A Federal Court judge has dismissed a former First Nation general counsel’s attempt to challenge an adjudicator’s decision before the employment dispute process was complete, citing the importance of allowing administrative proceedings to finish before judicial intervention.
C.T. was dismissed from her position as general counsel for O’Chiese First Nation in 2019 after nine years in the role. She successfully argued before a Canada Labour Code adjudicator that her termination was unjust, but the adjudicator declined to order her reinstatement or award punitive and aggravated damages.
The adjudicator retained jurisdiction to determine the appropriate amount of damages and adjourned the proceedings to gather additional information from C.T. However, before those proceedings could conclude, C.T. filed an application for judicial review in Federal Court, arguing the adjudicator was biased and had unreasonably denied her reinstatement and enhanced damages.
Doctrine of prematurity applied
The court applied the doctrine of prematurity, which prevents parties from seeking judicial review when an administrative decision-making process has not been completed. Justice Battista found this rule was designed to show “judicial respect for administrative decision makers,” prevent “fragmented and piecemeal legal proceedings,” and ensure courts benefit from “a complete set of findings from the administrative decision maker.”
The court noted the Canada Labour Code contains strong language restricting judicial interference in unjust dismissal proceedings. Section 243 states that orders “shall not be questioned or reviewed in any court” and prohibits any court process “to question, review, prohibit or restrain” adjudicators in their proceedings.
Justice Battista said allowing C.T. access to court for preliminary review “works against the procedural efficiency intended by Parliament in the unjust dismissal process” and “offends one of the justifications for the rule against premature intervention.”
Delay and expense concerns
The court emphasized how the premature judicial review created unnecessary delay and expense. The timeline showed C.T. was terminated in June 2019, hearings were conducted between July 2020 and May 2021, the adjudicator’s decision came in November 2022, and C.T. immediately launched her court challenge in December 2022.
The parties were told the adjudicator needed “at most one additional hearing day for the determination of damages,” but instead the proceedings were paused for nearly three years while the judicial review proceeded. The court record exceeded 4,000 pages and involved multiple motions.
Justice Battista warned that proceeding with the application would create “a voluminous, multi-tiered, confusing mess” because the adjudicator would eventually need to resume work regardless of the court’s decision, potentially leading to further judicial review applications.
Bias allegations rejected
C.T. alleged the adjudicator showed bias by treating her differently than opposing counsel in several ways: requiring her to disclose witness lists while the other side did not, telling her not to interrupt during closing arguments while allowing interruptions of her submissions, criticizing her for arriving close to hearing start times, asking her to point out supporting evidence while not making the same request of opposing counsel, and requiring her to use formal titles while allowing opposing counsel to call her by her first name.
The court found these incidents reflected “hearing management” and did not meet the threshold for bias, which requires “clear and obvious” breaches of fairness. The court also noted C.T. never raised these bias concerns with the adjudicator during the 18-month period between the hearing’s conclusion and the decision, suggesting she may have waived her right to make such allegations.
No natural break exception
C.T. argued the proceedings had a “natural break” between the liability and remedy phases that justified judicial intervention. Courts have recognized this exception when administrative proceedings are bifurcated in a way that doesn’t cause the problems prematurity rules are designed to prevent.
However, Justice Battista found no “neat separation between the merits and the remedy” since C.T. was challenging the adjudicator’s conclusions on remedy before those conclusions were complete. Unlike cases where adjudicators supported judicial intervention, here the adjudicator had objected to the court proceeding while her work remained unfinished.
In a December 2022 letter, the adjudicator filed an objection stating the judicial review request was “premature because she had not issued an order.” She later suspended her work “in this unusual circumstance—when an application for judicial review has been made when not all issues have been adjudicated.”
Incomplete record problematic
The court stressed that effective judicial review requires examining both an administrative decision’s reasoning process and outcome. With no final order issued and additional evidence still to be gathered, the court lacked the complete record needed for proper review.
The adjudicator had specifically requested additional evidence related to remedy, but that evidence was not part of the court record. Despite this, C.T. made extensive submissions including detailed financial analyses the adjudicator never saw. Justice Battista said the court would “usurp the Adjudicator’s role by considering this evidence, let alone reaching any conclusions based on it.”
Costs awarded despite self-representation
The court awarded costs to O’Chiese First Nation despite C.T. representing herself. While costs are rarely awarded against self-represented litigants, Justice Battista noted C.T. is a lawyer who “has faced no apparent impediments in representing herself.”
The judge acknowledged the proceedings involved more than employment matters for C.T., implicating “the meaning she derives from her roles as an Indigenous woman, a member of her community, and a lawyer.” However, he said the First Nation deserved finality after being placed in the “unusual position of prematurely defending a decision made against them” in a dispute that has stretched over five years.
For more information, see Tuharsky v. O’Chiese First Nation, 2025 FC 1128 (CanLII).
