in an administrative
    proceeding until it has run its course.  The principle has particular force
    where adequate alternative remedies are available under the administrative
    scheme.  Ordinarily an affected individual must pursue these remedies before
    seeking relief from the court.

[69]

The
    rationales for this principle are well known.  The principle respects
    administrative decision-making and the legislatures intent that internal
    review processes be exhausted before the court intervenes.  At the same time,
    the principle preserves the right of the court to intervene in those
    exceptional circumstances where the justice of the case calls for
    intervention.  Stratas J.A. summarized the rationales for the principle in
C.B.
    Powell
at paras. 31-32, and I can do no better than quote his words:

Put another way, absent exceptional
    circumstances, courts should not interfere with ongoing administrative
    processes until after they are completed, or until the available, effective
    remedies are exhausted.

This prevents fragmentation of the administrative
    process and piecemeal court proceedings, eliminates the large 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 anyway. Further, only at
    the end of the administrative process will a reviewing court have all of the
    administrative decision-makers findings; these findings may be suffused with
    expertise, legitimate policy judgments and valuable regulatory experience. Finally,
    this approach is consistent with and supports the concept of judicial respect
    for administrative decision-makers who, like judges, have decision-making
    responsibilities to discharge. [Citations omitted.]

See also David J. Mullan,
Administrative Law
(Toronto: Irwin Law, 2001) at pp. 485-494 and
Ackerman v. Ontario
    (Provincial Police)
, 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.).

[70]

In
    my  view, this principle applies even though s. 2(1) of the
Judicial Review
    Procedure Act
provides that an application for judicial review may be
    brought despite any right of appeal to either an administrative tribunal or
    to the court.  The ability to bring an application for judicial review does not
    compel the court to undertake judicial review - exceptional circumstances are
    still required to justify early intervention.

[71]

The
    College submits that Volochay had an adequate alternative remedy available to
    him  a review before the HPARB  which he declined to exercise.  As he did not
    pursue this remedy, and there were no exceptional circumstances to otherwise
    justify early judicial review, the application judge was wrong in principle to
    quash the Colleges decisions of April 2009, and November 2010.  I agree with this
    submission.

(i)

Was a review by
the
HPARB
    an adequate alternative remedy?

[72]

Because
    the application judge concluded that the Colleges breach of natural justice
    rendered the proceedings a nullity, she did not consider the effect of Volochays
    decision not to proceed with a review before the HPARB.  However, the
    application judge erred in her conclusion.  The Colleges breach of natural
    justice did not render its investigation a nullity.  Thus, if a review of the
    Complaints Committees decision was an effective or adequate alternative
    remedy, then absent exceptional circumstances, early judicial review was not
    appropriate.

[73]

To
    be an effective or adequate remedy, the defect alleged  here a denial of
    procedural fairness  must be capable of being raised before the reviewing body,
    and the reviewing body must be capable of curing the defect.  A review before
    the HPARB satisfies these two criteria.

[74]

Section
    33(1)(a) of the Code authorizes the HPARB to review the adequacy of the
    Complaints Committees investigation.  An investigation conducted without
    giving the member notice of the complaint and an opportunity to make written
    submissions is an inadequate investigation.  Thus, the HPARB could have considered
    the failure of the Complaints Committee to afford Volochay procedural fairness:
    see
D.L.M. v. S.E.-S.
, 2010 CanLII 70389 (ON HPARB), at paras. 26,
    35-38.

[75]

Under
    s. 35(1)3 of the Code, the HPARB could have required the ICRC to reconsider the
    S.D. complaint, but this time after ensuring that Volochay had notice of the
    complaint and an opportunity to make written submissions.  In other words, the HPARB
    could have ordered the ICRC to give Volochay his procedural rights during the
    reconsideration.

[76]

What
    the HPARB could not have done was give Volochay the remedy he sought, and that was
    granted, in the Divisional Court: an order quashing the decision of the
    Complaints Committee and the later decision appointing an investigator. 
    However, in my opinion, a reconsideration of the investigation after giving
    Volochay notice of the complaint and the opportunity to make submissions would
    be an adequate alternative remedy.  We must assume that the ICRC would conduct
    the reconsideration fairly and with an open mind.  The HPARB would, therefore,
    be capable of curing the initial failure of the Complaints Committee to treat
    Volochay fairly.

[77]

Considerations
    of cost, convenience and timeliness may bear on the adequacy of an alternative
    remedy.  To the extent that they are relevant, these considerations also favour
    review before the HPARB.  That review was scheduled some 20 months ago, and
    therefore, could have long since been completed, and no doubt for a relatively
    modest cost.

[78]

Volochays
    failure to seek a review of the Complaints Committees decision before the HPARB
    ought to have precluded relief by judicial review, absent exceptional
    circumstances.

(ii)

Were there exceptional circumstances?

[79]

The
    Complaints Committees decision, which called for an examination of Volochays
    entire practice, was a far-reaching order.  It went well beyond simply
    referring S.D.s complaint to the Discipline Committee.  Were it not for the
    availability of a review before the HPARB, I would have been inclined to uphold
    the application judges order quashing the Colleges decisions.  The
    far-reaching nature of the Complaints Committees decisions, made without
    giving Volochay the procedural fairness to which he was entitled, would have
    been an exceptional circumstance justifying early judicial review.

[80]

But,
    as I have found that a review before the HPARB was an adequate alternative remedy,
    Volochay must be able to point to some exceptional circumstance to justify
    resort to the courts instead of review by the Board.  He has not been able to
    do so.  And I can see none.  For example, I see no evidence of hardship, or prejudice,
    or costs, or delay that would support Volochays decision to bypass the HPARB
    and apply for judicial review.  Indeed, Volochay invoked the administrative
    review process for 15 months, only to withdraw his request shortly before the
    hearing date.  He must, therefore, accept responsibility for the delay and any
    increased costs.

E.

conclusion

[81]

I
    therefore conclude that the application judge was wrong in principle to grant
    judicial review.  It is thus not necessary to consider the Colleges final
    submission that Volochays conduct after S.D. filed her complaint disentitled
    him to relief.  I would allow the appeal, set aside the order of the
    application judge and dismiss Volochays application for judicial review.

[82]

I
    offer this final comment.  The Complaints Committee made a decision not simply
    to refer the S.D. complaint to discipline, but to call for an examination of
    Volochays entire practice. And it made this decision with complete disregard
    for Volochays rights under the Code and at common law.  He was entitled to
    better from his governing body.  At the same time, however, he was not
    justified in bypassing the reviewing body specifically established under the
    Act to hear parties dissatisfied with a decision of the Complaints Committee.  Whether
    Volochay could now reinstate his request for review before the HPARB was not
    before us.

[83]

The
    College is entitled to its costs of the judicial review in the Divisional Court,
    which I would fix in the amount of $10,000, inclusive of disbursements and all
    applicable taxes. The College is also entitled to its costs of the appeal,
    including the motion for leave, which I would fix in the amount of $12,500,
    inclusive of disbursements and all applicable taxes.

Released:
August 20, 2012 (J.L.)

John Laskin J.A.

I agree
    D. OConnor A.C.J.O.

I agree
    E.A. Cronk J.A.





[1]
Unless otherwise indicated, all references to statutory provisions
    are those in place at the time of the complaint. Slight changes to many of
    these provisions came into force on June 4, 2009 as a result of Schedule M to
    the
Health Systems Improvement Act
, 2007, S.O. 2007, c. 10.



[2]
Lamer C.J.C. did find that the trial judge exercised his
    discretion unreasonably in failing to consider that the appeal tribunals lacked
    sufficient independence from the Band Chiefs and Councils.


